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The law regulating cross-border relief operations

Published online by Cambridge University Press:  22 August 2014

Emanuela-Chiara Gillard
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Abstract

In view of the challenges frequently encountered in providing assistance to civilians in opposition-held territories, consideration is sometimes given to cross-border relief operations. Such operations raise numerous legal questions, including whose consent is required; what constitutes arbitrary withholding of consent; what the consequences of withholding of consent are, both for those wishing to provide assistance and for the parties withholding consent; and what alternatives exist for providing assistance in such circumstances.

Keywords

cross-border relief operationsconsent of the affected state and the oppositionarbitrary withholding of consentmedical supplies and relief operationsstarvation of the civilian populationunauthorised relief operationsstate sovereigntyterritorial integritynon-interferencedomestic lawassistance in the wrongful act of another statecircumstances precluding wrongfulnesscounter-measuresnecessityindirect provision of assistancebinding Security Council decisions
Type
Selected articles on IHL and humanitarian action
Information
International Review of the Red Cross , Volume 95 , Issue 890: Violence against health care Part II: The way forward , June 2013 , pp. 351 - 382
Copyright
Copyright © icrc 2014 

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References

1 On Syria see, for example, Humanitarian Exchange Magazine, No. 59: The Conflict in Syria, November 2013, published by the Humanitarian Practice Network at the Overseas Development Institute, available at: www.odihpn.org/humanitarian-exchange-magazine/issue-59. On Blue Nile and South Kordofan see, for example, Irina Mosel and Ashely Jackson, Talking to the Other Side: Humanitarian Negotiations in Southern Kordofan and Blue Nile, Sudan, HPG Working Paper, July 2013, available at: www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/8591.pdf. All internet references were checked in July 2014.

2 Remote management programming (or limited access programming) is described as ‘an adaptation to insecurity, the practice of withdrawing international [staff] (or other at-risk staff) while transferring increased programming responsibilities to local staff or local partner organisations'. See Egeland, Jan, Harmer, Adele and Stoddard, Abby, To Stay and Deliver: Good Practice for Humanitarians in Complex Security Environments, Office for the Coordination of Humanitarian Affairs (OCHA), Policy Development Studies Branch, 2011Google Scholar, Glossary, xv, available at: https://docs.unocha.org/sites/dms/Documents/Stay_and_Deliver.pdf.

3 Ibid., p. 14.

4 On this see, for example, Krähenbühl, Pierre, “There Are No ‘Good’ or ‘Bad’ Civilians in Syria – We Must Help all who Need Aid”, in The Guardian, 3 March 2013Google Scholar, available at: www.theguardian.com/commentisfree/2013/mar/03/red-cross-aid-inside-syria.

5 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (entered into force 21 October 1950).

6 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (entered into force 7 December 1978).

7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (entered into force 7 December 1978).

8 Art. 70(1) of AP I provides that:

relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts.

The treaty rules applicable in non-international armed conflicts are essentially the same. Along similar lines, but in a more general manner, common Art. 3(2) of the GCs provides that:

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

Art. 18(2) of AP II provides that:

If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

According to the ICRC Customary Law Study, these treaty rules are essentially mirrored in customary law applicable in both types of conflict. See ICRC, Customary International Humanitarian Law, Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (hereinafter ICRC Customary Law Study), Rule 55.

9 For a discussion of whose consent is required and, in particular, whether it is just that of the affected states or also/only that of the opposition, see below.

10 AP I, Art. 70(3).

11 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949, (1987), (hereinafter ICRC Commentary to the APs), para. 2805.

12 Germany, CDDH/II/SR.87, pp. 336–337.

13 Ibid. Position supported by the US, the Netherlands, the USSR and the UK. No delegations opposed this understanding.

14 Bothe, Michael, Partsch, Karl Josef and Solf, Waldermar, New Rules for Victims of Armed Conflicts – Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague/Boston, 1982, p. 694Google Scholar.

15 Belgium and Germany, CDDH/SR.53, pp. 156–157.

16 See, for example, ICRC Customary Law Study, above note 8, Rule 55 and commentary thereto.

17 Guiding Principles on Internal Displacement, UN Doc. E/CN/4/1998/Add.2, 11 February 1998, Principle 25:

  1. 1.

