The Obligation to Accept Humanitarian Relief in Non-International Armed Conflicts: Promises and Pitfalls

Abstract

The denial of humanitarian relief in non-international armed conflicts can deprive civilian populations of supplies essential to their survival. An obligation to accept humanitarian relief promises to strengthen humanitarian access and accountability when fighting parties are unable or unwilling to meet the needs of populations under their control. Arguments in its favour draw on the obligation of humane treatment, the rights to food, water and health, the principle of equality of the fighting parties and the effective territorial control exercised by non-state armed groups. They are reinforced by the customary right of all parties to the conflict to control the delivery of relief during the operational phase. Yet extending an obligation to accept relief to all fighting parties during the preceding strategic phase encounters a structural difficulty. Article 18(2) of Additional Protocol II reserves the legal right to consent to offers of humanitarian relief to the government party and does not confer an equivalent right upon nonstate armed groups. This asymmetry makes it difficult to impose a symmetrical obligation to accept relief upon actors who do not possess a symmetrical right to consent in the first place. Efforts to overcome this obstacle through customary law, analogous interpretation or appeals to effectiveness remain contested and politically sensitive because states associate strategic consent with sovereignty and recognition. Moreover, an obligation to accept relief cannot by itself secure humanitarian access, which depends on negotiation, cooperation and trust.