Chapter 2 covers the second category of international humanitarian relief actors that can initiate their relief actions, namely third states and the international/regional organisations of which they are members. Those (inter-)governmental humanitarian relief actors can offer their humanitarian relief to the government party to the conflict and through analogous reasoning to non-state armed groups. The legal basis for such initiation of international humanitarian relief can be found in the general duty of third states to cooperate in humanitarian affairs under the UN Charter. In the specific realm of international humanitarian relief, Article 18(2) of Additional Protocol ii to the Geneva Conventions has imposed upon third states to undertake their relief actions once an agreement has been reached with the government party to the conflict. Other grounds for (inter-)governmental humanitarian relief actors to fulfil their duty to cooperate are found in the doctrine on the Responsibility to Protect and the practice of humanitarian intervention. Such a duty can be pursued through consensual and non-consensual models of cooperation. Central to this distinction is the prior consent of the government party to the conflict. In the absence thereof, a Security Council resolution is a prerequisite to authorising the delivery of humanitarian relief on behalf of those third states (in)directly. Finally, in addition to the discussion on the legal grounds and these limitations, this chapter examines the types of beneficiaries and aid as well as the original addressees of an offer initiated according to the duty of states to cooperate in the delivery of international humanitarian relief, i.e. the government party to the conflict.
The introduction covers the practical and legal challenges for frontline humanitarian negotiators of international humanitarian relief actors to gain humanitarian access to the victims of armed conflict, namely those persons under the territorial and/or physical control of the fighting parties in a non-international armed conflict. There is a disjuncture between normative approaches to hold the parties to the conflict accountable for arbitrary denial of offers of humanitarian relief – at the strategic level – and/or rapid and unimpeded passage and freedom of movement of international humanitarian relief actors – at the operational level. This study proposes a new framework of humanitarian engagement that complements traditional rule-based governance approaches to the law of international humanitarian relief. From the practice of frontline humanitarian negotiators, it considers the restoration of trust amongst the fighting parties and between the latter and international humanitarian relief actors central to the conclusion of agreements on humanitarian access between both sides and for the respect for their respective rights and duties defined therein. Such relational governance moves fighting parties away from their moral disengagement – a principal cause of non-compliance with the law of war – towards their moral realignment. Furthermore, following the Theory on the Relational Normativity of International Law (tornil), this study reconceptualizes the sources from which the normativity of the interdependent rights and duties of the fighting parties and international humanitarian relief actors derive their binding force. As a result, it effectively reconciles rule-based – normative approaches – and relational governance – practitioners’ perspectives – in order to strengthen the normativity of the law of international humanitarian relief in the interests of the beneficiaries of international humanitarian relief.
Chapter 4 examines the second aspect regarding the exercise of the right to strategic consent of the fighting parties at the authorisation phase of international humanitarian relief actions, namely its limitations. Unsurprisingly, controversies regarding the ownership of the right to strategic consent continue to inform the debates on the crystallisation of the customary prohibition of arbitrary denial under ihl and its potential criminalisation under the Rome Statute if such conduct amounts to the starvation of the civilian population. Caution is warranted regarding such progressive readings; not only in terms of their interpretation of the sources of ihl but also in respect of their adverse consequences on the battlefield. It may further compromise compliance with existing (customary) obligations of the fighting parties under ihl, including the prohibition of the use of starvation against the civilian population as a method of warfare. Chapter 4 discusses another limitation to the right to strategic consent based on the earlier authorisation of cross-border relief actions in the Syrian conflict by Security Council Resolution 2165 in 2014. In order to preserve its own neutrality and legitimacy in the eyes of the fighting parties, the Council’s suspension of the right to strategic consent did not only account for the government party to the conflict. The very interdependent exercise of the right to strategic consent discussed in the previous chapter implies that also the right of strategic consent of the non-state armed groups controlling border-posts is also suspended. The repeated renewal of Resolution 2165 can be seen as an application of the presumption of consent which has a number of unwarranted consequences too.
Chapter 5 deals with the final phase of international humanitarian relief, namely at the stage of its delivery, and from the perspective of the obligations and rights of the fighting parties under the agreements on humanitarian access and other sources. Regarding the obligations of the fighting parties, a distinction is made between security and cooperation obligations. Regarding the former the fighting parties must ensure the protection of international humanitarian relief actors pursuant to the agreements on humanitarian access based on special protection (depending on the status of the relief actors) or additional protection, on the one hand; or in the absence of such prior agreement, on the basis of civilian immunity, on the other hand. Regarding the cooperation obligations to the delivery of humanitarian relief, the fighting parties must grant rapid and unimpeded passage and freedom of movement of the relief actors under the agreements on humanitarian access and/or per Security Council resolutions. The fighting parties, however, continue to reserve their right of control over the delivery of international humanitarian relief. They can on various grounds deny access under ihl primarily when security demands require so or outside ihl when the international humanitarian relief actor is violating the principle of neutrality. Under no circumstances can the fighting parties renounce their obligations to respect the prohibition of starvation vis-à-vis the civilian population and ensure humane treatment of those under their territorial and/or physical control. In case of violation of those security and cooperation obligations, the parties to the agreement on humanitarian access as well as third parties can take different measures to ensure compliance and accountability with those agreements in particular and with the law of international humanitarian relief in general. From the perspective of relational governance, the restoration of trust must be prioritised to make the law of international humanitarian relief function again in the interest of the beneficiaries of international humanitarian relief.
Chapter 6 examines the obligations and rights of international humanitarian relief actors in the course of the delivery of humanitarian supplies to the parties to the conflict. It covers the principles of humanitarian action that guide impartial humanitarian bodies, in particular, less so for other (inter-)governmental relief actors. It concerns the respect for the principles of impartiality and humanity – the so-called substantive principles – and the principles of neutrality and independence – the so-called operational principles – that ensure continued access to the victims of armed conflict. International humanitarian relief actors must equally refrain from directly participating in armed hostilities and notify the destination and routes of their delivery. When those obligations are respected, international humanitarian relief actors are entitled to unimpeded passage and freedom of movement. Violations of those obligations, however, involve several consequences which can immediately put the security of humanitarian relief workers at risk, deny continued humanitarian access or even lead to their arrest, detention, prosecution and expulsion – thus, worsening the humanitarian plight of the beneficiaries of international humanitarian relief.
Chapter 1 examines the first category of international humanitarian relief actors that can initiate international humanitarian relief actions during non-international armed conflict, namely impartial humanitarian bodies. It explores the different legal grounds pursuant to which those bodies, including the icrc, can initiate their humanitarian negotiations with the fighting parties. According to Common Article 3(2) of the Geneva Conventions, such body can offer its humanitarian services to parties to the conflict. Gradually, under international human rights law too, such bodies can respond to calls of the victims of armed conflict whose right to humanitarian assistance has not been answered by the fighting parties. There are, however, several limitations to the exercise of such right of initiative of impartial humanitarian bodies. Internally, those bodies are bound by the statutory provisions that impose respect for the principle of neutrality as they engage with the fighting parties concerned. Externally, the principle of sovereignty, as well as sanctions regimes put in place by the Security Council, have compromised to prospects to bring impartial and humanitarian relief to the victims of armed conflict. Chapter 1 further distinguishes between the various beneficiaries of such external relief, i.e. civilians and persons hors de combat, and the different types of relief required to redress the particular humanitarian needs of the respective persons. Finally, it identifies the addressees of such offers of international humanitarian relief, namely the government party to the conflict and the non-state armed groups.