    1. The primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities.

  2. 2.

    2. International humanitarian organisations and other appropriate actors have the right to offer their services in support of the internally displaced. Such an offer shall not be regarded as an unfriendly act or an interference in a State's internal affairs and shall be considered in good faith. Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance.

  3. 3.

    3. All authorities concerned shall grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced.

18 Institute of International Law, Bruges Session 2003, Resolution on Humanitarian Assistance, 2 September 2003, Art. VIII:

Duty of affected States not arbitrarily to reject bona fide offer of humanitarian assistance

1. Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims. In particular, they may not reject an offer nor refuse access if such refusal is likely to endanger the fundamental human rights of the victims or would amount to a violation of the ban on starvation of civilians as a method of warfare.

19 Council of Europe recommendation (2006)6 of the Committee of Ministers to Member States on Internally Displaced Persons, 5 April 2006, para. 4:

  1. 4.

    4. Protecting internally displaced persons and their rights as well as providing humanitarian assistance to them is a primary responsibility of the state concerned;

    Such responsibility entails requesting aid from other states or international organisations if the state concerned is not in a position to provide protection and assistance to its internally displaced persons;

    This responsibility also entails not to arbitrarily refuse offers from other states or international organisations to provide such aid.

20 ILC Report on the work of its 63rd session (26 April–3 June and 4 July–12 August 2011), Protection of Persons in the Event of Disaster, provisionally adopted draft Art. 11 – Consent of the affected State to external assistance, UN Doc. A/66/10, 2011, Chapter XI, paras. 264–289:

  1. 1.

    1. The provision of external assistance requires the consent of the affected State.

  2. 2.

    2. Consent to external assistance shall not be withheld arbitrarily.

  3. 3.

    3. When an offer of assistance is extended in accordance with the present draft articles, the affected State shall, whenever possible, make its decision regarding the offer known.

21 UNGA Res. A/RES/46/182, 19 December 1991, Guiding Principle 3:

The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.

22 AP I, Art. 59.

23 The reference to medical supplies intended for civilians is not to be interpreted a contrario as implying that medical supplies intended for wounded and sick combatants should not also be granted free passage. Jean Pictet (ed.), Commentary – IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1958, (hereinafter ICRC Commentary to GC IV), p. 180.

24 GC IV, Art. 23. Although not expressly stated, it is understood that this provision was intended to address blockades in international armed conflicts. See ibid., pp. 178 ff.

25 Art. 23 of GC IV, para. 2, provides that:

The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

  1. (a)

    (a) that the consignments may be diverted from their destination,

  2. (b)

    (b) that the control may not be effective, or

  3. (c)

    (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

26 GC IV, Art. 23, para. 2, point c.

27 ICRC Commentary to GC IV, above note 23, pp. 182 ff. According to the Commentary, ‘the Diplomatic Conference of 1949 had to bow to the harsh necessities of war; otherwise they would have had to abandon all idea of a general right of free passage. Some delegations had originally intended to accept the principle of free passage only in the form of an optional clause. It was only after the insertion of the safeguards set out under (a), (b), and (c) above, that it was possible to make the clause mandatory.’

28 This is in addition to Art. 1(3) of AP I, which indicates more generally that the Protocol is supplementary to the Geneva Conventions.

29 See, for example, AP I, Arts. 53 and 85(5).

30 These two conditions are spelled out in AP I, Art. 70. See, M. Bothe, K. J. Partsch and W. Solf, above note 14, p. 435; ICRC Commentary to the APs, above note 11, para. 4883; and Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, UN Doc. A/65/282, 1 August 2010, para. 81.

31 See Akande, Dapo and Gillard, Emanuela-Chiara, Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict, OCHA Occasional Policy Papers, No. 8, 2014Google Scholar.

32 M. Bothe, K. J. Partsch and W. Solf, above note 14, p. 434.

33 See ibid., p. 434; and Michael Bothe, ‘Relief Actions: The Position of the Recipient State’, in Frits Kalshoven (ed.), Assisting the Victims of Armed Conflict and Other Disasters – Papers Delivered at the International Conference on Humanitarian Assistance in Armed Conflict, The Hague, 22–24 June 1988, 1988, p. 95.

