1. Introduction
Most armed conflicts that occur globally now and in recent decades, regardless of their legal characterisation as international or internal, involve non-state armed groups as parties.Footnote 1 Those armed groups frequently exercise effective control over a territory and its inhabitants.Footnote 2 Yet, the law governing armed conflict does not properly and adequately address the issue in a concrete and comprehensive manner.Footnote 3 As argued by Sandesh Sivakumaran, it is because of the inherent differences between non-state armed groups and states that the law of international armed conflict cannot be extended to apply to internal conflicts.Footnote 4 On the contrary, this article suggests a more practical approach in order to fill the lacuna: this misrepresentation of the territorial aspect of armed groups. The article suggests the use of traditional tools of interpretation and the existing jurisprudence to modify, adapt and reinterpret existing norms so as to extend their application, if needed, and ensure greater protection of victims in times of armed conflict – victims who find themselves under the control of a non-state party to a conflict.
One important aspect of the protection of victims in times of armed conflict is ensuring unimpeded access to humanitarian relief. This is essential for the civilian population. The regulation of unimpeded access to humanitarian assistance is vital, sometimes even to a greater extent, when civilians are located in a territory no longer under the control of a state, but under that of an armed group. The law regulating access to humanitarian action does not ignore the involvement of these armed groups. As is elaborated in the following section, non-state parties are acknowledged by international humanitarian law (IHL).Footnote 5 However, the nature of conflicts involving a non-state party (an organised armed group) may impose certain difficulties in providing relief consignments and protecting relief personnel. Such difficulties are reflected, for example, in the ongoing armed conflicts in the Middle East:Footnote 6 the city of Darayya (Syria), which was under siege by the Syrian army and at other times controlled by armed groups, only recently received relief for the first time in almost four years.Footnote 7 Previous convoys of food and medicine were refused access; the city's inhabitants suffer from malnutrition, sickness and lack of vital medical treatment as a result of the long fighting, the siege of the city, and refusal of humanitarian aid by either party to the conflict.Footnote 8
Unfortunately, a simple and literal reading of the existing instruments regulating access to humanitarian relief does not also take into consideration the territorial aspect of armed groups operating in the theatre of the conflict. As mentioned above, the misrepresentation of the territorial aspect of certain armed groups in the provisions of IHL is not specific to humanitarian assistance – though, as will be discussed further in this article, the regulation of access to humanitarian assistance has much to do with the effective control of territory.Footnote 9 This lacuna, or misrepresentation, reduces the level of protection of the civilian population in the said territory. Therefore, it is suggested that under certain conditions, once an organised armed group exercises effective control over a territory, the law of occupation regulating access to humanitarian assistance should apply mutatis mutandis to that territory. This expansion is founded on the principles of humanity and effectiveness, two leading principles in IHL. Moreover, instead of focusing on the legal status of the armed group, it centres on the factual circumstances, which may reduce the risk of encountering issues of state sovereignty.Footnote 10
This expansion of the law depends on the linkage between the main principles guiding humanitarian relief operations and the practical (and legal) role played by armed groups in the theatre of war. This article does not aim to cover all situations involving non-state actors; rather, it focuses on those armed groups that exercise a sufficient amount of control over a defined territory. Nor does it aim to discuss in depth what would be a sufficient amount of control exercised by the armed groups over that territory. Instead, the article argues that this expansion of the scope of application serves the principles guiding IHL. Moreover, relying on the applicable legal framework, it argues that such expansion is not implausible or fanciful.
The article will first identify the general legal framework regulating access to humanitarian relief, underlying the differences between the various legal instruments (Section 2). In order to frame the principles governing access to humanitarian relief and their effect on non-state armed groups, the article will briefly observe the requirement of consent as a key element (Section 3). As consent is one of the key components of the regulation of humanitarian assistance, it warrants a separate section. This is because of the central role this requirement plays in the regulation of access as well as the relevance of its guiding principles to the argument of this article (as will be elaborated further). The article then reviews the principle of effectiveness in international law, and especially its link with territoriality and control over territory (Section 4.1). This review will enable the analysis and appraisal of the impact that such control has on the role of armed groups in the context of humanitarian relief. Finally, the article will evaluate the outcomes of the suggested expansion of the scope of application (Section 4.2).
Before delving into the analysis, a preliminary remark should be made. The aim of this article is not to define or review all aspects of humanitarian assistance, nor to evaluate in depth its key elements. At an initial stage, however, the term and definition of ‘humanitarian assistance’ or ‘relief’ should be clarified, at least for the purpose of this article, as it seems that a comprehensive, hard law definition of these terms does not exist in international law.Footnote 11 It could be defined loosely as ‘providing emergency relief for people affected by natural or man-made disasters’.Footnote 12 The terms ‘humanitarian assistance’ and ‘humanitarian relief’ will be used alternately and interchangeably in the following paragraphs.
