International Responses to the Obstruction of Humanitarian Aid

[Eian Katz is Counsel and Program Manager at Public International Law and Policy Group. Opinions expressed here are his own.]

Recent allegations that Turkey has prevented humanitarian aid from reaching Nagorno-Karabakh mark the latest instance of a disturbing trend in global conflicts. In recent months, belligerent actors have engaged in similar acts of obstructionism in Syria, Venezuela, and Yemen to dire humanitarian effect. The abject politicization of aid delivery flouts the purported “right to humanitarian assistance” and necessitates a more forceful and coherent international response.

Sovereign Consent

Under international law, sovereign states typically have the prerogative to control the flow of goods across their borders. International organizations and third-party states offering assistance therefore may only act with the state’s consent. However, withholding such consent would be deemed arbitrary and therefore illegal if it: (1) violates “any relevant rules of international law,” (2) violates the principles of necessity or proportionality, or (3) is otherwise unreasonable, unjust, unpredictable, or inconsistent. To the first point, states denying access to humanitarian aid may be neglecting international obligations such as:

• The prohibition on using starvation as a method of warfare
• The duty to care for the sick and wounded to the fullest extent practicable and with the least possible delay
• The prohibition on collective punishment
• The prohibition on discrimination
• The duty to respect, protect, and fulfil the rights to life, food and shelter, and health

Responding to an Unlawful Denial of Consent

When a state has arbitrarily withheld consent to humanitarian assistance, the international community has the right and obligation to intervene. Signatories to the Geneva Conventions have committed to “ensur[ing] respect” for IHL rules “in all circumstances,” which commentators have understood to mean “do[ing] everything in their power” to seeing them applied universally. The Committee on Economic, Social, and Cultural Rights likewise obligates states with the means to do so to provide international assistance in the fulfillment of the rights to food, water, and health in foreign states. In addition, the UN Charter features provisions encouraging member states to act in promotion of international human rights, stability, and well-being.

The international community may respond to an unlawful denial of humanitarian aid in several different ways. First, the UN Security Council (UNSC) may take action under its Chapter VII powers to supply relief itself, impose sanctions against the offending actors, or intervene militarily. Second, private aid organizations, foreign states, and international organizations likely may continue to provide assistance regardless of the sovereign’s disapproval with appropriate legal justification. Third, criminal charges may be filed against the individual(s) responsible for disrupting aid if doing so rises to the level of a war crime or a crime against humanity. Finally, another state may sue the offending state under the compromissory clause of a relevant international treaty.

Humanitarian Aid Facilitated by Security Council Action

Invoking its Chapter VII authority, the UNSC has on several occasions demanded that states involved in armed conflicts facilitate or enable humanitarian access to civilian populations. It has also taken more aggressive action against individuals or groups obstructing humanitarian aid, such as by threatening or actually imposing sanctions. As a last resort, the UNSC has applied military force to ensure the delivery of aid in a few instances, including in Bosnia and Herzegovina and Somalia. In other cases, UNSC resolutions have served to authorize action by third-party states or international organizations in order to open channels for humanitarian aid, such as the “safe zones” installed in Iraq and Rwanda by the US and France, respectively, during the 1990s or the four cross-border aid delivery sites established by the UN in Syria in 2014.

Humanitarian Aid without State Consent

 In practice, cross-border aid has been delivered on numerous occasions without either state consent or UNSC intervention, such as in Ethiopia (early 1980s), Iraq (early 1990s), and Nigeria (late 1960s). Private nonprofit organizations, whose behavior is not regulated by public international law, may engage in such operations with little international legal consequence, though domestic laws may apply. Under certain conditions, states and international organizations may also be able to justify their continued humanitarian operations in the face of state resistance under two different legal theories.

First, relief actions may be devised as countermeasures intended to remedy the ill effects of an internationally wrongful act. In order to qualify as such, the implementing actor must (1) have been injured by the wrongful act and (2) be acting with the purpose of inducing the offending state to amend its error. Because many IHL rules are understood to be erga omnes, it may be possible for states or international organizations to undertake responsive countermeasures without having suffered personal harm.