34 Walter Kälin, UN Resident Coordinator Induction Programme, New York, 23 February 2013, on file with the author. Art. 71(3) of AP I expressly foresees the possibility of temporarily restricting the freedom of movement of authorised humanitarian relief personnel in case of imperative military necessity, but this provision relates to access once consent to carry out relief operations has been granted.

35 See, for example, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, para. 82.

36 See, for example, ICRC Commentary to the APs, above note 11, paras. 2808 and 4885. The seriousness of withholding consent in such circumstances is evidenced by the fact that under the Statute of the International Criminal Court, it is a war crime in international armed conflicts to ‘intentionally us[e] starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’. See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002) (hereinafter ICC Statute), Art. 8(2)(b)(xxv). Although not specified in the adopted version of the Elements of Crime for this offence, delegations agreed that the crime would cover ‘the deprivation not only of food and drink, but also, for example, medicine or in certain circumstances blankets'. See Dörmann, Knut, Elements of Crime under the Rome Statute of the International Criminal Court: Sources and Commentary, ICRC/Cambridge University Press, 2003, p. 363CrossRefGoogle Scholar.

37 Most notably, AP I, Art. 10, and AP II, Art. 7. See also ICRC Customary Law Study, above note 8, Rule 110.

38 Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, para. 83.

39 Institute of International Law resolution, above note 18, Art. VIII(1).

40 See, for example, Kälin, Walter, Guiding Principles on Internal Displacement: Annotations, (revised edition), Studies in Transnational Legal Policy, No. 38, American Society of International Law, 2008, p. 117Google Scholar; Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, paras. 68–69; and Humanitarian Access in Situations of Armed Conflict: Handbook on the Normative Framework, Version 1.0, 2011, Chapter 4. In relation to assistance in natural disasters, see ILC, Fourth Report on the Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/643, 11 May 2011, paras. 58–60. See also D. Akande and E. C. Gillard, above note 31.

41 Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, para. 69.

42 W. Kälin, above note 34.

43 M. Bothe, above note 33, p. 95.

44 By analogy only, because in IHL the proportionality test is relevant to determining the lawfulness of a particular attack by balancing expected incidental civilian deaths, injuries or damage to civilian property against the concrete and direct military advantage expected from the attack. AP I, Art. 51(4)(b).

45 M. Bothe, above note 33, p. 95. Of course, there may be instances when the withholding of consent is not based on military considerations.

46 Para. 102(b) of the San Remo Manual on Armed Conflicts at Sea prohibits the establishment of a blockade if ‘the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade’. Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Grotius, Cambridge, 1995CrossRefGoogle Scholar.

47 Rule 157(b) of the HPCR Manual on Air and Missile Warfare prohibits the establishment or maintenance of an aerial blockade when the suffering of the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the aerial blockade. HPCR Manual on International Law Applicable to Air and Missile Warfare, Bern, 2009.

48 Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, para. 82. In relation to humanitarian assistance in natural disasters, the ILC also highlighted the importance of giving reasons when consent to assistance is withheld. It considered this ‘fundamental to establishing the good faith of an affected State's decision to withhold consent. The absence of reasons may act to support an inference that the withholding of consent is arbitrary.’ ILC Report, UN Doc. A/66/10, 2011, p. 270.

49 AP I, Art. 54(1), and AP II, Art. 14.

50 AP I, Art. 10, and AP II, Art. 7.

51 For a detailed discussion of this issue, see Stoeffels, Ruth Abril, La Asistencia Humanitaria en los Conflictos Armados: Configuracion juridica, principios rectores y mecanismos de garantia, Tirant Lo Blanch, Valencia, 2001Google Scholar, Chapter VI.3. See also Emanuela-Chiara Gillard, Cross-Border Relief Operations: A Legal Perspective, OCHA Occasional Policy Papers, No. 7, 2014.

