The Denial of Humanitarian Assistance: The case of Syria

The International Committee of the Red Cross (ICRC) has now entered the sixth day of negotiations with the Syrian authorities over allowing access for humanitarian assistance to the neighbourhood of Baba Amr in Homs. The Syrian authorities have cited security concerns for the denial of access to the ICRC and the Syrian Red Crescent, claiming that the neighbourhood is booby trapped and landmined. Yet the UN Secretary General, Ban Ki-Moon, has stated that he has received “grisly reports” of summary executions and torture by Syrian troops, and it is alleged that the delay in allowing access is so that Syrian forces can hide evidence of such killings. Meanwhile, the Irish authorities have pledged €500,000 in humanitarian assistance toSyria, with Tánaiste and Minister for Foreign Affairs Eamon Gilmore, highlighting the importance of immediate and unhindered access for all humanitarian agencies, and the danger of any militarisation of humanitarian assistance.

The Right to Humanitarian Assistance under IHL

Humanitarian access, particularly in the midst of an armed conflict, has long been a contentious issue. Nevertheless, while the extent of a binding international legal right to humanitarian assistance remains contested, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War does provide certain rights to humanitarian assistance for civilian populations during armed conflicts. For example, Article 23 provides that the entire population in a conflict zone is entitled to receive medical supplies and objects necessary for religious worship; while particularly vulnerable groups such as children under fifteen, expectant mothers and maternity cases are additionally entitled to essential foodstuffs, clothing and tonics. The forms of assistance allowable in international armed conflicts were expanded via Article 70 of Additional Protocol I in 1977 to include clothing, bedding, shelter and other supplies necessary for the survival of the civilian population, plus objects necessary for religious worship.

While ICRC acknowledges that military considerations are part and parcel of decisions surrounding the provision of humanitarian assistance to civilians in conflict zones, GV IV also stipulates that civilian populations are entitled to a minimum level of protection against some of the consequences of war, with key protections in place for hospitals and “neutralised zones”. Particularly vulnerable groups such as the sick and wounded or the elderly should also receive explicit protection.

Furthermore, Article 70 API utilises non-discretionary language: “If the civilian population … is not adequately provided …, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Nevertheless, despite this mandatory language, Article 70 then introduces certain limitations on the provision of this humanitarian assistance. First and foremost, the provision that humanitarian assistance must be “subject to the agreement of the Parties concerned”. Additionally, the Parties have the right to prescribe technical arrangements, including search procedures, under which the passage of humanitarian supplies are permitted. Meanwhile, although Article 71 API provides that humanitarian personnel shall be respected and protected in the discharge of their functions, it also stresses that “[u]nder no circumstances may relief personnel exceed the terms of their mission … In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties”.

These provisions reflect the recognition throughout IHL that while parties to a conflict have explicit responsibilities towards civilians under their control, individual rights may be legitimately constrained, either for military necessity, security reasons or due to insufficient resources.

Considering that the Syrian authorities have argued security concerns for the denial of access for the ICRC and Syrian Red Crescent, at face value this might imply that they are justified in their current stance. Indeed, internal armed conflicts present further difficulties for humanitarian access. Additional Protocol II does not contain the same level of detail regarding relief activities for civilian populations, and Article 18(1) APII provides only a right for humanitarian agencies such as the Red Cross to offer their services for the victims of internal armed conflicts. By implication, such an offer may be refused by a Party to the conflict. Yet, Article 18(2) once again uses mandatory language in proscribing that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population … shall be undertaken”.

Furthermore, the provisions of humane treatment set out in Common Article 3 apply in all internal armed conflicts, and the ICRC has determined that the provision of humanitarian assistance to civilian populations is part of customary international law. Under Customary International Law Rule 55, the parties to a conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, while Rule 56 states that Parties to a conflict must ensure the freedom of movement of authorised humanitarian personnel. Crucially, only in case of imperative military necessity may their movements be temporarily restricted.

The Denial of Humanitarian Assistance as an International Crime

During the negotiations for the establishment of the International Criminal Court (ICC), Sergio Vieira de Mello submitted a communication to the Diplomatic Conference on behalf of the UN Inter-Agency Standing Committee which argued that the wilful denial of humanitarian assistance committed in both international and internal armed conflicts, should be included in the jurisdiction of the Court. While the Rome Statute did not create a specific crime of the denial of humanitarian assistance, the non-provision of humanitarian assistance could be classified as a crime against humanity. As per Article 7 of the Rome Statute, a crime against humanity includes acts committed as part of a widespread or systematic attack against any civilian population that results in murder, extermination, persecution, or other inhumane acts causing great suffering or serious injury to body or to mental or physical health. Indeed, the ICC has noted that “extermination” covers inflicting conditions that destroy life and has specifically highlighted the deprivation of access to food and medicine in this context. Furthermore, Additional Protocols I and II prohibit the deliberate starvation of civilians as a method of warfare, and the ICRC Customary International Law Study has concluded that this prohibition is also part of customary international law in both international and non-international armed conflicts.

So if it is part of a widespread or systematic policy which is considered an attack on a civilian population, the deliberate denial of humanitarian assistance and resultant suffering and potential deaths may amount to a crime against humanity. It is therefore possible for prosecutions under international criminal law to be initiated if evidence comes to light that a deliberate policy of denial of humanitarian assistance has taken place in breach of Syria’s international obligations. Individuals who planned and implemented policies that resulted in the denial of humanitarian assistance could therefore face either national or international criminal charges. The consequential threat of punishment for actions that result in denial of assistance may help ensure not just the mobilisation of national resources for the affected populations, but facilitate access by international agencies to those in need.

