Arbitrary Withholding of Consent to Humanitarian Relief in Non-international Armed Conflict

Legal Regulations and Consequences

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How to legally assess the situation when humanitarian actors in non-international armed conflicts are arbitrarily denied access to the affected civilian population? The book answers this question from the perspective of the five main actors involved in humanitarian relief in non-international armed conflicts: the affected State, non-State armed groups, humanitarian actors, non-belligerent States and the affected civilian population. It examines the legal regulations and consequences for each of these actors. In doing so, the book not only draws attention to existing legal gaps and challenges, but also encourages readers to rethink outdated legal concepts and discuss new approaches.

The open access publication of this book has been published with the support of the Swiss National Science Foundation.
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Vijitha Veerakatty, Dr.iur. (2021), University of Bern, is currently Deputy Head of the European Law and Schengen/Dublin Coordination Division at the Swiss Federal Office of Justice and Expert Consultant at Ximpulse Ltd. on international human rights protection, local governance, and peacebuilding.
List of Abbreviations

Introduction
1 Current Situation

2 Conditions for Providing Humanitarian Relief

3 Can Consent to Relief Operations Be Withheld?

4 Aims of This Book

5 Structure of the Book


Part 1
International Humanitarian Relief in Non-international Armed Conflicts
1Actors Involved in Relief Actions
1 Affected State

2 Non-state Armed Groups

3 Humanitarian Actors

4 Non-belligerent States

5 Civilians


2Legal Framework
1 Overview

2 Relevant Laws and Principles


3The Concept of Humanitarian Relief
1 Historical Perspective

2 Defining Humanitarian Relief

3 Implementation of International Humanitarian Relief

4 Dilemma: Principle of ‘Do No Harm’


4Situation of Non-international Armed Conflicts
1 Definition

2 Distinction from Internal Tensions and Disturbances

3 Distinction from International Armed Conflict


Part 2
Rights and Duties of the Actors Involved in Relief Actions
5Introduction

6Rights and Duties of the Affected State
1 State’s Sovereignty as a Core Principle

2 Rights and Duties


7Rights and Duties of Non-state Armed Groups
1 Bound to International Law

2 Rights and Duties


8Rights and Duties of Humanitarian Actors
1 Adherence to Humanitarian Principles

2 Rights and Duties


9Rights and Duties of Non-belligerent States
1 Cooperation with Humanitarian Actors

2 Rights and Duties


10Rights and Duties of Civilians
1 Right on Respect and Protection

2 A Right to Receive Humanitarian Relief?

3 Duty Not to Take Part in Hostilities and Impede Relief Actions


Part 3
Arbitrary Withholding of Consent to Relief Operations
11Characteristics of Withholding of Consent
1 Withholding and Withdrawing of Consent

2 Forms of Expression


12Prohibition of Arbitrary Withholding of Consent
1 Legal Basis

2 Assessing Arbitrariness


13Violation of Other International Obligations
1 Relevant Breaches of Law

2 Breaches of ihl Obligations

3 Breaches of ihrl Obligations

4 Breaches under International Criminal Law


Part 4
Legal Consequences of Arbitrary Withholding of Consent
14Introduction

15Accountability of the Affected State
1 State Responsibility

2 Responsibility for Violation of Human Rights Treaties

3 Individual Responsibility under Criminal Law


16Accountability of Non-state Armed Groups
1 No Direct Responsibility of the Armed Group

2 Determination of Breaches within Monitoring Mechanisms

3 Individual Responsibility of the Members of the Armed Group


17Remedies for Humanitarian Actors
1 Possibility of Providing Relief without Consent?

2 Bilateral Dialogues and Public Pronouncement


18Remedies for Non-belligerent States
1 Obligation and Entitlement to Act

2 Non-judicial Mechanisms

3 Judicial Mechanisms


19Remedies for Civilians
1 Human Rights Complaint Procedures

2 Claims Commissions

3 Rights as Victims before the icc


Part 5
Legal Gaps and Required Developments
20Introduction

21Currently Existing Gaps in the Law
1 Law Governing Humanitarian Relief

2 Legal Status of Non-state Armed Groups

3 Legal Remedies


22Developments Needed
1 Enhancing Knowledge of the Applicable Law

2 Further Legal Regulations

3 Independent International Body for Assessing Arbitrariness

4 Integration of Non-state Armed Groups

5 New Enforcement Mechanism


Conclusion
1 Summary

2 Closing Remarks


Reports, Resolutions and Statements

Table of Cases

Bibliography

Index

This book will be of interest to academics and students in the field of international humanitarian law. It is also a book for practitioners, including humanitarian actors, governments, and non-State actors.
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