2. The Legal Framework: Duties and Obligations
Because this article suggests that the law regulating humanitarian assistance in occupied territories should apply mutatis mutandis to armed groups that control territory, it is essential to track the historical development of this law and the obligations it imposes. Historically, the idea of providing relief to victims of armed conflicts appeared in the middle of the nineteenth century after Henry Dunant encountered hundreds of wounded soldiers left behind to die in the battlefield of Solferino. This event prompted the establishment of the International Committee of the Red Cross (ICRC).Footnote 13 Although its legal development in the sphere of international law can be, and sometime is, linked with the development of human rights law, human rights are rights granted to individuals, while humanitarian assistance is conceived rather as a collective right.Footnote 14 Unfortunately, at the time of its origination, the idea was sporadically regulated and it protected only specific groups of victims: prisoners of war and those wounded in the battlefield.Footnote 15
It remains true that the drafting of the 1929 Geneva Conventions enabled the ICRC to carry out large relief operations during the Second World War, but it was the aftermath of that war and the adoption of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) that signified the increasing importance of the humanitarian aspect to the protection of all war victims (including civilians).Footnote 16 This shift, rooted in the tragedy of the war but also reflecting later conflicts of the twentieth century (such as the Biafra conflict), in parallel with the development of and emphasis given to human rights, had an impact on the content of the 1977 Protocols Additional to the Geneva Conventions (Additional Protocol I and Additional Protocol II).Footnote 17
Following an understanding of the circumstances that led to the codification of humanitarian assistance to all victims of war rather than just selected groups, we shall move to the discussion of the regulation itself, the duties it imposes, and on whom. The primary responsibility to maintain and provide for a civilian population affected by hostilities lies on the affected state or states,Footnote 18 as an aspect of state territorial sovereignty.Footnote 19 This responsibility includes that of an impartial organisation and distribution of needed relief.Footnote 20 This obligation is enshrined in Geneva Convention IV and differs between the general responsibility of any state, party to a conflict or not (but party to the Geneva Conventions), and the particular obligations in cases of occupation. In particular, Article 23 of the Convention states:
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for the civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. (emphasis added)
Article 59 of the Convention emphasises the following:
If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all means at its disposal.
…
All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection. (emphasis added)
Moreover, Article 62 of the Convention recognises the individual right of ‘protected persons’, those civilians who find themselves ‘in the hands of a Party to a conflict or Occupying Power of which they are not nationals’.Footnote 21 It recognises the provision of ‘individual relief’ and emphasises that such civilians will be allowed to receive such individual relief unless it is halted for ‘imperative reasons of security’.Footnote 22 A similar reservation was proposed to be included in Article 59 (‘collective relief’) but was not adopted.Footnote 23 Article 59 enables the occupying power to seek assistance from other states and organisations. However, Article 60 of the Convention emphasises that ‘relief consignments shall in no way relieve the Occupying Power of any of its responsibilities’.Footnote 24 In other words, the occupying power cannot escape its duties by outsourcing them.
Geneva Convention IV regulates the rights of protected persons fairly well, as noted above. However, the rights of a state's own nationals during an international armed conflict (IAC) or in a non-international armed conflict (NIAC) are not addressed adequately.Footnote 25 In this respect, Common Article 3 to the Geneva Conventions, which regulates NIAC within the scope of the Conventions, might be understood as providing for such basic needsFootnote 26 as it provides a minimum humanitarian standard. However, the relevant provision is not spelled out explicitly. Read literally then, this right does not exist as such in NIACs,Footnote 27 nor with respect to civilians subject to the control of a party to the conflict who do not fall within the definition of ‘protected persons’, as provided for in Geneva Convention IV.
An attempt to complement and fill this gap was made in the adoption of Additional Protocols I and II, supplementing the Geneva Conventions and regulating respectively IAC and NIAC.Footnote 28 Article 70(1) of Additional Protocol I clarifies that:
[i]f the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided … 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. (emphasis added)
Additional Protocol II, Article 18(2), establishes that:
[i]f 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.
The basic obligations of states and the collective right of the civilian population, regardless of the type of conflict concerned, were recognised as part of customary law by the ICRC and the United Nations (UN) Security Council.Footnote 29 Later, the Institute of International Law endeavoured to apply to ‘[a]ny other authority exercising jurisdiction or de facto control over the victims’ the same obligations as those imposed on states.Footnote 30 While the Institute recognises, among others, the obligation to seek assistance if necessary, it imposed such obligation only on affected states.Footnote 31
Alongside the humanitarian obligations enshrined in the various IHL instruments, access to humanitarian assistance can also be perceived as a right, founded in international human rights law.Footnote 32 As mentioned above, the law regulating access to humanitarian assistance increasingly developed in parallel with the growth of human rights law. Arguably, denial of access to humanitarian relief can be considered a threat to human life and human dignity, and would constitute a violation of fundamental human rights.Footnote 33 It could also be argued that the right of access to humanitarian assistance is encompassed in the right to lifeFootnote 34 because unreasonably preventing such access will cause the starvation of the civilian population.Footnote 35
Accordingly, economic, social and cultural rights are also relevant when analysing the obligations and rights attached to humanitarian relief.Footnote 36 Among these rights should be considered the right to an adequate standard of living and freedom from hunger.Footnote 37 Unlike the right to life (or others), the realisation of economic, social and cultural rights may be gradual and to the extent feasible by the state.Footnote 38 Nonetheless, as clarified on numerous occasions by the Committee on Economic, Social and Cultural Rights, and especially in its General Comment 3, if a state is unable to provide for its civilians with the rights enshrined in the International Covenant on Economic, Social and Cultural Rights, it should seek outside international assistance.Footnote 39 Clearly then, the right to access humanitarian assistance is not solely a collective right regulated by IHL; it is also a protected individual right, provided for under human rights law.
