Arbitrary withholding of consent to humanitarian relief operations in armed conflict

Introduction

The UN Secretary-General has identified enhancing humanitarian access as one of the five core challenges to the protection of civilians in armed conflict.

In recent years considerable attention has been devoted to identifying and mapping a wide range of constraints and attempting to find ways of overcoming or at least mitigating them at field level.

Less attention has been devoted to the legal framework regulating humanitarian assistance – including, in particular, the essential starting point of relief operations: the requirement of consent thereto.

After briefly outlining the rules of international humanitarian law (IHL) regulating humanitarian assistance, the present paper focuses on the question of what constitutes arbitrary withholding of consent to relief operations and the legal consequences thereof. This focus on the issue of arbitrary withholding of consent to relief operations is particularly justified in the light of the increasing recognition by the international community that arbitrary denial of humanitarian access amounts to a violation of IHL. In its response to the conflict in Syria, the United Nations Security Council, in a presidential statement adopted in October 2013, condemned the denial by parties to the conflict of humanitarian access and recalled “that arbitrarily depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law”.
A few months later, in Resolution 2139 of 21 February 2014, the Council “recall[ed] that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law.” However, the question of what would constitute arbitrary reasons for withholding consent to relief operations has not been explored in any detailed manner either in the literature or indeed in practice. As the United Nations Secretary-General noted in his 2013 Report on the Protection of Civilians, “it is generally accepted that ... consent [to relief operations] must not be arbitrarily withheld. ... This area requires further analysis and development in order to ensure that the law has meaning for those who suffer beyond the reach of assistance”. This paper responds to that call for more detailed consideration of the issue.