Second, wrongful international acts, such as intruding on sovereignty by providing aid without state consent, may nonetheless be justified if they (1) are the only way to “safeguard an essential interest against a grave and imminent peril” and (2) do not “seriously impair an essential interest” of the aggrieved state or the international community. This concept, known as the principle of necessity, might allow states or international organizations to supply humanitarian assistance without state consent.

Individual Criminal Liability for Obstructing Humanitarian Aid

Interfering with humanitarian aid may qualify as either a war crime or a crime against humanity, charges that might be pursued before the International Criminal Court (ICC) or another international tribunal or in national courts under universal jurisdiction.

War Crimes

In international armed conflicts (IACs), the set of war crimes with potential relevance to the denial of humanitarian aid includes willful killing, torture or inhuman treatment, and willfully causing great suffering, or serious injury to body or health. In non-international armed conflicts (NIACs), these offenses are captured by the catchall crime of “violence to life and person.” At the International Criminal Tribunal for Yugoslavia (ICTY), charges relating to the deprivation of food, water, and healthcare to inmates at detention centers have been brought as cases of willfully causing great suffering, cruel treatment, and inhumane acts.

Starvation is a war crime under the Rome Statute in IACs and, following a 2019 amendment, NIACs (though the amendment is only applicable to state parties who subsequently ratify it). Starvation also constitutes a war crime during both IACs and NIACs under customary international law, so it might be prosecuted in other forums if not justiciable at the ICC. The ICC definition of starvation explicitly includes as an example “willfully impeding relief supplies,” for which military necessity is not a defense. The intention to cause starvation may be inferred if it is a foreseeable consequence of the relevant acts or omissions.

Crimes Against Humanity

Crimes against humanity refer to the knowing perpetration of any of a set of specific acts “as part of a widespread or systematic attack directed against any civilian population.” While not obvious, there are reasons to believe that blocking humanitarian aid would fit this description. As a preliminary matter, an “attack” need not be strictly military; it may include non-violent acts if committed against a civilian population according to a state or organizational policy. The civilian population is considered the target of the attack if it is its “primary object,” considering factors such as the means and method of attack, the combatant status and number of victims, and the precautionary measures taken by the aggressor. And while the entire civilian population need not be affected, the category of crimes against humanity is “intended to imply crimes of a collective nature,” as opposed to those targeting “a limited group of randomly selected persons.” An attack is therefore judged “widespread” if directed at more than one victim and “systematic” if pursuant to a preconceived policy. Attacks directed against entire villages or cities, even if they house some combatants, have been found to meet these criteria.

Acts relevant to the obstruction of humanitarian aid that may qualify as crimes against humanity if the above prerequisites are met include: (1) murder and extermination, the latter of which explicitly includes “the deprivation of access to food and medicine;” (2) torture, if the affected population is “under the control” of the offending party; (3) persecution, which, per the ICTY, may also include the deprivation of food and shelter; (4) deportation, meaning “forced displacement… by… coercive acts;” and (5) other inhumane acts, which the ICTY has applied to restricting access to food or healthcare.

Dispute Settlement before the International Court of Justice

Certain international treaties, including the Convention against Torture (CAT), the Genocide Convention, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), feature clauses stipulating that disputes between state parties may be referred to the International Court of Justice (ICJ). States have frequently made use of these provisions in order to bring questions arising under these treaties to the Court for review. Moreover, the ICJ has held that state obligations pursuant to CAT, the Genocide Convention, and ICERD are erga omnes.

Relying on these precedent cases, any state party might seek ICJ adjudication of another state party’s aid obstruction that amounts to a treaty violation. While it may be possible to state a claim of this nature under the Genocide Convention or ICERD, CAT likely represents the clearest path toward remedying an unjust refusal to grant consent to cross-border humanitarian operations. Blocking aid may fall within the Convention’s definition of torture: the intentional infliction of severe pain or suffering by a public official “for such purposes as… punish[ment]… coerci[on]… or for any reason based on discrimination of any kind.”

Conclusion

In theorizing a “right to humanitarian assistance,” Professor Yoram Dinstein found it to be most compelling in situations in which one belligerent party is deliberately restricting an available supply of goods. In order to protect this right from such cynical behavior and to fulfill its own transnational legal obligations, the international community should more assertively pursue strategies including UNSC action, unilateral third-party action, criminal investigations, and ICJ dispute resolution.