Together with the right of the civilian population to assistance, there exists the right of international and sui generis organisations, such as the UN and the ICRC,Footnote 40 to offer and provide humanitarian relief.Footnote 41 Such an offer cannot be unreasonably denied if the needs of the civilian population are not adequately met.Footnote 42 It also means that any action by humanitarian organisations related to the provision of humanitarian relief in no way constitutes a breach of a state's internal affairs per se,Footnote 43 involvement in the armed conflict, or an unfriendly act.Footnote 44 Security Council practice may be considered contradictory, as it often authorises impartial UN agencies to offer and provide humanitarian assistance as if, without such authorisation, provision of aid would be seen as a violation of international law.Footnote 45 However, in his 1998 report the Secretary General emphasised that:Footnote 46
[w]hile full respect must be shown for the sovereignty, independence and territorial integrity of the States concerned, where States are unable or unwilling to meet their responsibilities … the international community should ensure that victims receive the assistance and protection they need to safeguard their lives. Such action should not be regarded as interference in the armed conflict or as an unfriendly act so long as it is undertaken in an impartial and non-coercive manner.
Derived also from this concept is the free movement allowed for humanitarian assistance personnel,Footnote 47 which means that in order to ensure that humanitarian assistance is properly provided, the personnel providing it should be allowed entrance and free movement.Footnote 48 It is clear that an affected party has an obligation to respect and protect humanitarian relief personnel,Footnote 49 although this obligation, established in Additional Protocol I, does not form part of the obligations provided in Additional Protocol II.
While all states must provide free passage for humanitarian relief, irrespective of the state's involvement in the said conflict,Footnote 50 belligerent states or other belligerent parties to the conflict have more elaborate obligations, which can be summarised as follows: authorisation (granting) of access; facilitation of access; and protection of relief consignments and personnel.Footnote 51 These obligations apply to all types of armed conflict.Footnote 52 Although the Institute of International Law equates the duties of ‘affected states’ and ‘other types of authorities’,Footnote 53 the wording of the law differs between the obligations of states and those of non-state armed groups. Hence, one cannot deduce from Additional Protocol II anything more than the obligations to authorise and not to obstruct.Footnote 54 In this respect, the most protective framework is that provided by Geneva Convention IV regulating the behaviour of the occupying power.Footnote 55
3. The Requirement of Consent: General Observations and the Territorial Aspect
The regimes of humanitarian assistance within the framework of IHL emphasise the need for the parties’ consent, and especially the consent of states.Footnote 56 With the exception of Article 59 of Geneva Convention IV, which addresses the obligations of the occupying power to accept a relief scheme,Footnote 57 all relevant provisions contain the need for consent, either by using the word ‘permit’,Footnote 58 ‘agreement’Footnote 59 or the actual term ‘consent’.Footnote 60 The requirement of state consent is considered to be an expression of state sovereignty or the authority of the state essential for the delivery of humanitarian assistance.Footnote 61 The following section aims to review briefly the term ‘consent’ and its limitations in each of the provisions regulating humanitarian assistance, although it does not aim to define the term or its synonyms.Footnote 62 It will also review whether the requirement of consent is connected to territorial control.
3.1. The Requirement of Consent: Legal Framework and Observations
The requirement of state consent and its conditions in IAC were first provided for in Article 23 of Geneva Convention IV. The Article subjects the state's obligation to provide free passage of humanitarian relief to the following three guarantees:Footnote 63 (i) that there is no danger of misappropriation; (ii) that there is the possibility of supervising the shipment of the supply; and (iii) that the supply does not give undue advantages to the adverse party.Footnote 64 These conditions appear to leave a wide range of discretion to states.Footnote 65 This reflects a compromise: on the one hand, the principle of free passage is literally included in the Convention and no longer depends on interpretation by the parties; on the other hand, it is limited by providing a wide margin of discretion for states to refuse such passage.Footnote 66 The requirement to receive consent has also been affirmed in Additional Protocol I.Footnote 67 Like Article 23, it mentions the conditions that may be imposed by the parties for free passage, such as technical arrangements and subjecting the distribution to supervision.Footnote 68 The inclusion of these specific conditions provides states with some margin of discretion. However, despite the vagueness of these conditions, consent may not be withheld arbitrarily.Footnote 69 Additional Protocol I also supplements Article 23, as it uses the term ‘parties concerned’, which seems also to encompass armed groups.Footnote 70
Additional Protocol II also subjects the provision of relief consignment to consent, but only that of the ‘High Contracting Parties’.Footnote 71 The basic principle underlying this provision is that states are the primary bearers of responsibility for the well-being of the civilian population, and external providers (such as relief organisations) are seen to be auxiliary – there to assist the authorities in their task.Footnote 72 Whereas the offering and providing of humanitarian aid should not be presumed as intervention in the armed conflict or as an unfriendly act,Footnote 73 refusing such aid is not an illegal act per se.Footnote 74 Moreover, while the denial of humanitarian assistance may amount to a violation of Article 14 of Additional Protocol II (which prohibits starvation of the civilian population as a method of warfare)Footnote 75 such denial would still be in compliance with Article 18(2), which frames the conditions for state consent. This idea is reflected in the ICC Statute,Footnote 76 which excludes the wilful impediment of humanitarian relief as the war crime of starvation in a NIAC.Footnote 77 Either way, clearly the refusal of humanitarian assistance cannot be arbitrary.