52 ICRC Commentary to the APs, paras. 2806–2807. In international armed conflicts, third states through whose territory relief supplies and personnel must pass are covered by Article 70(2) of AP I, which, once consent has been granted, requires the parties to the conflict and third states to allow and facilitate the rapid and unimpeded passage of relief supplies, equipment and personnel. In non-international armed conflicts, neither Common Article 3 to the GCs nor Article 18 of AP II expressly addresses the issue, but a state's entitlement to regulate activities carried out in its territory is a fundamental element of state sovereignty and is of particularly relevance, as in situations where unauthorised cross-border relief operations are carried out from their territory, third states risk being accused by the state in whose territory the assistance is delivered of allowing their territory to be used for unlawful activities. See R. A. Stoffels, above note 51, p. 324.

53 GC IV, Art. 59.

54 See, for example, Sandoz, Yves, ‘Le Droit d'intiative du Comité international de la Croix Rouge’, German Yearbook of International Law, Vol. 22, 1979, pp. 352, 364–366Google Scholar; implicitly, Schindler, Dietrich, ‘Humanitarian Assistance, Humanitarian Interference and International Law’, in Ronald St. John Macdonald, Essays in Honour of Wang Tieya, Martinus Nijhoff, Dordrecht/Boston/London, 1993, pp. 689, 700Google Scholar; Torrelli, Maurice, ‘From Humanitarian Assistance to “Intervention on Humanitarian Grounds”?’, in International Review of the Red Cross, No. 288, May–June 1992, p. 234Google Scholar; and, extensively, Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, Macmillan, Oxford, 2003, pp. 448 ffGoogle Scholar. See also, most recently, Sassòli, Marco, ‘When are States and Armed Groups Obliged to Accept Humanitarian Assistance?’, Professionals in Humanitarian Assistance and Protection, 5 November 2013Google Scholar, available at: http://phap.org/articles/when-are-states-and-armed-groups-obliged-accept-humanitarian-assistance.

55 The ICRC Commentaries focus on this aspect of common Article 3(2) of the GCs. See, for example, Jean Pictet (ed.), Commentary – I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1958, p. 58. The Commentaries to the other three conventions are essentially identical. See also Spieker, Heike, ‘The Right to Give and Receive Humanitarian Assistance’, in Heintze, Hans-Joachim and Zwitter, Andrej (eds), International Law and Humanitarian Assistance, Springer-Verlag, Berlin/Heidelberg, 2011, p. 15Google Scholar.

56 M. Bothe, K. J. Partsch and W. Solf, above note 14, p. 696; and R. A. Stoffels, above note 51, pp. 301–308.

57 See, for example, Dörmann, Knut and Gasser, Hans-Peter, ‘Protection of the Civilian Population’, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, p. 236Google Scholar; Kalshoven, Frits and Zegveld, Liesbet, Constraints on the Waging of War – An Introduction to Humanitarian Law, 3rd ed., Cambridge University Press, Cambridge, 2001, p. 139Google Scholar; Plattner, Denise, ‘Assistance to the Civilian Population: The Development and Present State of International Humanitarian Law’, International Review of the Red Cross, No. 288, June 1992CrossRefGoogle Scholar; H. Spieker, above note 55, p. 16; implicitly, Abi-Saab, Georges, ‘Non-International Armed Conflicts’, in International Dimensions of Humanitarian Law, Henry Dunant Institute, 1988, p. 224Google Scholar; and Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, above note 30, para 85. See also ILC, above note 40, para. 65.

The explanatory memoranda prepared by the governments of the Netherlands and Switzerland for transmission of the Additional Protocols to their respective parliaments for ratification expressly note that Article 18(2) of AP II requires the consent of the state in whose territory the conflict is taking place. The Swiss document even specifies that state consent is required even if relief is provided directly from a third country into opposition-held territory: Tweede Kamer, vergaderjaar 1983–1984, 18 277 (R1247), No. 3, p. 52; and Message concernant les Protocoles additionels aux Conventions de Genève du 18 Février 1981, 81.004, Feuille fédérale, 133 année, Vol. 1, p. 973.

