About the author(s):
Barbara Pavlovicová is an LLM Candidate in Public International Law at Utrecht University, focusing on conflict and security. Previously, Barbara obtained her MA from the University of Groningen, where she specialized in international relations and international organization. Her research interests include international humanitarian law, armed groups, and the protection of cultural heritage in armed conflicts.
Non-State armed groups (NSAGs) are commonly viewed in a negative light due to the legal ambiguities they bring in various areas. Particularly in non-international armed conflicts, these groups are often depicted as obstructive forces capable of impeding humanitarian operations. Nevertheless, it has been shown that States, too, have utilised the blockage of humanitarian assistance intended for territories under NSAGs’ control to further their political and military agenda.
Additionally, cross-border humanitarian relief is often perceived as foreign support for NSAGs (p. 356). From a legal standpoint, delivering humanitarian assistance to territories under NSAGs control poses a contentious issue. One such question arises as to whether humanitarian assistance can be provided to the territories without the consent of the territorial State. Specifically, does providing humanitarian assistance in this scenario violate the sovereignty of the territorial State (see, e.g., here)? These issues will be explored in greater detail throughout this blog post.
In her recent post, Rebecca Barber points out that providing humanitarian assistance to the contested territories is lawful, supported by several arguments. The most interesting part of her blog refers to the issue of necessity. Barber argues that under the Articles on Responsibility of States for Internationally Wrongful Acts, delivering humanitarian relief is not necessarily unlawful if States or international organisations act in a way that is necessary to protect a vital interest from a significant threat.
Furthermore, I find her appeal to the United Nations for a broader interpretation of international law, prioritising civilian populations rather than government regimes, to be very pertinent. Considering that 64 million people reside in territories under NSAGs, the un/lawfulness of humanitarian assistance is highly relevant. In her contribution, Barber briefly mentions additional arguments that support the legality of delivering aid without the consent of the territorial State, which, however, due to the limited space of her blog post, were not discussed in depth. Therefore, this blog post will further elaborate and evaluate arguments favouring the legality of the matter presented.
The current state of the art of legal framework
Before discussing the lawfulness of providing humanitarian aid, it is necessary to examine the current legal framework concerning this matter. Firstly, I argue that the fundamental principles of international humanitarian law should not be disregarded when assessing the legality of unconsented humanitarian aid. The principle of humanity explicitly states that everyone should be treated with respect, and harm should be minimised. In terms of treaty law, humanitarian assistance in NIACs is regulated by Common Article 3 to the Geneva Conventions, specifically Common Article 3 (2), which stipulates that the International Committee of the Red Cross and other neutral humanitarian organisations may assist conflicting parties. Moreover, the requirement of consent is mentioned in Article 18 of the Additional Protocol II, (APII) which regulates non-international armed conflicts, stipulating that “the consent of the High Contracting Party concerned” is required. Whilst States are not obliged to provide their permission in all cases, the consent cannot be refused based on arbitrary grounds (Barber, p.89). There is a debate among scholars, about who represents a party concerned in the case when a NSAG controls a part of a territory. Scholars argue that the consent of the territorial State is necessary (see e.g., here), while some consider a NSAG as a party concerned (Barber, p. 89). After this brief discussion of the legal framework, the next section will analyse arguments asserting that the delivery of humanitarian assistance to the territory under the control of NSAGs may be lawful even without the State’s consent.
The ICJ Judgment in Nicaragua Case
When assessing un/lawfulness of the matter presented, it is helpful first to analyse the ICJ judgment in the famous Case Concerning Military and Paramilitary Activities in and against Nicaragua. Considering that humanitarian relief is provided by impartial international organisations that do not intend to support an armed group, the argument based on the Nicaragua Judgment is highly valuable in this analysis.
As readers are well aware, in Nicaragua v. United States of America, the Court adjudicated that the provision of purely humanitarian help to individuals or forces in another country, regardless of their political connections or intentions, cannot be considered illegal intervention or a violation of international law (para. 242). Therefore, delivering cross-border relief is not unlawful since it does not constitute “interference in the domain réservé of another State” nor do “impartial organisations “use a coercing measure to do so” (see here, and Nicaragua Judgment para. 241).
Furthermore, the Court reiterated the following:
“The Red Cross [and other international organisations] …. endeavours – in its international and national capacity – to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being” (para. 242).
I find this reasoning the most convincing as it directly rebuts the counterargument of several scholars who consider the provision of unconsented humanitarian assistance a violation of the principle of territoriality and sovereignty (see hereor here). Nevertheless, I am of the opinion that States should consider the judgment in the Nicaragua case and refrain from politicising the civilian population in their conflict against NSAGs.
The State is not a party to the Additional Protocol II: no consent requirement?