Another aspect of Article 18(2) relates to the identity of the party that should consent to the aid.Footnote 78 The term ‘High Contracting Parties’ has been interpreted by the ICRC as relating to the ‘government in power’.Footnote 79 Indeed, the law stricto sensu refers only to states; in practice, however, it would be unrealistic to ignore the non-state armed groups operating in the territory of the state, and especially if these groups exercise control over parts of the territory.Footnote 80 For example, the FARC (the Revolutionary Armed Forces of Colombia – People's Army), the Liberation Tigers of Tamil Eelam in Sri Lanka, and the armed groups operating in Syria (ISIS, Jabhat Al-Nusra and others) all exercise (or exercised) effective territorial control and were taken into consideration when coordinating access to humanitarian assistance.Footnote 81 In other words, as a minimum, coordination should be with the non-state armed group as a concerned party, alongside the territorial state, once the aid is intended to pass through or is transferred to the territory it controls.Footnote 82
Arguably, when the state no longer has control over a territory, obtaining the consent of just the armed group might suffice.Footnote 83 This argument is based on the factual (and true) assumption that the non-state armed group is in practice able to give or withhold such consent, which it might refuse, regardless of law, because it is not able to ensure free passage for other reasons.Footnote 84 In most cases, however, although not in control of the territory in practice, the state still has some influence over access; thus coordination with it is essential even if the armed group has consented to the relief operation.Footnote 85 The state either controls the territory through which the relief operation might pass or may use its diplomatic power, vis-à-vis other states, to influence such passage through the territory of other states.Footnote 86 The ICRC air relief in the Biafra conflict exemplifies these problems: the modalities for the relief operation chosen by the ICRC were not agreed by the government, resulting in severe consequences and the non-cooperation of the authorities later.Footnote 87 Clearly, all concerned parties should be consulted and consent to the relief operation should be procured for its success as well as the success of future operations. However, one may wonder what might be the power of the de jure government's consent in situations where the armed group in control of the territory withholds such consent? In any event, as in the case of international armed conflicts, consent in a NIAC cannot be withheld arbitrarily.Footnote 88
3.1.1. Withholding Consent and Occupied Territory
As consent is required, it may also be withheld for good reasons. These includeFootnote 89 security considerations (if the safety of the relief consignment or personnel cannot be guaranteed); situations in which the state is able to supply the needs of the population and does so in fact; or where the relief operation and consignment are suspected to violate the basic requirements stated in the provisions of Geneva Convention IV or the Additional Protocols (for example, it is not impartial or neutral, or is diverted by the belligerent to fund the war efforts). However, IHL makes an exception and applies a different regime in cases where the relief consignment is directed to the population of an occupied territory.Footnote 90
The exception established for occupied territories by Article 59 of Geneva Convention IV is reaffirmed in Article 70(1) of Additional Protocol I, which explicitly excludes occupied territories from its regime.Footnote 91 Article 69(2) of the Protocol reaffirms it, stating that ‘[r]elief actions for the benefit of the civilian population of occupied territories are governed by Articles … of the Fourth Convention, and by Article 71 of this Protocol [relating to personnel participating in relief action]’.Footnote 92 Clearly, the exceptional conditions of occupation required a separate and stricter regime.
Article 59 of Geneva Convention IV regulates this exceptional regime and states that the occupying power ‘shall agree to the relief schemes on behalf of the said population [the population of an occupied territory inadequately supplied] and shall facilitate them by all means at its disposal’.Footnote 93 The regime provided by Article 59 was interpreted as establishing an unconditional obligation of the occupying power to consent and facilitate the relief operation. As explained by Pictet, the obligation imposed on the occupying power by Article 59 is interpreted differently from the general obligation provided in Article 23 because it is unconditional – that is, as long as the relief is directed to the civilian population in the occupied territory, the occupier must grant access.Footnote 94 The occupying power is expected to ‘co-operate wholeheartedly in the rapid and scrupulous execution of these schemes’.Footnote 95 In other words, the occupying power should be notified of the relief operation and the modalities, but providing such relief does not depend on the occupier's consent.Footnote 96 Article 59 also obliges other states, whether belligerent or neutral, to permit the free passage of relief consignments through their territories and guarantee the protection of that relief.Footnote 97
In parallel with these obligations, states granting free passage have the right to ensure that the nature of the relief consignment is humanitarian and neutral.Footnote 98 This right of the belligerents encompasses also their military and security considerations, with the general aim of avoiding hampering their general war efforts.Footnote 99 However, the safeguards provided by Geneva Convention IV must not be misused.Footnote 100 Nonetheless, while states (other than the occupying power) are obliged to authorise the passage and guarantee the protection of the relief consignment, the rights given to states in Article 59(4) (to search the consignment and regulate its passage) indicate that the relief operation should be based on prior agreement.Footnote 101 Agreement here does not entail consent, but rather a sense of prior arrangement or understanding whereby the state (third, belligerent or occupier) has been notified and has the ability to ensure its security.Footnote 102 Even though it is an unconditional obligation, violating the obligations set out in Article 59 is not a ‘grave breach’ of the Convention,Footnote 103 but it will constitute a war crime if carried out intentionally.Footnote 104