58 This view was put forward as a possible alternative to a literal interpretation of Article 18(2) of AP II in recognition of the fact that, as a matter of practice, the consent of the opposition is required if operations are to be carried out in areas under its control. M. Bothe, J. K. Partsch and W. Solf, above note 14, p. 696. The view has been expressed with increasing conviction, although it has also been admitted that it does not correspond with state practice. See, for example, M. Bothe, above note 33, p. 94; and Bothe, Michael, ‘Relief Actions’, in Encyclopedia of Public International Law, Vol. 4, North-Holland, Amsterdam, 2000, pp. 168, 171Google Scholar; as well as exchanges with author. Bugnion reaches the same conclusion but for different reasons: first, if Article 18(2) of AP II were interpreted as only referring to the consent of the state party, this would be the only occasion in AP II where the state and opposition are granted different rights and obligations. Second, it would not make sense for Article 18(2) of API II to contradict the position adopted in Common Article 3(2) of the GCs, which, in Bugnion's view, does not require the consent of the affected state. Third, in view of the frequent difficulties of determining who is the legitimate government in situations of non-international armed conflict, Bugnion does not think the drafters intended to force humanitarian actors to weigh up rival claims. In view of this, while acknowledging that such an interpretation appears contrary to the actual letter of Article 18(2) of AP II, he concludes that each party has the right to grant or withhold consent to relief operations within the territory it effectively controls. He adds that, in view of the risk of protest from the affected state, the International Committee of the Red Cross would resort to such a practice only if the situation of the victims made this imperative. F. Bugnion, above note 54, pp. 451–455.

59 M. Bothe, above note 33, p. 94.

60 For example, during the Nigerian civil war in the late 1960s, a number of humanitarian agencies operated a cross-border air bridge into Biafra from Sao Tome without the consent of the government, whose air force shot down several planes participating in the operations: H. Slim and E. C. Gillard, above note 1, p. 6. Similarly, in 1987 Sri Lanka strongly objected to the airdrop by India of relief supplies for the Tamil population into the besieged city of Jaffna: M. Bothe, above note 33, p. 94. Operation Poomalai was an airdrop of supplies by the Indian air force over Jaffna on 4 June 1987, when the city was under siege by Sri Lankan troops as part of the offensive against the Tamil Tigers. A first attempt by India to deliver assistance by sea was intercepted by Sri Lankan forces; two days later, India carried out the airdrop. In the wake of Operation Poomalai, Sri Lanka accused India of violating its sovereignty and territorial integrity. Pakistan, Bangladesh, Nepal and the Maldives also protested the action. India defended its actions as a ‘mercy mission’. Outside the region, the reaction was muted – the United States expressed regret but refused to comment further on the incident. The United Nations Secretary-General issued a statement appealing to both states to act with restraint. Bandarage, Asoka, The Separatist Conflict in Sri Lanka: Terrorism, Ethnicity and Political Economy, Routledge, London/New York, 2009Google Scholar; and Weisman, Steven R., ‘India Airlifts and Tamil Rebels’, in New York Times, 5 June 1987Google Scholar, available at: www.nytimes.com/1987/06/05/world/india-airlifts-aid-to-tamil-rebels.html.

61 See, for example, Michael Meyer, who suggests that ‘the established government should not object to humanitarian relief actions fulfilling the required conditions of impartiality and non-discrimination being undertaken in territory not under its control’. Meyer, Michael, ‘Development of the Law concerning Relief Operations’, in Meyer, Michael (ed.), Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, BIICL, 1989, p. 221Google Scholar. See also Sandesh Sivakumaran, ‘The Provision of Humanitarian Assistance in Non-International Armed Conflicts’, in Philip Ambach et al. (eds), The Protection of Non-Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-Conflict Society, forthcoming, 2015.

62 Consultations with legal experts carried out by author; and S. Sivakumaran, above note 61.

63 Consultations with legal experts carried out by author. On the emerging practice of imputing non-state actors with human rights obligations, see, for example, Ronen, Yael, ‘Human Rights Obligations of Territorial Non-State Actors’, in Cornell International Law Journal, No. 46, 2013, p. 21Google Scholar.

