About the author(s):
Daniela Ciobanu is a LL.M. candidate in Public International Law at Utrecht University, with specialization in Conflict and Security. She has completed her Bachelor in International and European Law at The Hague University of Applied Sciences. She is interested in various International Humanitarian Law issues ranging from occupation, human rights in occupied or controlled territories, to ensuring (personal) data security of civilian systems in the context of cyber operations. Her interest in these topics developed not only from her academic studies, but also from her internship at Kosovo Specialist Chambers and Specialist Prosecutor’s Office, as well as her growing up in a post-Soviet country (i.e. Moldova) facing occupation issues.
In two recent blog posts regarding humanitarian assistance in the aftermath of the earthquake in Türkiye and northwest Syria, the expectations between law and reality has set two different positions on the matter. On the one hand, Jelena Pejichas argued that under International Humanitarian Law (‘IHL’), humanitarian aid, besides the facts that it needs to be impartial, humanitarian, non-discriminatory, provided by an organization, is practically possible only with the consent of the Party(ies) involved . On the other hand, Rebecca Barber argues that the narrow interpretation of international law has led scholars and humanitarian organizations to believe that humanitarian assistance without territorial State’s consent or without a Security Council resolution (which outweighs State’s consent) is illegal, but even if it was true, such ‘illegality’ would be precluded by a plea of ‘necessity’ (article 25 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts).
This post tries to unravel some of the legal issues surrounding the requirement of ‘consent’, and whose consent matters in non-international armed conflicts (‘NIAC’), where rebel groups control a part of the State’s territory. It highlights some limitations and consequences of ‘trespassing’ on the consent of the host State and/or rebel groups when sending humanitarian assistance to areas outside of State control. It finds that although a normative argument can be made that humanitarian aid should be granted even without host State’s consent, and the consent of the rebel group could suffice, a doctrinal interpretation of IHL and the lack of customary law to sustain this perspective, bars the practical realization of humanitarian assistance without State’s consent.
The IHL framework on consent for humanitarian assistance in areas controlled by rebel groups
A. Host State’s consent: an obligation?
Under IHL applicable in NIAC, common article 3(2) to the four Geneva Conventions specifies that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” Although the commentary of common article 3 stipulates that the humanitarian organization needs consent, neither the treaty nor the commentary clarifies whose consent is necessary and how it should be granted (para. 817).
In an NIAC where the armed group controls territory and the State is a party to the Additional Protocol II of the Geneva Convention, article 18 (2) of AP II specifically clarifies that relief actions “shall be undertaken subject to the consent of the High Contracting Party concerned”. The High Contracting Party is considered the government in power (see AP II Commentary, para. 4884) and in cases where it is not possible to determine who are the ‘authorities concerned’, the consent will be presumed especially in situations of primordial importance, for instance saving the civilian population from starvation, since this is a prohibited method of warfare (article 14 AP II; Rule 53 ICRC study). If a State (e.g. Syria) is not a party to APII, the applicable framework remains common article 3 of the GCs, international customary humanitarian law applicable to NIAC and IHRL, which continues to apply even in times of armed conflict (ICJ, Wall Adv. Opinion, para. 106)
According to Rule 55 of the ICRC study on customary law “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need… subject to their right of control.” Although consent is legally and practically needed, arbitrary or capricious reasons for refusing humanitarian assistance by a State is not permitted. The ICJ has held in the Nicaragua case that States cannot justify refusal of humanitarian assistance as an interference in internal affairs (para 242). However this leaves an open interpretation of when a justification provided by States is arbitrary: could the host State impede humanitarian relief because it fears that it will help the NSAG in fighting the very government? This will be looked at in the next paragraph.
i. Issues relating to State’s consent
The idea that the host State needs to consent is clearly interlinked with the issue of sovereignty and territorial integrity. States do not want to allow external actors to intervene in their internal affairs, even when the State itself no longer has control of a part of its territory. A Sovereign State could then withhold consent, but only if justified (i.e. the State has enough resources to help the population; the humanitarian assistance is not impartial/neutral; for security reasons), however (under IHL) there is no mechanism to verify whether there is indeed a ‘legitimate’ justification- which runs the risk of legitimizing any reason, especially if this reasons are linked to terrorism threats. Indeed, IHRL discourse could limit the justifications, for instance if it is clear from the circumstances that the right to life (article 2 ICCPR), right to food and health (article 2(1) ICESCR) will be breached because the refusal will lead to starvation of civilian population – the refusal is not justified.
On the other side of the coin, it is important to consider whether a humanitarian organization can still provide its assistance in circumstances where the host State has failed to give consent? In her blog, Rebecca Barber argues that humanitarian assistance is not a violation of State’s sovereignty or any other rule of international law (e.g. UN Charter; customary international law), and even if it were, this is precluded by a plea of ‘necessity’. An argument can be made that a State’s sovereignty does not encompass an absolute freedom to ignore international human rights law (ICJ, Barcelona Traction (1970), para. 33). Thus, where there is a humanitarian need, which concern basic rights of the human person, it can be argued that a State is not free to decide whether its population (who is part of the very existence of the State – see for instance article 1(a) of Montevideo Convection) lives or dies. Consequently, if humanitarian assistance is provided in line with the object and purpose of IHL and IHRL, namely to protect and respect the life and rights of civilians, it can be accepted that there is no violation of State’s sovereignty, since the humanitarian assistance does not have any hostile aim against the State’s territory or integrity.