3.2. Territorial Control: A Key Element in the Framework of Humanitarian Assistance?
As will be reviewed below, control of a territory is both a legal and a practical component of a relief operation. Both Additional Protocols (Article 70(1) Additional Protocol I and Article 18(2) Additional Protocol II) use the term ‘concerned’ when addressing the parties. The commentaries to both Additional Protocols, as well as the ways in which scholars have interpreted the term ‘concerned’, refer to the parties through whose territories the relief consignment must pass, from their territory the relief consignment is initiated and the receiving territory.Footnote 105 In other words, the law has recognised the link between territorial control and the requirement of consent. In practice, it will be favourable for an effective, rapid and safe relief operation, and to achieve the consent of the party (or parties) (state or armed group) which exercises control over the said territory.Footnote 106 Moreover, in a conflict involving non-state armed groups exercising control over territory, acquiring only the consent of the state is insufficient and may impede the relief operation.Footnote 107
The requirement of consent by the concerned parties reflects in general the balance between the need to provide for the victims and respect for state sovereignty.Footnote 108 Typically, international law refers to sovereignty as a synonym of territorial integrity, assuming that control of territory by the state and the attribution of such territory to the state are the same.Footnote 109 This balance between the needs of the victims and state sovereignty in the controlled territory does not exist when dealing with an occupied territory; after all, the occupying power is obliged to agree unconditionally to the relief operation.Footnote 110 This probably reflects the fact that the occupying power is not the legal sovereign of the territory it occupies, but merely exercises its jurisdiction there. In other words, the occupier is effectively a substitute for the legal sovereign of the territory, but is not the sovereign itself.Footnote 111
The link between territorial control and access to humanitarian assistance should be reviewed and analysed. Obviously, territorial control is relevant in the situation of occupied territories. However, there might be territories controlled by a party to a conflict other than those recognised as occupied.Footnote 112 In these former situations, the control required over the territory is of a material nature – the party concerned may exercise its decision to provide access to the humanitarian assistance.Footnote 113 The notion of ‘party’ includes not only sovereign states but also armed groups involved in an IAC as provided by Article 1(4) of Additional Protocol I.Footnote 114 Arguably, from a practical point of view, relief operations in an IAC will be coordinated with those exercising effective control over the territory in question (for passage or supply) which are able to permit and guarantee the safety of the relief consignment and personnel. This practicality is reflected in the legal framework, and in the manner in which the word ‘concerned’ has been interpreted.
In situations of NIAC the law relating to humanitarian assistance in short disregards the territorial aspect, as the consent of the armed group party to the conflict, which must exercise control over territory as a sine qua non condition for the application of Additional Protocol II,Footnote 115 is not required.Footnote 116 There is a literal difference between Article 70(1) of Additional Protocol I and Article 18(2) of Additional Protocol II, as only the former requires the consent of the non-state armed group as a concerned party, although both apply in practice to the same type of entity: a non-state armed group which materially controls parts of a state's territory.Footnote 117
While this contribution does not intend to discuss to the fullest extent the territorial element of armed groups in international law, a few brief remarks should be made on this point. Indeed, while Additional Protocol II explicitly addresses the territorial features of an armed group, Additional Protocol I does not. However, debatably, this ‘territoriality’ is embedded in Article 1(4) of Additional Protocol I, as those armed groups falling within the scope of that Protocol probably already possess the features of regular armed groups.Footnote 118 In this respect, the requirements of intensity and organisation, which are required to fulfil the lower threshold of NIAC in accordance with Common Article 3, recognise territorial control as one of the indicators of such a threshold.Footnote 119 Whether or not this assumption is true, territorial control is a fairly well recognised indicator for the existence of an armed group appearing in many working definitions of military manuals, international organisations and other non-governmental organisations.Footnote 120 In any event, Additional Protocol I will consider national liberation movements as concerned parties in light of the territory controlled by them.
Assuming that similarities exist between those armed groups addressed in Additional Protocol I whose consent is required, and those groups addressed in Additional Protocol II, one should question why the consent of the latter group is not required. Sandesh Sivakumaran suggests that it was because of the insufficient attention paid to the specificities of NIAC while the Protocols were being drafted.Footnote 121 According to Sivakumaran, while the threshold of Additional Protocol II requires an armed group to exercise control over territory, its other provisions tend to ignore this aspect in practice.Footnote 122 Clearly then, both concerned armed groups have similar features (organisation, territory, responsible command) although legally they differ in their legitimacy: while national liberation movements have gained some sort of legitimacy in international law, demonstrated by the capacity to turn a conflict to which they are a party into an IAC, armed groups in a NIAC have not.Footnote 123 However, in the modalities of relief operations, one should ask what are the practical differences. Relying on these observations, assuming that from a practical standpoint no difference exists, and the failure to require the consent of the armed group literally should be addressed as an omission, one should still question whether the territorial control exercised by armed groups should entail a more restrictive regime, one that reflects the principle of effectiveness rather than gives precedence to state sovereignty.