64 See Akande, Dapo, ‘Self Determination and the Syrian Conflict – Recognition of the Syrian Opposition as the Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?’, in EJILTalk!, 6 December 2012Google Scholar, available at: www.ejiltalk.org/self-determination-and-the-syrian-conflict-recognition-of-syrian-opposition-as-sole-legitimate-representative-of-the-syrian-people-what-does-this-mean-and-what-implications-does-it-have/; Talmon, Stefan, ‘Recognition of the Libyan National Transitional Council’, in American Society of International Law Insights, Vol. 15, No. 16, 16 June 2011Google Scholar; and Talmon, Stefan, ‘Recognition of Opposition Groups as the Legitimate Representative of a People’, in Chinese Journal of International Law, Vol. 12, No. 2, 2013, pp. 219–253CrossRefGoogle Scholar. See also, more generally, Jennings, Robert and Watts, Arthur (eds), Oppenheim's International Law, Vol. 1: Peace, 9th ed., Longman, London/New York, 1992Google Scholar, paras. 42–54.

65 Ibid., para. 45.

66 Ibid., para. 53.

67 M. Bothe, K. J. Partsch and W. Solf, above note 14, p. 697.

68 Ibid.

69 R. A. Stoeffels, above note 51, pp. 314–316.

70 Ibid., p. 314. In response to India's unauthorised airdrop, Sri Lanka complained of violations of its sovereignty and territorial integrity. See the discussion of India's Operation Poomalai in note 60 above.

71 International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, para. 242.

72 Ibid., paras. 242, 243.

73 Although the ICJ does not specify this either, from the context of the decision it can be assumed that it was addressing situations in which the assistance was provided without the consent of the affected state.

74 See R. A. Stoffels, above note 51, p. 309, and references therein. See also Schindler, who suggests that the ICJ's statement should not be understood as conferring a right on states or humanitarian organisations to cross the borders of another state to provide assistance to people in need. In his view, the Court was only considering the ‘right to make humanitarian supplies available to parties to an armed conflict, even to rebels in a civil war, but [did] not imply a right to penetrate into the territory of another State’ to deliver the supplies. D. Schindler, above note 54, pp. 698–699.

75 Art. 16 of AP I and Art. 10 of AP II provide that under no circumstances may people be punished for having provided medical assistance. According to the ICRC, the same rule exists under customary law in both international and non-international armed conflicts. See ICRC Customary Law Study, above note 8, Rule 26.

76 See also the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, New York, 21 November 1947 (entered into force 2 December 1948), UNTS Vol. 33, p. 261.

77 M. Bothe, above note 33, p. 96.

78 Ibid., p. 95.

79 Ibid., pp. 95–96.

80 ICRC Commentary to the APs, above note 11, para. 46.

81 Chapter V of the ILC Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, 2001 (hereinafter ILC Articles on State Responsibility), identify six circumstances precluding wrongfulness: consent, self-defence, counter-measures, force majeure, distress and necessity.

82 ILC Arts 22 and 49–54 on State Responsibility and Commentaries thereto. ILC Arts 22 and 51–57 on the Responsibility of International Organisations set out largely identical rules. See ILC Report, UN Doc. A/66/10, 2011. On the possibility of invoking counter-measures to justify unauthorised relief operations, see Courten, Oliver and Klein, Pierre, ‘L'Assistance Humanitaire Face à la Souveraineté des Etats’, in Revue Trimestrielle des Droits de l'Homme, 1992, pp. 343–364Google Scholar; and D. Schindler, above note 54, pp. 698–699.

83 The ICRC Commentaries would seem to suggest this. See, for example, ICRC Commentary to the APs, above note 11, para, 45.

84 See ILC Art. 54 and para. 6 of the Commentary thereto.

85 ILC Art. 25 on State Responsibility; see also ILC Art. 25 on the Responsibility of International Organisations. The ILC considers that necessity should not be invoked by international organisations as frequently as by states, so this provision contains an additional condition: only international organisations with a function to protect the essential interest in peril may rely upon it.

86 Commentary to ILC Art. 25 on State Responsibility.

87 Ibid.

88 Arguably, necessity could also be invoked in situations where consent to relief operations has been validly withheld. However, if the plight of the civilian population is such as to give rise to a situation of necessity, reasons for withholding consent that might initially have been valid would have probably become arbitrary, as in the example of protracted hostilities given above.

89 India justified its airdrop of supplies to the besieged city of Jaffna in Operation Poomalai as a ‘mercy mission’, rather than as a counter-measure.

