Humanitarian Access: Yemen in Crisis

Publication Date: 
Tuesday, September 15, 2015

International Law Governing Humanitarian Access

International humanitarian law (IHL), in both treaty and customary form, governs humanitarian access in situations of international armed conflict (IAC), non-international armed conflict (NIAC), and occupation. Despite the involvement of thousands of troops from Saudi Arabia, Egypt, and other Middle Eastern states, and funding and political support from the United States and likely from Iran, the conflict in Yemen is currently best characterized as a NIAC because the physical conflict remains within the borders of Yemen. As such, it is governed by IHL applicable to NIAC, including the Geneva Conventions’ Common Article 3 and Additional Protocol II (AP II), both ratified by Yemen, as well as applicable customary international humanitarian law.

In NIAC, Common Article 3 of the four Geneva Conventions of 1949 requires “that persons taking no active part in the hostilities must be treated humanely, without any adverse distinction,” and “establishes the right of impartial humanitarian organizations to offer their services to the parties to NIAC.” A duty to accept humanitarian aid is arguably imposed by Article 18(2) of the Additional Protocol II, which provides that relief actions shall be undertaken “if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival.” However, those actions remain “subject to the consent of the High Contracting Party concerned,” leaving parties the option to deny consent to humanitarian access, though customary international law dictates that parties may not refuse aid on an arbitrary or capricious basis.

The key difficulty with this body of law is that the standard for arbitrary and capricious denial of consent is unclear; as such, it is nearly always possible for a party to the conflict to refuse, delay, and impede humanitarian access with impunity. In the naval blockade of Yemen, for instance, Saudi-led inspectors have nearly paralyzed the shipment of desperately needed humanitarian aid to the country as they allegedly search for weapons being delivered to Houthi rebels. It remains unclear whether this delay and refusal of aid constitutes an implicit withholding of consent to aid, or whether the concern over weapons would be considered a valid or arbitrary reason for the delays; no clear framework for the differentiation between valid and arbitrary reasons for refusal exists at the present time.

Further complicating the issue of consent is the nature of conflict itself, which may prevent secure or reliable humanitarian access, even with official consent. There is no governing law that determines whether parties to a conflict may implicitly deny access to humanitarian agencies by refusing to agree to humanitarian pauses or safe corridors for aid workers, for instance. The presence of ongoing conflict also frequently makes it difficult for humanitarian actors to safely gain access to areas in need of aid, and attacks on humanitarian aid workers are an increasingly troubling phenomena in conflicts from Yemen to Afghanistan to Mali.

There thus remains a great need for the international community to identify parties’ obligations to consent to humanitarian aid and clarify the standard for valid or arbitrary reasons for denying consent. Moreover, there is a need for more effective accountability measures to ensure that arbitrary refusals of aid that contribute to the widespread suffering and starvation of civilians do not go undeterred or unpunished. The need to address the issue of humanitarian access with a comprehensive legal framework that balances the needs of civilians, humanitarian agencies, and states has been addressed by academics, lawyers, and international organizations. The UN Secretary-General has called for legal reform to improve humanitarian access to civilians in conflict in several reports, and OCHA and Oxford University are currently collaborating on the creation of humanitarian law guidelines and policy papers that directly address the question of what is and is not a valid reason for the refusal of humanitarian aid.

Starvation as a Method of Warfare

A more clearly defined exception to the requirement of consent for humanitarian access exists where the lack or refusal of aid would lead to starvation, in which case there is no valid justification for a state to withhold consent. This exception implies that the more severe the humanitarian crisis, the more likely the refusal to accept aid will be considered arbitrary or invalid. A refusal of aid may be explicit, as in the case of Syria, or implicit and accomplished through the use of blockades, a method of warfare that has been condemned by the UN Security Council and the UN Commission on Human Rights in conflicts in Afghanistan and Iraq. Yemen, which imports 90% of its food in peacetime, is now under such a blockade, which has fueled a severe humanitarian crisis and put the civilian population at risk of widespread starvation and famine.

As a method of warfare, starvation of civilians is prohibited by Article 54(1) of the AP I, Article 14 of AP II, and Rule 53 the ICRC compilation of customary international humanitarian law, and is considered a war crime under the Rome Statute of the International Criminal Court. However, absent a rising norm of customary law to the contrary, starvation of civilians is only defined as a war crime in IAC, and thus would not be applicable to NIACs such as in Syria or Yemen; and even if it were applicable in NIAC, it is not yet clear if this starvation is being used as a deliberate method of warfare in Yemen. Nonetheless, the prohibition of starvation as an exception to the need for consent of the state supports the position that there is a developing “right” of civilians to humanitarian assistance in extreme cases of humanitarian crisis, regardless of whether the conflict is international or domestic in nature. Even if not a war crime, mass malnourishment and starvation of the civilian populations remains a clear failure of humanitarian response and a challenge to the spirit of humanitarian law.

Moving Forward

In light of the importance of humanitarian access in armed conflict, concrete steps need to be taken by individual state parties to conflict, as well as the international community as a whole, in order to improve the standards for humanitarian access and hold states that arbitrarily refuse aid accountable for their actions. While the Security Council’s ability to authorize intervention can and has been used to forcibly improve access for humanitarian agencies, e.g. in Syria, the Council remains subject to political stalemate that prevents it from being used as a consistent or effectual tool of accountability. Likewise, unilateral or multilateral military interventions, which can be a practical method of opening borders, are sporadic, politically risky, and do not provide the level of legality, consistency, or protection that is necessary for effective humanitarian action. Whether with regard to the conflicts in Yemen, Syria, or elsewhere, these slow political and legal processes are failing to keep pace with humanitarian agencies’ need for immediate and reliable access.

As such, there is a need for international bodies and states to overcome political differences and implement a stronger and more consistent framework for guaranteeing humanitarian access, as well as legal accountability for states that arbitrarily or capriciously deny needed access through the explicit or implicit withholding of consent. The upcoming reports by OCHA will hopefully provide a framework for addressing the gaps in international law in the area of humanitarian access, yet both states and international organizations need to assume responsibility for increasing assistance and protection for civilians in armed conflict by creating and enforcing an obligation to provide access to humanitarian agencies. Without a shift in the law, crises exacerbated by a lack of access, as seen in Yemen, will continue to occur. 

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