Secondly, as already discussed, the requirement for the consent of a party to the conflict is mentioned explicitly only in Additional Protocol II, not in Common Article 3. Therefore, some authors argue that if the territorial State is not a party to APII, there is no need for the territorial State to provide consent, as Common Article 3 does not impose such an obligation. Moreover, building on the ICRC position, Sproson and Olabi point out the fact that APII does not codify customary international law. However, the counterargument provided by Pejic appears to be more prevalent, although it remains subject to rebuttal.
Regarding the relationship between Common Article 3 and APII, Pejic emphasises the supplementary nature of APII in relation to Common Article 3. Furthermore, by referring to the lower threshold of Common Article 3, she asserts that the State’s agreement is relevant despite the silence on this matter in CA3. Pejic argues that if the consent is necessary at a higher threshold (APII), it should automatically be considered in cases where, as she puts it, “armed groups are weaker, and State possesses stronger control over territory.” Addressing the issue of consent referenced in APII but not in CA3, Gilliard presents a notably interesting compromise. In practice, this would mean that the territorial State’s agreement would be necessary; however, a State withholding its consent would have to demonstrate that humanitarian assistance was not intended to help the civilian population but rather beneficial to a NSAG (p.367). While this suggestion is pragmatic, I argue that due to the territorial States’ inclination to disregard NSAGs, implementing this compromise could lead to unfounded accusations and lack of transparency in the entire process.
I believe that the law should provide greater clarity on the point discussed. If one proceeds from this point, as suggested by Sproson and Olabi, the requirement for consent would be necessary from States that are party to the APII, but not from countries bound by the CA3. This could lead to vague obligations.
The concept of necessity
The argument extensively presented in Barber’s post, which I find particularly persuasive, relates to the principle of necessity. In my opinion, even if the legal community may not accept the arguments presented above, the issue of necessity provides a solid ground for persuasiveness. In this case, readers should bear in mind the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the Draft Articles on the Responsibility of International Organisations (ARIO), to which Barber refers. ARSIWA and ARIO define the concept of necessity as one of the “six circumstances that may preclude the wrongfulness of conduct that would otherwise breach an international obligation” (p.99). Applying this principle, the provision of humanitarian relief would not be deemed wrongful if it is necessary in nature. A potential counterargument that may arise is whether the delivery of humanitarian relief meets the ‘threshold’ of “an essential interest”, according to which the act would not represent a breach of obligation. As Barber points out, the International Law Committee is silent on the matter of what precisely constitutes “essential interest.” However, based on the principle of humanity, which lies at the heart of humanitarian law, a humanitarian catastrophe caused by the politicisation of humanitarian aid should, in my opinion, be characterised as a vital interest that undoubtedly meets a threshold of the necessity concept.
The role of the UN General Assembly
Lastly, it would be interesting to further examine the role of the UNGA with regard to cross-border humanitarian relief, an argument that Barber did not mention in her piece but was discussed elsewhere (see, e.g. here or here). Whilst the UN General Assembly is primarily characterised by its recommendatory powers (p.105), it can also provide a pathway in contested cases. Firstly, concerning the concept of necessity precluding wrongfulness, as noted by Barber, States may, through the General Assembly and its resolutions, establish that a particular situation meets the threshold of necessity.
Given that the General Assembly has the power to make such decisions and has done so throughout history, it would be unusual to think that scholars would argue the opposite. To support this argument, Barber provides an extensive list of quasi-judicial decisions, including (but not limited to) decisions on the use of force, the right to self-defence, or the concept of necessity with regard to sanctions (p.107-108).
To conclude this part, the binding decision of the UN Security Council was not included in this analysis, as it is often the members of the Security Council who, through their veto power, block humanitarian aid and assist the territorial State in politicising and weaponising (see, e.g. here). Therefore, as mentioned earlier, I fully subscribe to the idea that the international community should prioritise the protection of the civilian population and interpret the law in a broader sense. Barber’s allusion to the international community, which by its approach indirectly supports States that use their citizens as weapons, was apt. On this note, I understand that humanitarian law aims to balance the principle of military necessity. However, during natural disasters, States should also consider the civilian population even if it could or would foster NSAGs.
Concluding remarks
This blog post aimed to analyse arguments favouring the lawfulness of providing humanitarian aid to territories under the control of NSAGs without the territorial State’s consent. The main arguments focused on the judgment in Nicaragua v. US, the scenario of not ratifying Additional Protocol II, the concept of necessity, and the role of the UN General Assembly. While I agree with the reasoning in favour of the lawfulness of unconsented humanitarian relief and the idea of a broader interpretation of the law, I find two arguments particularly persuasive: the judgment in the Nicaragua case and the concept of necessity. In line with the aforementioned arguments, the legal community should reconsider whether the principle of sovereignty, despite being a cornerstone of international law, should prevail over the rights or lives of the civilian population and members of the NSAGs.