90 ICC Statute, Art. 8(2)(b)(xxv).

91 Ibid., para. 243.

92 ILC Art. 14 on the Responsibility of International Organisations provides that:

An international organisation which aids or assists a State or another international organisation in the commission of an internationally wrongful act by the State or the latter organisation is internationally responsible for doing so if:

  1. (a)

    (a) the organisation does so with knowledge of the circumstances of the internationally wrongful act; and

  2. (b)

    (b) the act would be internationally wrongful if committed by that organisation.

93 It can safely be assumed that a state or international organisation funding or providing material support to an unauthorised relief operation would meet the knowledge condition in ILC Arts. 16 on State Responsibility and ILC Art. 14 on the Responsibility of International Organisations respectively.

94 Commentary to ILC Art. 16 on State Responsibility, paras. 7–9.

95 In the Corfu Channel case, the ICJ underlined ‘every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’. Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, p. 22.

96 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annex to GA Res. 2126, XXV, 24 October 1970.

97 On this issue, see Dinstein, Yoram, ‘The Right to Humanitarian Assistance’, in Naval War College Review, Vol. 54, No. 4, 2000, p. 77Google Scholar.

98 See, for example, Higgins, Rosalyn, ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding Under Art. 25 of the Charter?’, in International and Comparative Law Quarterly, No. 21, 1972, p. 270CrossRefGoogle Scholar; and Oberg, Marko Divac, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, in European Journal of International Law, No. 16, 2005, p. 879CrossRefGoogle Scholar.

99 See Aide-Memoire for the Consideration of Issues Pertaining to the Protection of Civilians in Armed Conflict, Addendum, Part I, C, ‘Humanitarian Access and Safety and Security of Humanitarian Workers’, UN Doc. S/PRST/2010/25, 22 November 2010.

100 See, for example, R. A. Stoeffels, above note 52, p. 289.

101 UNSC Res. S/RES/ 2139, 22 February 2014, op. para. 6.

102 UNSC Res. S/RES/752, 15 May 1992, op. para. 8.

103 UNSC Res. S/RES/757, 30 May 1992, op. para. 17.

104 UNSC Res. S/RES/770, 13 August 1992, op. para. 2.

105 UNSC Res. S/RES/781, 9 October 1992, op. para. 1.

106 Ibid., op. para. 8.

107 At this time, Bosnia and Herzegovina was already an independent state, admitted to the United Nations on 22 May 1992.

108 UNSC Res. S/RES/733, 23 January 1992; UNSC Res. S/RES/746, 17 March 1992; UNSC Res. S/RES/751, 24 April 1992; UNSC Res. S/RES/767, 27 July 1992; and UNSC Res. S/ RES/775, 28 August 1992. None of the parts of these resolutions relating to relief operations were adopted under Chapter VII.

109 UNSC Res. S/RES/794, 3 December 1992, op. para. 10.

110 Letter dated 29 November 1992 from the Secretary-General addressed to the President of the Security Council, UN Doc S/24868, 30 November 1992.

111 UNSC Res. S/RES/688, 5 April 1991, op. paras. 3 and 6.

112 Air Force Historical Studies Office, Operation Provide Comfort and Northern Watch, fact sheet, 9 September 2012, available at: www.afhso.af.mil/topics/factsheets/factsheet.asp?id=19873; and GlobalSecurity.org, Operation Provide Comfort, available at: www.globalsecurity.org/military/ops/provide_comfort.htm.

113 Landgren, Karin, ‘Safety Zones and International Protection: A Dark Grey Area’, in International Journal of Refugee Law, Vol. 7, 1995, p. 443CrossRefGoogle Scholar; D. Schindler, above note 54, p. 699.

114 Statement by the President of the Security Council, S/PRST/2013/15, 2 October 2013.

115 UNSC Res. S/RES/2139, 22 February 2014, op. para. 6. Also of relevance is op. para. 5, where the Council, having called upon all parties to immediately lift the sieges of populated areas, demanded that all parties allow the delivery of humanitarian assistance (including medical assistance), cease depriving civilians of food and medicine indispensable to their survival, and enable the rapid, safe and unhindered evacuation of all civilians who wished to leave.