On this basis, it would seem that the criminalisation of actions that lead to the wilful denial of humanitarian assistance can provide a key tool in negotiations on humanitarian access in situations of armed conflict. However, Médecins Sans Frontières has noted that:

“… it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state [President Omar al-Bashir], the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner … As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet.”

If this is the case, then the ICC should be cautious in bringing charges against Syrian officials at this stage when the conflict is ongoing, but rather should be actively pursuing credible allegations of crimes within the Rome Statute for potential prosecutions in the future. Meanwhile, in the absence of a unified approach from the UN Security Council, the international community must increase the diplomatic and political pressure on the Syrian authorities to respect their international commitments to provide and facilitate humanitarian assistance to all civilian populations.

The Applicability of Common Article 3 to the Geneva Conventions to Armed Attacks by Transnational Armed Groups

Anna Marie Brennan

This post examines whether armed attacks by Transnational Armed Groups come within the meaning of Common Article 3 to the Geneva Conventions as supplemented by Addition Protocol II (CA3).

A Transnational Armed Group can be described as a non-state armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. The best example of a Transnational Armed Group is Al-Qaeda. Other examples of Transnational Armed Groups include Jemaah Islamiyah and the Palestine Liberation Organisation. However, these particular Transnational Armed Groups are more limited in geographical scope and vary in organisation and objectives. At present, Al Qaeda is the only Transnational Armed Group operating on such a wide geographical basis with training grounds in Pakistan, Afghanistan and Uganda. Al-Qaeda has also proven itself to be global in outlook by carrying out attacks in locations such as Madrid, London, Bali, Karachi and New York.

Two requirements define the scope of application of CA3: (1) the existence of an armed conflict; and (2) that it is a non-international armed conflict. However, characterising attacks by Transnational Armed Groups as an armed conflict within the meaning of CA3 raises major policy questions. First of all, ascribing ‘belligerent’ or ‘combatant’ status to members of Transnational Armed Groups might invest members of such groups with rights and privileges under International Humanitarian Law (IHL). Secondly, the classification of attacks by Transnational Armed Groups as an armed conflict may also symbolically aggrandise the Transnational Armed Group by suggesting that states consider them much more than a sinister criminal organisation. Lastly, categorising attacks by Transnational Armed Groups as an armed conflict could also immunise members of such armed groups from prosecution for proportional attacks directed against military targets. As a result of these issues, it is difficult to categorise attacks by Transnational Armed Groups under either traditional perceptions of war or contemporary ideas of armed conflict. Nevertheless, the attacks do exhibit several characteristics of armed conflict including their purpose, coordination and intensity.

Nevertheless, the question whether CA3 regulates armed attacks by Transnational Armed Groups still remains. The text of CA3 provides very little guidance on the issue. In reality, the text of CA3 is only helpful in determining the type of armed conflicts it does not regulate by identifying its field of application as ‘armed conflict not of an international character.’ Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has arguably clarified the definition of armed conflict in IHL. In particular, the Appeals Chamber in Prosecutor v. Tadic (Tadic) concluded that:

[A]rmed conflict exists whenever there is a resort to armed force between States and protracted armed violence between … such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole of the territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.

Two features of this definition clarify the definition of ‘armed conflict.’ First of all, the definition suggests that an armed conflict exists only if the armed group controls a segment of the state’s territory. Secondly, the definition categorises internal hostilities as an armed conflict only if the violence is protracted. Jinks notes that both requirements would limit the conditions under which CA3 applies. Even though the definition laid down by the ICTY is persuasive, a careful reading of the Tribunal’s reasoning makes clear that it does not restrict the scope of application of CA3 to Transnational Armed Groups.

The Tribunal’s definition does not necessitate that armed groups have control over territory within the state. The Tribunal defines the circumstances in which IHL applies by carefully analysing its general scope of application, the temporal scope of application and the territorial scope of application. Jinks notes that by defining the territorial field of application for non-international armed conflict the ICTY confirms that IHL is applicable in territory that is no longer under the control of the state and in the whole of that territory.

In addition, the ‘protracted’ armed violence prerequisite does not limit the application of IHL in any considerable way. The conclusion reached by the ICTY Appeals Chamber in Tadic indicates that most instances of internal violence would satisfy this requirement. Whether the internal violence is protracted is determined by reference to the entire time period of the armed hostilities from the initiation to the cessation of the hostilities. Moreover, IHL applies to all acts committed during an armed conflict even if the act was committed before the point at which the ‘protracted’ threshold was crossed. To be precise, the ‘protracted’ requirement does not exclude acts committed in the early stages of a non-international armed conflict. The ‘protracted’ armed violence requirement can be best appreciated as little more than a reiteration of the rule excluding isolated and sporadic acts of violence from the scope of IHL. Furthermore, the jurisprudence of the ICTR established that armed violence over a period of a few months meets the ‘protracted’ requirement and, because of the level and intensity of the armed violence, it constituted an armed conflict within the meaning of CA3.

In conclusion, the intensity, coordination, and pattern of attacks by Transnational Armed Groups against the United States and other states make clear that attacks by Transnational Armed Groups are not simply isolated and sporadic acts of violence and constitute an armed conflict within the meaning of CA3. Attacks by Transnational Armed Groups have involved the coordinated use of force and have demonstrated their capability to operate globally even against military and diplomatic targets. It is undoubtedly clear that the organisational capacity of Transnational Armed Groups such as the Palestine Liberation Front and Al Qaeda distinguishes them from ‘mere bandits’ in that they indisputably possess the de facto capability to carry out sustained armed attacks against states.