Yet, internationally customary law does not seem to have crystalized so as to allow a humanitarian organization to cross border into a territory without State’s consent. Even if previous UNGA resolutions (i.e. Resolutions 49/21N (1994) and 71/93 (2016)) could be used as evidence of opinio juris (ICJ, Nuclear Weapons Adv. Op. para.70), the issue still remains as to whether the States which are affected by the conflict will agree to such a custom? If they persistently object (ICJ, North Sea Continental Shelf cases, para. 74), which is exactly what Syria does, such norm could only be regarded as what the law should be, rather than what the law is in reality for them.
With the plea of ‘necessity’ as precluding an international wrongful act could be a possible avenue to circumvent the lack of consent from the territorial State, however it is still debated whether a non-State actor (i.e. impartial humanitarian NGO) could invoke a circumstance precluding its wrongfulness, since the Rules on State Responsibility are meant to apply to States (article 42 and 48 ARSIWA). If such a justification/invocation was accepted, the ILC commentary on ARSIWA (p.80) leaves enough room to interpret the requirements of necessity in circumstances where the life of civilian population is at high risk, and especially where the devastating consequences of natural disaster like an earthquake call for the interest of the whole community to alleviate the affected population. Interpreting the law in the interest of the population might be desirable, but this leaves another matter for discussion, namely whether the consent of the NSAG that controls the territory matters at all?
Nonetheless, from a practical point of view, even if an impartial humanitarian organization is not breaching State’s sovereignty, it is hard to imagine how it would enter the territory without the State’s consent? Bureaucratic requirements such as visa, travel permits, immigration laws will hardly be trespassed without the host State’s consent. Of course, an argument could be made that these are circumvented when the relief is sent through the borders of neighboring States, but once the NGO enters the host State, they could be lawfully stopped by domestic (immigration) laws.
B. The consent of the non-State armed groups – necessary, indispensable or rather trivial?
Having considered the relevance of the consent of the territorial State, I will now go on to consider the relevance of the consent of the non-State armed groups. It has been estimated by the ICRC that close to 80 million people live under the control of a rebel group, including the northwest part of Syria, thus subjecting their daily life to the rebel’s group governance and potentially on-going violence, whose humanitarian needs (water, food, medical services) might not be met due to the rebel’s limited resources. In circumstances where the territorial State has no or little control to an area under rebel control, the State has an individual responsibility to cooperate internationally to ensure that humanitarian assistance reaches the affected population (ICESCR, General Comment 14 (2000), para. 40). Such cooperation could entail engaging directly with the NSAG or other States in order to secure that the population receives the necessary relief. Furthermore, an argument could be made that if the territorial State insists to remain ‘sovereign’ even in areas outside of its control – it should as a matter of law provide (rather than impede) in one way or another humanitarian aid, and this may involve engaging with the armed group.
Although, rebel groups are expected to conform to IHL obligations (i.e. common article 3, IHL Customary Law), IHL treaties are silent on whether there is a clear obligation for the NSAG to consent to humanitarian assistance or whether their consent is needed as a matter of law. The ICRC (Rule 55) and several scholars (Y. Dinstein; F. Schwendimann; N.K. Modirzadeh, D.A. Lewis & C. Bruderlein) agree that in order to safely deliver humanitarian relief to the civilian population under the control of the rebel groups, the consent or cooperation with the group is practically necessary. Asking for the consent from the NSAG would not legitimize nor grant legal status to the group, since common article 3(4) of the GCs mentions that “the application of the preceding provisions shall not affect the legal status of the Parties to the conflict”. An argument can be made that armed group’s consent is necessary not only for practical considerations, but also as a matter of law. In situations where armed groups control territory and where they assume State functions, armed groups can be considered ‘guarantors’ of the safety of the civilian population under their control, and subjects/addressees of international law.
i. Beyond the NSAG’s consent
Although the motives of NSAG differ and their consent cannot be ignored (whether given strategically or for the benefit of the population), for humanitarians the challenge lies in balancing two interests: aiding the civilian population and operating in an impartial manner so as to avoid the legitimization of armed group’s interests. In such situations, it becomes important to consider various methods of negotiating with the NSAGs for the benefit of the population, but far from illegally aiding terrorist groups. Several literatures on rebel governance sheds light on what can be done to enhance cooperation between armed groups and humanitarian organizations (e.g. Marco Sassoli (2010); Cedric Ryngaert et al. (2011); Annyssa Bella et al. (2022)). Some methods include finding ways to convince the armed groups of the benefits of such aid, and perhaps even the State’s attitude towards the rebel groups itself could shift in order to engage in various commitments for the betterment of the population.
Concluding Remarks
The sovereignty discourse is rather straightforward: without territorial State’s consent humanitarian assistance cannot be granted to the civilian population in need even in territory controlled by rebel armed groups. The refusal of consent cannot be arbitrary and arguably trespassed in situation of high risks to the life of the civilian population (i.e. starvation), although this could still be impeded by bureaucratic laws. From a more ‘humanitarian’ and moral perspective, the consent of the State is neither necessary nor the only one that is needed, thus the humanitarian organization should be able to fulfill its relief to the affected population since the ‘necessity’ argument compels a demanding intervention rather than staying indifferent in the face of death. But even if such a practice should be forming or is already forming, will this create other complex issues in relation to whose consent prevails and whose responsibility is engaged?