The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access
December 16, 2016.
The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.
It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.
Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.
It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot.
A military decision to allow humanitarian relief access in an operational area, like so many other decisions that implicate civilians, highlights the balance of interests central to the regulation of armed conflict. Dictates of humanity compels maximum access for such efforts. However, military necessity compels commanders to prevent or restrict such access when it will interfere with their efforts to bring an enemy into submission or otherwise achieve their military objectives. When this occurs, there are simply no absolutes. And, while I suspect that the Guidance drafters searched for some basis to propose an absolute obligation that conclusively prioritized the humanitarian objective of mitigating civilian suffering, the law simply cannot sustain such a rule.
Nonetheless, the treatment of the issue of consent, and the accordant question of what qualifies as an arbitrary denial of consent, hold the potential to make a significant contribution to implementing an effective balance between humanity and military necessity. Those aspects of the Guidance frame what certainly appears to be a presumptive obligation to facilitate humanitarian assistance. When understood in such terms, the humanitarian objective of the Guidance is advanced because it imposes a burden on the military commander to base any denial of access or significant restriction on access on credible objective operational considerations: will access actually impede or compromise the effectiveness of military operations.
Viewing the obligation to facilitate humanitarian relief access as presumptive is, I believe, completely aligned with the overall international humanitarian law framework related to civilian protection. At the very core of that framework is the obligation imposed on military commanders and the armed forces they command to, “take constant care” to mitigate risk to civilians. This obligation is codified in Article 57 (1) of Additional Protocol I, which provides that, “[I]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” While this constant care obligation is most commonly associated with precautionary measures that must be integrated into the targeting process, there is no rational basis to consider this the exclusive focus of this obligation. Instead, as I have argued in a previously published article, the “constant care” obligation transcends the targeting process, and should influence every aspect of training, operational planning, mission execution, and accountability efforts.
I consider it inconceivable that feasible measures to mitigate the suffering and deprivations inflicted upon civilians as the result of armed conflict would not include a constant effort to reconcile operational and tactical effectiveness with facilitating access by humanitarian actors to those in need. By emphasizing that this is an obligation, albeit qualified; and stressing that arbitrary interference with such efforts is incompatible with this obligation, the Guidance will ideally contribute to the mindset of military actors when faced with access requests. Equally important is the impact this Guidance should have on military doctrine and operational planning. By emphasizing the obligation to justify denial of access with objectively credible operational and tactical considerations, commanders should endeavor to identify in advance the type of considerations that satisfy this requirement, and train subordinates of their obligation to facilitate humanitarian access in the absence of such justifications.
Still, as noted earlier, even this admirable and much needed effort will not eliminate the ability of military personnel to “game” the framework articulated in the Guidance. It is an unfortunate reality of regulatory norms that seek to balance competing interests – even norms that reflect presumptive obligations – that improper interpretation will undermine the ultimate interests these norms aspire to advance. In this context, interpretation of concepts used in the Guidance like “arbitrary denial”, or even what qualifies as, “inadequately supplied”, could easily expose civilians to unjustified deprivations and suffering. But this is a risk inherent in almost all such international humanitarian rules and norms, all of which rely on good faith interpretation and application for efficacy. Ultimately, efforts such as this reduce the opportunity for the manipulation of regulatory rules and norms by providing a more comprehensive and effective touchstone for assessing good faith.
It is apparent that this Guidance is important to contribute to the mitigation of civilian suffering in the future. But it should also be apparent that it is equally important because it will contribute to the efforts of armed forces genuinely committed to good faith implementation of international humanitarian law to better understand the relationship between their military mission and the efforts of humanitarian relief actors. While there will almost certainly be some debate as to the content of this Guidance, that very process will contribute to both these important objectives. Well done.