4. Effectiveness and the Obligation to Permit Access
As described above, humanitarian assistance and relief operations are aimed at assisting victims of a conflict in the event that the territorial state is unable to do so. The consent of the states concerned (those where there is a link between their territory and the relief operation) is required. As reflected above, the requirement of consent ensures that relief operations are organised and launched while, on the one hand, ensuring the facilitation and protection of the consignment and personnel and, on the other hand, respecting and preserving the principle of sovereignty. The exception to the requirement of consent arises in the situation of providing assistance to the population of an occupied territory. Nonetheless, even in those cases of occupation, in practice concerned states (beside the occupying power) should be consulted (as reflected by Dinstein).Footnote 124 They should give their consent, but they may inspect the consignment.Footnote 125 As elaborated above, this ensures a rapid and effective operation. In other words, the law regulating humanitarian assistance, like IHL, prefers realistic and effective guidelines. As such, the law of humanitarian assistance should be adapted to also embody the effective control exercised by armed groups. In the following section, effectiveness – a guiding notion in international law – is briefly explained along with its relationship with IHL, especially in the case of armed groups. Based on these understandings, a new framework that incorporates obligations provided in Article 59 of Geneva Convention IV will be presented.
4.1. Territorial Non-State Armed Groups and Effective Capacity
The notion of effectiveness is central when discussing territorial situations, armed groups and sovereignty, as well as humanitarian assistance. It seems that the regulation of access to humanitarian action reflects this spirit as it primarily protects the civilian population, and the obligations and duties of the parties are designed by their legal and practical effects.Footnote 126 By focusing on the territorial features of the parties (as explained above), the law regulating humanitarian assistance in effect aims for its effective and realistic application. The importance of territorial control and its centrality reflects the significant and leading role of effectiveness in IHL. Moreover, the legal framework suggested by this article relies on this notion and its function. Hence, there is a need to briefly explain and define the notion of effectiveness.
4.1.1. Effectiveness
The notion of effectiveness plays an important role in international law. It has several functions.Footnote 127 In the international legal system following the Second World War and the Charter of the UN it implies that in parallel with basic principles, such as the prohibition on the use of force and self-determination, effectiveness could affect and even modify legal concepts, or assist in resolving disputes.Footnote 128
Effectiveness describes a state of affairs by which a factual situation has a ‘stronger and more widespread effect’ in international law.Footnote 129 This is the idea that legal fictions are not welcome in international law. It has been understood and interpreted in two ways that reflect two basic positions. The first is that a factual situation strongly affects legal norms.Footnote 130 The second, and the more restricted interpretation, corresponds with acquiring rights and obligations in international law.Footnote 131 The latter ‘view’ is very much reflected in the law of acquiring territory or the protection of nationals.Footnote 132
IHL is grounded primarily on the notion of effectiveness, as reflected in international jurisprudence and clearly exemplified by the International Criminal Tribunal for the former Yugoslavia (ICTY) in its Tadić appeals judgment:Footnote 133
Rather, [IHL] is a realistic body of law, grounded on the notion of effectiveness and inspired by the aim of deterring deviation from its standards to the maximum extent possible. It follows, amongst other things, that humanitarian law holds accountable not only those having formal positions of authority but also those who wield de facto power as well as those who exercise control over perpetrators of serious violations of international humanitarian law.
Hence, the application of IHL to territorial situations is triggered by the criterion of effectiveness and not sovereignty.Footnote 134 The norms that regulate the position of a territory unlawfully but effectively controlled apply regardless of the legitimacy of such control,Footnote 135 and are designed to effectively protect the civilian population.Footnote 136 This set of norms encompasses the classical state of belligerent occupation as well as other territorial situations in which armed groups are involved as parties.Footnote 137
4.1.2. Territorial Armed Groups
The control exercised by armed groups over territory is a central element of these groups in law and in practice. It is an explicit requirement for the applicability of Additional Protocol II,Footnote 138 it is implicitly required under the notion of ‘organisation’ of the armed group,Footnote 139 and is present in the working definitions applied by various actors. Nonetheless, this aspect, in terms of law, suffers from lack of regulation.Footnote 140 In fact, there are no written rules that regulate the relationship between the armed group and the population in the territory under its control.Footnote 141 In respect of human rights law, there emerges a position in which such groups exercising control over territory and which have a political structure are expected to comply with human rights obligations. This view is explicitly expressed by the UN Human Rights Council.Footnote 142 This idea is based primarily on the capacity to exercise a public function.Footnote 143 Moreover, some suggest that all rights conferred by international law belong to the population; therefore, even if a non-state armed group effectively controls a territory and consequently the population inhabiting it, these attributed rights should still be respected.Footnote 144 While this approach might still be considered controversial, there is no reason for a gap in IHL to exist in respect of these situations.Footnote 145 In this respect, analogy with the law of occupation can be made. The law could be broken down into those parts and provisions that could and should in fact apply to the territory and population controlled by armed groups.Footnote 146
It is submitted, therefore, that this analogy with the law of occupation is relevant to the framework that regulates access to humanitarian action. First, access to humanitarian assistance has been recognised not solely as an obligation of the parties but as a right of the civilian population.Footnote 147 Second, in the regulation of humanitarian assistance, the legal and practical rights and obligations of the parties derive mainly from their control of a territory.Footnote 148 This is even truer with regard to non-state armed groups, as their general status in the cadre of IHL, and especially as concerned parties (legally and practically) in relation to relief operations, stems from their control of a territory. Arguably, once a non-state armed group controls a territory, it has the capacity to comply with the various international obligations, IHL, human rights law and specifically the obligations set out by the law of belligerent occupation, for example, by way of analogy.Footnote 149 This idea is not as far-fetched as it seems: the wording of Article 1(1) of Additional Protocol II assumes that groups with these features can ‘implement this Protocol’.Footnote 150
4.2. Applicability of Article 59 as a Matter of Effectiveness – the Armed Group as a Power
The territorial feature of armed groups is essential; it reflects and enhances their ability to comply with IHL and, in specific circumstances, such control may trigger the application mutatis mutandis of certain provisions of the law of occupation. From this starting point, it is argued that Article 59 should regulate access to humanitarian assistance in situations of armed groups exercising effective control over a territory. This applicability of the Article 59 regime will not only impose further obligations on the armed group itself, but also on the other parties concerned with the conflict and the relief operations. In the following section, the applicability of Article 59 will be addressed in light of two different legal frameworks: IAC and NIAC.
