Cross-border relief operations - A legal perspective (OCHA Policy Series)

On a number of occasions in recent years, humanitarian actors have been confronted with serious challenges in mounting effective operations for civilians in opposition-held territories. Access has gone from being a key operational prerequisite to becoming the central and most contested, yet misunderstood, concept in humanitarian and political discussions and negotiations.

One particular challenge has been the reluctance of many parties to provide their consent for cross-border operations. Recent efforts to assist people affected by conflict in Syria and in the Sudanese states of South Kordofan and Blue Nile highlight this concern.

The 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 his report to the Security Council of November 2013, the Secretary-General recommended that “parties to conflict should ensure that the most efficient means are available for reaching people in need with humanitarian assistance and protection, including in situations where this involves humanitarian operations that cross lines of conflict or international borders.” He also called upon OCHA to engage with a range of actors, examine the relevant rules, and consider options for providing further guidance on consent to relief operations.

The present paper, commissioned jointly by OCHA, the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations is therefore intended both as an initial step to provide some clarity on the basis of international humanitarian law and international human rights law and as a resource for humanitarian practitioners and policy makers active in this area. The paper provides a review of the existing legal framework relevant to cross-border relief operations into opposition-held areas, pointing both to certain conclusions and to areas where further clarification and guidance may be desirable. The paper addresses a series of legal questions raised by practitioners and advocates of cross-border relief operations, including:

 What are the basic rules of international humanitarian law on relief operations?

 Whose consent is required for cross-border relief operations?

 How can consent be given, and how can it be withdrawn?

 What amounts to arbitrary withholding of consent?

 In what circumstances, if any, might unauthorised cross-border operations be lawful?