Is There a Right to Humanitarian Assistance?

Publication Date: 
Wednesday, July 15, 2015

Now in its fifth year, the war in Syria has produced what the UNHCR calls the “biggest humanitarian emergency of our era.” At least 220,000 Syrians have been killed, over half of the country’s population have been displaced, and over 4 million refugees have fled abroad, pushing global forced displacement to record levels, threatening to destabilize the region and fueling a migrant crisis on the Mediterranean Sea. The humanitarian crisis in Syria continues to worsen as the Assad government maintains a position of denying or placing severe restrictions on humanitarian access. These constraints are exacerbated by insecurity due to escalating fighting, the rise of the Islamic State, deliberate attacks against aid workers, and obstructions of humanitarian relief efforts. In the face of this devastation, do the people of Syria — or any conflict zone, for that matter — have a right to humanitarian assistance?

International humanitarian law (IHL), which establishes fundamental protections for civilians in armed conflict, contains a patchwork of provisions obliging belligerent parties to guarantee or allow for the provision of basic relief to civilian populations during international armed conflict, occupation, and to a lesser extent, non-international armed conflict. Does IHL grant a right to humanitarian assistance in armed conflict, as many advocates argue, and if not, has the Syrian crisis helped to crystalize such a norm under customary international law?

Situations of Occupation

IHL distinguishes in its application between situations of international armed conflict (IAC), non-international armed conflict (NIAC), and occupation. The conflict in Syria — taking place between government forces and non-state armed groups — is qualified as a non-international armed conflict, to which we will return later. As an illustration, however, let us first examine situations of occupation, where the duties of armed parties toward the civilian population are most extensive. Under IHL, the Occupying Power has a duty to ensure, to the fullest extent possible, the food and medical supplies [GC IV, art. 55(1)] as well as public health and hygiene [GC IV, art. 56] of the population of the occupied territory. AP I adds “clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship” to the list of guarantees in occupied territories and reiterates that “[r]elief actions for the benefit of the civilian population of occupied territories […] shall be implemented without delay”[AP I, art. 69]. If supplies are inadequate, “the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal”[GC IV, art. 59]. Furthermore, the Geneva Conventions require that when the Occupying Power is responsible for population transfers, it “shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition”[GV IV, art. 49]. AP II, art. 17 extends this provision to non-international armed conflicts as well.

International Armed Conflict

Unlike in situations of occupation, during international (or non-international) armed conflict, belligerent parties are under no corollary obligation to provide direct humanitarian assistance to the civilian population on the territory under their control. However, they do have various duties towards the civilian population, including to protect civilians from military operations and to allow for the provision of relief supplies necessary to the survival of the civilian population.

In situations of international armed conflict, the Geneva Conventions prohibit belligerent parties to use “starvation of civilians as a method of warfare”[AP I, art. 54(1)], or to “attack, destroy, remove or render useless objects indispensable to the survival of the civilian population” [AP I, art. 54(2)], though exceptions or derogation are permitted in cases of military necessity. The Geneva Conventions also place certain limited obligations on belligerent parties to allow the free passage of relief supplies for particularly vulnerable civilian groups — namely children under fifteen, as well as pregnant and nursing mothers — while recognizing the right of States to inspect the contents and verify the destination of the relief, and to refuse passage if they have well-founded reasons to presume that the relief supplies are used for military advantage [GV IV, art. 23]. Additional Protocol I expands upon these guarantees, requiring that if the civilian population of a territory is not adequately provided with supplies essential to its survival, “relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”[AP I, art. 70(1)]. This final clause requiring the agreement of the Parties to outside humanitarian aid will be the subject of further discussion below.

Furthermore, in IAC all Parties must “allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel […], even if such assistance is destined for the civilian population of the adverse Party”[AP I, art. 70(2)]. Parties may not divert or delay relief supplies for other purposes, except in cases of urgent necessity and in the interest of the civilian population, though they may set certain conditions, including seach, under which passage is permitted [AP I, art. 70(3)]. Finally, Parties have an obligation to “protect relief consignments and facilitate their rapid distribution” [AP I, art. 70(4)], and to respect, protect and assist, to the fullest extent practicable, relief personnel [AP I, art. 71]. There is, however, no provision of IHL establishing an explicit right to humanitarian aid for civilian populations in international armed conflict.  

