a project within the armed conflict workstream of the Human Rights for Future Generations Programme
The Oxford Institute for Ethics, Law and Armed Conflict (ELAC) and the Oxford Martin Programme on Human Rights for Future Generations have been engaged in a research project which seeks to examine and distil the law relating to the provision of humanitarian assistance in situations of armed conflict. The project is led by Dapo Akande.
Recent situations, for example in Syria, Sudan, the Ukraine and elsewhere, have highlighted the need for greater clarity as to the content and applicability of the international law rules governing humanitarian relief operations in situations of armed conflict. In these situations restrictions on humanitarian access both across borders and across the lines of territory held by parties to the armed conflict have left hundreds of thousands of people without adequate assistance. Particular difficulties have arisen with regard to the failure by states and parties to armed conflict to give consent to the conduct of relief operations despite the evident need of the civilian population. These difficulties have highlighted a variety of views and practices among States, international organizations, like the UN, and other humanitarian actors with regard to the legality of providing humanitarian assistance into conflict-affected territory in circumstances where consent is withheld by the state on whose territory the armed conflict occurs. The United Nation’s Secretary General has identified improving access for humanitarian operations as one of the five ‘core challenges’ to enhancing the protection of civilians in armed conflict. In November 2013, the Secretary General, in his tenth report to the United Nations Security Council on the Protection of Civilians stated that ‘[further] analysis is required on the issue of arbitrary withholding of consent to relief operations and the consequences thereof.’ He instructed the UN Office for the Coordination of Humanitarian Affairs (OCHA) to carry out this analysis. In 2013 OCHA entered into an agreement with ELAC & HRFG to provide funding for this research and analysis to be carried out in Oxford.
The Research Project
The law of armed conflict (international humanitarian law or IHL), as set out in the Geneva Conventions of 1949 and the Additional Protocols (1977) thereto, provide obligations for the parties in armed conflicts, to accept humanitarian relief in certain circumstances. However, very little legal analysis has been carried out into the circumstances in which these obligations come into play, what the scope of these obligations are, and who precisely has what obligations. In addition, the interaction between these obligations under international humanitarian law and obligations under other relevant areas of international law, such as international human rights law or international criminal law has not been the subject of sustained analysis. This project seeks to provide clarity to this area of the law by providing an overarching legal framework for analysing the law relating to the provision of humanitarian relief in armed conflict.
Questions to be addressed by the project include:
- What are the circumstances in which international humanitarian law provides for the carrying out of humanitarian relief operations?
- Whose consent is required for the conduct of relief operations? In particular, are there circumstances when relief operations can be carried out without the consent of the state on whose territory an armed conflict is occurring?
- What amounts to an arbitrary withholding of consent with respect to humanitarian operations?
- What are the consequences of an arbitrary withholding of consent for those making withholding consent and for those seeking to carry out relief operations?
- What is the scope of the obligation of parties to an armed conflict, and of third states, to allow and facilitate the passage of humanitarian relief goods?
- What are the rules relating to the protection of relief personnel?
ELAC/HRFG, in collaboration with OCHA, will develop a Guide to the Law Regulating Humanitarian Relief Operations in Armed Conflict. The guide will distil the rules of international law regulating humanitarian relief operations and present those rules together with a commentary on those rules. As the first attempt to provide a general framework with respect o to the law in this area, the Guide will be useful to academics working the area. It will also provide important guidance to a variety of other actors, including states and non-state parties to armed conflicts, international organizations seeking to carry out relief operations, as well relevant UN bodies with political and legal responsibility for taking action in armed conflicts (like the UN Security Council and General Assembly).
In addition to academic publications on the topic, ELAC/HRFG will also produce two policy papers for OCHA. These papers will examine (i) The Legal Framework for Cross-Border Relief Operations and (ii) Arbitrary Withholding of Consent to Human Relief Operations in Armed Conflict
The project is based on an examination of the relevant rules of the law of armed conflict but also of other areas of international law, including international human rights law, international criminal law, and the law relating to the responsibility of states and international organizations
In addition to the research by Oxford based scholars, the project consists of a series of consultations convened by ELAC/HRFG/OCHA. Those consultations are taking place through a series of meetings, mainly held in Oxford, of legal experts drawn from academia, United Nations agencies and non-governmental organizations which provide humanitarian relief, the International Committee of the Red Cross, the international judiciary, as well as those with experience in government.
The engagement with this diverse group of experts has not only brought valuable insight into the project but has influenced some of the work of those bodies represented.