Before reviewing the modalities of applying Article 59 to the different types of conflict, one should briefly address the capacity of armed groups to comply with IHL. Even before the adoption of the Geneva Conventions, armed groups were recognised as having the ability to comply with international law, especially with IHL; this ability is one of the conditions for the recognition of belligerency.Footnote 151 The wording of Common Article 3 to the Geneva Conventions did not mention this requirement expressly, but the Commentary refers to it as a useful indicator for differentiating between a genuine armed conflict and other acts of banditry.Footnote 152 International jurisprudence later included it as one of the criteria defining the level of organisation possessed by the armed group, and which ensured that the violence in question amounted to an armed conflict.Footnote 153 Finally, such ability to comply with IHL was explicitly included as a sine qua non condition in Additional Protocol II.Footnote 154 The requirement to comply with IHL does not mean that violation of the law will mean that the group is not meeting the conditions set by the law per se.Footnote 155
4.2.1. In International Armed Conflicts
Traditionally, the law of occupation is defined as IHL norms applicable to a territory of one ‘high contracting party’ controlled by another: that is to say, its application was fairly limited to interstate conflicts.Footnote 156 However, one could foresee three situations that might trigger the applicability of Geneva Convention IV (and consequently Article 59): (i) national liberation wars covered by Additional Protocol I;Footnote 157 (ii) recognition of belligerency, which turns a prima facie NIAC into an IAC;Footnote 158 and (iii) when a prima facie internal conflict is classified as an international conflict based on the overall control a state exercises over the group.Footnote 159 This latter situation is also referred to as ‘occupation by proxy’.Footnote 160 While it is clear that Article 59 applies in the second and third situations, from both the legal and practical perspectives, this is much less evident with regard to the first situation.
The second and third scenarios, both prima facie NIAC, are internationalised based on a legal or factual structure. Hence, as a matter of application of Article 59, they will be considered together. Arguably, from a substantive point of view, there is no difficulty in applying to the said scenarios the obligations set by Article 59 of Geneva Convention IV. The armed groups in both scenarios exercise effective control over territory; as a matter of law, one of the conditions for an armed group to be recognised as belligerent is the level of control it exercises over a defined territory.Footnote 161 As to the scenario of occupation by proxy, addressed extensively by the ICTY, the group itself must exercise effective control over the territory, while the state exercises overall control over the group.Footnote 162 Hence, in both cases the armed group has effective capacity without conferring legitimacy or wholly changing its legal status.Footnote 163 Applying Article 59 to these scenarios fulfils the essential ideas behind the regulation of humanitarian assistance: ensuring an effective and unimpeded relief operation for the well-being of the civilian population as its primary goal. In this respect, the identity of the actual ‘player’ (an armed group) does not matter.
As for the first situation – national liberation wars falling within the scope of Additional Protocol I – the position might be somewhat different. It seems clear that relief operations in these cases are regulated solely by Article 70(1), which states that it applies to any cases of ‘territory under the control of a Party to the conflict, other than occupied territory’.Footnote 164 The Commentary to Article 70(1) seems to support such a limitation of applicability:Footnote 165
In fact, we are obviously concerned primarily here with the national territory of a State involved in a conflict. However, the article also covers the few territories in the world which still have special status, and, above all, territories under the control of movements fighting in conflicts such as those mentioned in Article 1.
Indeed, and as elaborated above, Article 70(1) was designed first and foremost to complement and fill the lacuna in Geneva Convention IV concerning the civilian population not of an occupied territory,Footnote 166 and primarily the nationals of a territorial state involved in a conflict.Footnote 167 It also limits the legal framework, ensuring that all territories controlled by any party to the conflict, except occupied territories, will be regulated by Article 70(1).
While Article 70(1) excludes occupied territory from its application, it does not exclude the applicability of the law of occupation in toto to Article 1(4) conflicts (national liberation wars).Footnote 168 Article 69(2) – which regulates access to humanitarian assistance in occupied territory and is intended to complement Geneva Convention IVFootnote 169 – does not limit its application to interstate situations. In other words, assuming that a territory could be defined as ‘occupied’ in the said scenario, Article 69(2) would be the applicable regime and not Article 70(1), regardless of the identity of the occupier. As the only situation currently recognised as a national liberation war (fulfilling the requirements of Article 1(4)) may be the conflict in western Sahara between the Polisario and the state of Morocco,Footnote 170 one could envisage that during hostilities either party may acquire control over territory and its inhabitants that were formerly seen as belonging to the other party. Can this situation be referred to as ‘occupied’? This article does not aim to address this question; rather, it establishes that the Article 59 regime is not excluded per se from conflicts falling under Additional Protocol I in which one party to the said conflict is an armed group.
