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The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access

Published on December 16, 2016        Author: 
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The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.

It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.

Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.

It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot. Read the rest of this entry…

 
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Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent

Published on December 16, 2016        Author: 
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In the Oxford Guidance, the authors make a careful exposition of the legal framework relating to humanitarian relief operations in situations of armed conflict. Responding to the unseemly practice of some states impeding humanitarian relief operations, they make the compelling, practice-based argument that states have an obligation under international law not to arbitrarily withhold consent to such operations (pp. 21-25). That states have such an obligation does however not necessarily mean that humanitarian relief actors have a right to conduct relief operations absent such consent. The primary rules of international humanitarian law, in any event, while providing for the former obligation, do not provide for the latter right. Secondary rules of international law on state responsibility may come to the rescue here. As the authors of the Oxford Guidance correctly point out, the doctrines of necessity and countermeasures under the general law of state responsibility may also apply as circumstances precluding the wrongfulness of “third” states’ relief operations on the territory of the non-consenting state (pp. 51-55). In this post, I will critically reconstruct the authors’ application of the law on countermeasures. I will limit myself to countermeasures taken by third states. I have addressed the taking of humanitarian relief-based countermeasures taken by non-state humanitarian actors (NGOs) in an earlier publication. 

The main obstacle to a third state conducting relief operations as a countermeasure is that this state is not itself ‘injured’ by the territorial state’s withholding of consent. Indeed, the better position is that the non-relieved civilians are the injured parties, and that the state wishing to conduct the relief operation is a non-injured state. This begs the question whether in that capacity it is entitled to take countermeasures in the face of the territorial state’s arbitrarily withholding consent to the relief operation. The authors of the  Oxford Guidance take the ‘progressive’ position that they can. Read the rest of this entry…

 
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Joint Discussion on The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Just Security Posts

Published on December 16, 2016        Author: 
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The second and third posts in our joint blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict are now available on Just Security. The blog posts are as follows:

Read the full posts over on Just Security.

 
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The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction

Published on December 14, 2016        Author: 
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Editor’s Note: This post is cross posted at Just Security.

As many current conflicts across the globe demonstrate, humanitarian access is a central challenge to the protection of civilians in armed conflict. Parties to conflict often impede the delivery of much needed humanitarian relief supplies exacerbating hunger, disease and want. However, insufficient attention appears to have been paid to the legal framework that applies to the provision of humanitarian relief in armed conflict. In his 2013 Report on the Protection of Civilians in armed conflict the Secretary-General instructed (at para. 80) United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to analyse one aspect of the law regulating humanitarian relief operations: the issue of arbitrary withholding of consent and the consequences thereof. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations to conduct expert consultations to examine the rules and the options for providing guidance. We were honoured to lead this process of consultation resulting in the elaboration and drafting of the Guidance.

At the first meeting the experts unanimously agreed that it would not be possible nor, indeed, helpful to focus exclusively on the question of arbitrary withholding of consent. That element of the rules regulating humanitarian relief operations had to be put into its proper context. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict tries to do precisely that. It presents in sequential order the rules regulating key steps of humanitarian relief operations. It consists of a narrative commentary setting out the law and Conclusions presenting the key elements of the rules. The Guidance seeks to reflect existing law and to clarify areas of uncertainty. Where the law is unclear or the experts expressed different views on particular issues, the narrative text of the Guidance presents the range of interpretations. Each Conclusion does not necessarily reflect the unanimous view of the experts consulted. In addition to setting out the law, the document also aims to provide some practical guidance as to how some of the legal obligations identified may be implemented by the relevant duty holders.

This post highlights four central questions addressed in the Guidance: (i) whose consent is required for the conduct of humanitarian relief operations in non-international armed conflicts? (ii) what amounts to arbitrary withholding of consent? (iii) what are the key elements of the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief operations? and (iv) what the are consequences of unlawful impeding of humanitarian relief operations? Read the rest of this entry…

 

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: A Blog Discussion

Published on December 14, 2016        Author: 
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We are delighted to announce that, starting today and over the course of this week, EJIL:Talk! and Just Security are coordinating a blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The blog posts are as follows:

  • “The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction” –  Dapo Akande & Emanuela-Chiara Gillard – EJIL: Talk! and Just Security
  • “Humanitarian Access from an Armed Non-State Actor’s Perspective” – Annyssa Bellal – Just Security
  • “Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Some Comments on Arbitrarily Withholding Consent and the Status of the Guidance”  – Rogier Bartels –  Just Security
  • “Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent” – Cedric Ryngaert – EJIL: Talk!
  • “The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access” – Geoffrey Corn –  EJIL:Talk!

We thank all of the participants for their contributions, and we hope readers will enjoy the discussion.

 
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