Workshop Report: cross-border relief operations in situations of armed conflict

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Principles for Practice

By Dr Mohamad Janaby, Lecturer, University of Glasgow, School of Law

“The 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.”

Rule 55 of the ICRC’s Customary International Humanitarian Law Database

The Centre for Humanitarian Dialogue organised a workshop on 25–26 November 2024 to examine the current legal framework governing humanitarian assistance in armed conflicts. A key focus of the workshop was the potential revision of a critical condition imposed by this framework: the requirement for the consent of the territorial state to conduct relief operations. Recent armed conflicts around the world, including those in Gaza, Syria, and Myanmar, have highlighted instances where territorial states have unlawfully withheld consent for the provision of humanitarian assistance.

Participants at the two-day workshop, comprising humanitarian practitioners and legal experts, deliberated on whether the international legal framework regulating the delivery of humanitarian assistance should or could be revisited, particularly with respect to the consent requirement for cross-border relief operations.

The Legal Regime of Humanitarian Assistance

Under international human rights law, states are obligated to ensure the basic needs of their populations. This obligation is closely connected to various human rights recognised in international legal instruments, some of which have attained the status of jus cogens norms. A recent development within this framework posits that if a state is unable to meet the basic needs of its nationals due to armed conflict or a natural disaster, its citizens are entitled to receive humanitarian assistance, either nationally or internationally. This concept is commonly referred to as the “right to humanitarian assistance.”

The regulation of humanitarian assistance during armed conflicts is addressed with greater specificity under international humanitarian law. The 1949 Geneva Conventions and their Additional Protocols establish explicit rules governing the delivery of such assistance. These provisions apply to international armed conflicts, situations of occupation, and non-international armed conflicts. For example, Article 23 of the Fourth Geneva Convention obligates parties to the Convention to “permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases”. Similarly, Article 59 of the same Convention stipulates that “If the whole or part of the population of an occupied territory is inadequately supplied, 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”.

Relief operations under these provisions may be conducted by states or non-governmental organisations (NGOs) such as the International Committee of the Red Cross (ICRC). Furthermore, all contracting parties to the Geneva Conventions are obligated to permit and protect the consignments essential for such operations. In non-international armed conflicts, Common Article 3 of the Geneva Conventions imposes obligations on parties to the conflict to treat “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat,” humanely. This article also recognises the possibility of providing humanitarian services through impartial organisations. Additionally, Article 18 of Additional Protocol II, which pertains to non-international armed conflicts, states:

“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”.

These two provisions serve as the primary sources for regulating humanitarian assistance in non-international armed conflicts. The obligation to facilitate and protect relief operations is also considered a customary rule, making it applicable to both international and non-international armed conflicts. In this regard, Rule 55 of the ICRC’s Customary International Humanitarian Law Database specifies:

“The 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.”

This comprehensive legal framework underscores the obligation of states and parties to armed conflicts to permit and facilitate the delivery of humanitarian assistance in order to alleviate human suffering, while ensuring compliance with international humanitarian law.

Conditions for Cross-Border Relief Operations

Humanitarian relief operations may be undertaken by states, governmental organisations, or NGOs. To be lawful, such operations must adhere to principles of humanity, impartiality, and non-discrimination, as articulated in Article 70 of Additional Protocol I. Crucially, these operations must also obtain the consent of the territorial state- a requirement rooted in Common Article 3 and explicitly stated in Article 18(2) of Additional Protocol II and Article 70 of Additional Protocol I. Adherence to this requirement ensures that relief efforts are not perceived as interventions in armed conflicts or as hostile acts.

Can the Requirement for State Consent Be Waived?

The pivotal question is whether humanitarian relief can be delivered without the consent of the territorial state. While international law obligates states to consent to relief operations when they cannot meet their population’s needs, arbitrary withholding of consent constitutes a breach of international law. Such conduct may even attract individual criminal liability if it results in starvation as a method of warfare, as defined under Article 8(2)(b)(xxv) of the Rome Statute of the International Criminal Court.

Relief operations without state consent may, however, be legally justified under specific circumstances. For instance, the United Nations Security Council, acting under Chapter VII of the UN Charter, can authorise such operations, as seen in Resolution 2165 (2014), which permitted cross-border humanitarian assistance in Syria. However, the effectiveness of this mechanism is often undermined by the risk of a veto from permanent Security Council members.

Some experts have argued that relief operations could proceed in areas controlled by non-state actors without the territorial state’s consent, provided the aid does not transit through state-controlled territories. Yet this view is contentious. Delivering aid without state consent risks violating state sovereignty and could contravene counter-terrorism laws if the recipient territory is governed by designated terrorist organisations. Additionally, such operations could breach domestic laws, rendering them criminal acts under national legal frameworks.

Workshop Proposal

The workshop examined a draft document titled Conducting Cross-Border Relief Operations in Situations of Armed Conflict: Identifying Principles for Practice. This document advocates revisiting the requirement for territorial state consent in the delivery of relief operations. It principally relied on Article 70 of Additional Protocol I to argue that such consent is not mandatory. The document interprets Article 70 as follows:

“relief actions ……. shall be undertaken (not may), subject to the agreement (rather than consent) of the Parties concerned in such relief actions (neither concerned by, nor High Contracting Parties).”