Applying Article 59 to an IAC involving non-state armed groups will ensure the unconditional consent to relief schemes entering the territory controlled by the armed group. This obligation will be imposed on the armed group, the adverse state and other concerned third states or armed groups. On the other hand, paragraph 4 of Article 59, which provides the parties with certain safeguards, will also apply, providing the states and the armed groups with the right to ensure the humanitarian nature of the relief consignment passing through their territory.Footnote 171
4.2.2. In Non-International Armed Conflicts
Article 18(2) of Additional Protocol II literally and legally requires only the consent of the state to the relief scheme, although the consent of the armed group is necessary from a practical point of view. This is also relevant to situations covered only by Common Article 3 to the Geneva Conventions, involving solely non-state armed groups.Footnote 172 In order to understand how Article 59 might apply to NIAC, one needs to address two different issues: (i) whether legally there is any support for the fact that non-state armed groups should be taken into account as parties when organising humanitarian relief operations (and not as a practical action to ensure the protection of the consignment and personnel);Footnote 173 and (ii) whether and when Article 59, as a provision relative to occupied territories, should and could bind parties to a NIAC.
Unfortunately, and as addressed above, the feature of territorial control exercised by armed groups is somewhat neglected in the legal framework of IHL. Some have claimed that in certain situations these groups could be bound by IHL obligations, as they should be considered agents of necessity.Footnote 174 This legal concept is founded on Article 9 of the International Law Commission Articles on State Responsibility for International Wrongful Acts and its Commentary (2001).Footnote 175 Article 9 states:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.
The purpose of this article, however, is to ensure that such acts will be attributed to the state in question.Footnote 176 The Commentary specifically distinguishes this situation from cases of insurgency.Footnote 177 This is fairly clear, as the aim of the said Articles is to ensure that a state bears responsibility for acts performed on its behalf. It would be hard to argue that the acts of an armed group operating in a state's territory and against it are automatically attributable to the territorial state.
However, borrowing from the law of international responsibility, it has been argued, quite convincingly, that at least within the framework of IHL, once armed groups comply with the conditions provided in Article 9 above – exercising governmental authority and control of territory – they become addressees of international law.Footnote 178 Arguably, deciding on humanitarian assistance and relief schemes, as well as asking for outside assistance and deciding these issues, all reflect traditional governmental functions and the exercise of governmental authority.Footnote 179 In this respect, while armed groups will not possess sovereignty, they will be bound by the same rights and obligations within the regime of humanitarian assistance.Footnote 180 This suggests that there will be a legal obligation to ask for the consent of the armed group and, on the other hand, the armed group will be obliged not to withhold it arbitrarily.Footnote 181 Whether or not a legal obligation exists, it will be difficult in practice (almost impossible) to conduct a relief operation without securing the consent of the armed group.Footnote 182
We now turn to the second question addressing the applicability of the Article 59 regime to territories effectively controlled by armed groups, and its merits. As the law stands today, Article 59 does not apply to NIAC. However, the idea of ‘borrowing’ or cross-referencing provisions from the law of belligerent occupation to the position of territories controlled by armed groups has its merits, and is not as imaginary as one might think. As expressed by Sivakumaran, albeit the controversies, one should consider addressing the misrepresentation of territorial control by armed groups by referring to the law of occupation.Footnote 183 Such an approach has its practical advantages.Footnote 184 Furthermore, an armed group operating in a NIAC, meeting all of the IHL conditions of organisation and intensity, and which also exercises control over territory, resembles armed groups operating within the legal framework of an IAC (whether as proxy or after being recognised as belligerency). In this respect, it is hard to argue against the application mutatis mutandis of the minimum protection provided in Article 59 to ensure the well-being of civilians. In practice, the term ‘occupation’ has been used to refer to situations in which an armed group controls a territory during a NIAC, thus implying further international obligations.Footnote 185
The outcome is clear and extremely beneficial: an unconditional obligation on all parties to the conflict as well as other concerned parties (be it a state or an armed group) to allow access and the passage of humanitarian relief. This will ensure that in situations of NIAC the legal framework of relief operations and the obligations it entails will continue to be effective, practical, up to date and concerned primarily with protection of the victims. It will especially ensure that the civilian population living in cities affiliated with the adverse party are not starving to death because access to relief operations is refused by the state.
5. Conclusion
International humanitarian law should be more attentive to the role played by non-state armed groups and their features, as they too affect the civilian population. Recognising the functional capacity of non-state armed groups exercising control over territory and their effectiveness has many outcomes and encompasses many aspects at different levels from their administrative state-like governmental capacities to their obligations under human rights law.Footnote 186
Accepting, at least, that what concerns the basic humanitarian needs of the civilian population – that the principles of humanity and effectiveness supersede other general principles of law such as sovereignty – is a reflection of the spirit of this body of law and lessons learned from the past. To require all parties concerned in these territorial situations to unconditionally accept and permit access to humanitarian action is not only supported by these legal principles, but is rather a promise, an assurance, that political aspirations and interests will not diminish the rights and needs of victims of war. It is clear, therefore, that focusing solely on state obligations is insufficient; it neglects another important actor in the theatre of war.