Non-International Armed Conflict

Similar, though less extensive, duties to allow and facilitate the provision of humanitarian relief exist in non-international armed conflict, applicable in the case of Syria. Common Article 3 to the four Geneva Conventions — applicable to non-international armed conflict — stipulates only that “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.”[GC I-IV, art. 3]. Additional Protocol II extends many provisions of IHL applicable in IAC to NIAC as well, including the prohibition on “[s]tarvation of civilians as a method of combat” as well as the prohibition on parties to “attack, destroy, remove or render useless objects indispensable to the survival of the civilian population” [AP II, art. 14]. Furthermore, “If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”[AP II, art. 18(2)]. Thus, while IHL places these obligations upon belligerents in NIAC, there is even less basis for an established right to humanitarian aid in non-international armed conflict, and outside relief actions remain subject to state consent.

Notably, Syria is not a party to APII; nonetheless, under the International Committee of the Red Cross (ICRC)’s interpretation of customary international law binding on all states, “[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control”[ICRC, Rule 55]. While this rule extends AP I, art. 70(1) to non-international armed conflict, it does not go so far as to recognize an explicit right to humanitarian assistance in armed conflict, which remains the subject of considerable debate. The conflict in Syria, and the Assad government’s denial of humanitarian access amidst mounting human suffering, has brought new light and urgency this debate.

Access and Denial of Consent

As evidenced by the provisions outlined above, IHL attempts to balance the interests of the civilian population with the interests and sovereignty of the receiving State. It recognizes the entitlement of civilian populations to essential food and medical supplies in situations armed conflict and occupation, yet also makes outside relief actions contingent upon the “agreement” or “consent “ of the Parties concerned. The State’s right to deny humanitarian access under IHL is not unlimited, however. In light of the prohibition of “starvation of civilians as a method of warfare” in both IAC and NIAC, which constitutes a war crime in IAC under the Rome Statute of the International Criminal Court [Art. 8(2)(b)(xxv)], the Commentary to AP I, art. 70 clarifies that such denials should remain exceptional; states may not refuse access to humanitarian relief for arbitrary or capricious reasons. Certainly, a State may not refuse consent to humanitarian relief where such a refusal would lead to starvation; under customary international law, States may have an obligation to accept and facilitate neutral and impartial humanitarian assistance in a much broader set of circumstances.

What happens when a government does in fact withhold consent to humanitarian access on an arbitrary basis, as the Syrian government has been widely condemned for doing? Is there a case for cross-border aid without the consent of the host government under certain circumstances? As the humanitarian crisis in Syria escalated, and a few humanitarian organizations continued clandestine operations in Syria without authorization, this question sparked considerable debate in international law. In April 2014, a group of prominent legal experts argued that, due to Syria’s arbitrary denial, “there is no legal barrier to the UN directly undertaking cross-border humanitarian operations and supporting NGOs to undertake them as well.” Others have been more cautious, reaffirming the requirement for consent under IHL, absent a UN Security Council decision authorizing intervention. The Security Council did as much in Resolution 2165 of July 2014, authorizing — for 180 days, and later extended by twelve months — cross-border and cross-line access to Syria for the UN agencies and their implementing partners to provide humanitarian assistance. The resolution also established a monitoring mechanism. However, the Security Council’s authorization does not affirm or establish a right to humanitarian access under IHL; rather, it seems to underscore the norm of state consent, if Council authorization is required to overcome even “arbitrary denial” of humanitarian access.

While IHL does not grant an explicit right to humanitarian assistance in armed conflict, then, considerable debate remains as to whether such norm is has developed under customary international law. The conflict in Syria, and the Assad government’s denial of humanitarian access amidst mounting human suffering, has brought new light and urgency this debate.

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