The Case for a Prohibition on Arbitrary Denial of Humanitarian Relief in Non-International Armed Conflicts: Prospects, Challenges and Ways Ahead

Abstract

A prohibition on the arbitrary denial of humanitarian relief would render the law governing international humanitarian relief in non-international armed conflicts (NIACs) more effective. It would secure humanitarian access for civilian populations in need and enhance the accountability of fighting parties. However, crystallizing such a prohibition under customary or treaty law would depend on a symmetrical legal right of all fighting parties to consent to humanitarian relief during both the initial offer and delivery phases. Yet, under Article 18(2) of Additional Protocol II to the Geneva Conventions, non-state armed groups, unlike government forces, lack the legal right to strategic consent. This asymmetry prevents the symmetrical legal foundation upon which a prohibition of arbitrary denial could rest. States should engage in efforts to lift this exception and work toward amending Additional Protocol II. While such reforms may remain politically unlikely in the near future, advancing a dialogue on this issue is imperative to address the legal vacuum and strengthen humanitarian relief protection in NIACs.