The document draws on the opinions of some commentators who assert that the language of Article 70 of Additional Protocol I, when compared to Article 18 of Additional Protocol II, supports the argument that obtaining the consent of the territorial state is not a legal necessity for delivering humanitarian assistance. For instance, Article 70 employs the terms “a Party to the conflict” and “Parties concerned” rather than “High Contracting Parties.” Furthermore, it refers to an “agreement” between the “parties concerned in” the “relief actions,” which “shall be undertaken.” In contrast, Article 18(2) of Additional Protocol II explicitly requires state consent, stipulating that “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.”

Accordingly, the document suggests that state consent is not required under Article 70 and that the reference to “agreement” is intended to regulate the modalities of delivering humanitarian aid rather than to establish an initial prerequisite for consent. In the context of non-international armed conflicts, it further argues that Article 18(2) should be read in conjunction with Article 18(1), which pertains to humanitarian activities conducted by local agencies.

However, this interpretation is not widely supported by legal experts. Many argue that any external humanitarian operation conducted without the consent of the territorial state constitutes a violation of state sovereignty. This view is strongly supported by state practice, emphasising the enduring significance of sovereignty in international law.

Alternative Legal Justifications

Some experts propose that a state or an international organisation could offer humanitarian assistance to civilians in dire need, even when the territorial state arbitrarily withholds its consent, by invoking two principles of state responsibility: “necessity” and “countermeasures.” Both concepts are recognised as circumstances precluding state responsibility.

Necessity may be invoked to justify an otherwise wrongful act if it is the only way to safeguard an “essential interest” threatened by a grave and imminent danger. One of the critical conditions for invoking necessity as a preclusion of responsibility is that the act in question must not seriously impair an essential interest of the state suffering the wrongful act. It is argued that delivering humanitarian assistance to civilians constitutes an essential interest of the entire international community. However, this argument could clash with the essential interests of the territorial state, particularly its territorial integrity. To address this, some experts suggest relying on air drops of humanitarian relief supplies, although this too is contentious, as it raises questions about whether such actions impair the essential interests of the territorial state.

Countermeasures have also been proposed as a legal basis for providing relief operations without state consent. Article 22 of the Draft Articles on State Responsibility stipulates that “[t]he wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.” Several conditions must be met to justify countermeasures in this context. First, they must be taken by a state or international organisation that has been injured by an internationally wrongful act. The act of arbitrarily withholding consent for the delivery of humanitarian aid may constitute such an internationally wrongful act, especially when evaluated in light of erga omnes obligations—those owed to the entire international community. Given that international humanitarian law is often characterised as embodying erga omnes obligations, it could provide a legal basis for states and international organisations to rely on countermeasures to ensure the delivery of humanitarian assistance. However, additional conditions for countermeasures, including proportionality and temporality, must also be satisfied.

Despite the potential of these two circumstances to preclude international responsibility, significant challenges remain. Courts have historically adopted a strict approach to the application of necessity, making it a difficult justification to rely upon in practice. Furthermore, invoking necessity or countermeasures implicitly acknowledges that cross-border relief operations without consent constitute a wrongful act under international law. Additionally, these principles are applicable only to relief operations conducted by states and international organisations, as NGOs are not recognised as subjects of international law. Since the majority of humanitarian relief operations are carried out by NGOs, the practical utility of these principles for addressing the problem of state consent is limited.

In light of these challenges, some experts recommend incorporating NGO activities into the frameworks of state bodies, effectively transforming them into governmental relief operations. This approach could mitigate the limitations of relying on necessity and countermeasures while ensuring compliance with international legal frameworks.

A Proactive Obligation for Third States

In contemplating this topic further, I considered the potential to rely on the obligation of third states to ensure respect for international humanitarian law. The updated Commentaries on the Geneva Conventions (2016) by the International Committee of the Red Cross (ICRC) offer a broad interpretation of this obligation, emphasising proactive responsibilities. Paragraph 164 of the Commentary states:

The High Contracting Parties also have positive obligations under common Article 1, which means they must take proactive steps to bring violations of the Conventions to an end and to bring an erring Party to a conflict back to an attitude of respect for the Conventions, in particular by using their influence on that Party. This obligation is not limited to stopping ongoing violations but includes an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred.

Applying this principle to situations where a territorial state unlawfully withholds consent for humanitarian assistance—potentially leading to starvation among the civilian population—implies that third states, particularly neighboring states, are under an obligation to offer humanitarian assistance to prevent such violations.

Indeed, this obligation must be carefully balanced against the principle of respect for state sovereignty. Providing relief without the consent of the territorial state inevitably creates a legal conflict. However, if the withholding of consent results in violations of jus cogens norms—such as those related to the protection of fundamental human rights, the prevention of genocide, or war crimes—the priority should arguably shift towards ensuring the delivery of humanitarian assistance.

I also believe that this approach is more tenable than relying on circumstances precluding wrongfulness, such as necessity. Invoking necessity inherently acknowledges that providing humanitarian assistance without consent constitutes an illegal act under international law. In contrast, framing the delivery of humanitarian assistance as a positive obligation rooted in international humanitarian law reinforces its legality in such contexts.