Introduction
From the objective and purpose of international humanitarian law (IHL), one may deduce that all parties to an armed conflict are under an obligation to ensure that the essential needs of the population in areas under their control are met.Footnote 1 Currently, it is particularly difficult to achieve this in the Sahel region of Africa, on account of factors that include a worsening of the humanitarian consequences of the armed conflicts in the region, the financial limitations of the region's countries, and logistical and geographical constraints. Climate change – the effects of which are being acutely felt in the Sahel – and the COVID-19 pandemic are exacerbating these difficulties.
States and armed groups must therefore allow neutral and impartial humanitarian actors to access areas where people are in need. However, the deteriorating security situation in the Sahel, together with the presence of large numbers of armed actors (State and non-State), is having a negative effect on basic public services for civilians, aid provision by humanitarian organizations, and the access and security of those organizations’ staff.
The presence of multiple armed actors has saturated the Sahel and poses a real challenge for States and humanitarians aiming to help the civilian population deal with the consequences of armed conflict in the region – the exponential increase in the number of internally displaced persons (IDPs) and refugees being the most glaring example. The needs of the population are growing, and yet the humanitarian space seems to be shrinking.
This situation has led States to take measures to protect their territories, people and property, such as declaring a state of emergency or requiring humanitarian organizations to accept armed escorts. These measures have made it more difficult to apply the rules of IHL relating to humanitarian access – namely, the obligation to protect and respect personnel and objects used in humanitarian relief operations, access by victims of armed conflict to such relief, and the freedom of movement of humanitarian personnel.
States in the Sahel region must therefore strike a balance between ensuring the protection of all those on their territory, on the one hand, and allowing free access for humanitarian aid, on the other. There is a need for pragmatic solutions that reconcile these two objectives.
This article seeks to show how the IHL rules governing humanitarian access apply in the context of the Sahel. From a description of the actors involved, we will see that there are a myriad of parties active in the region, including armed and security forces, non-State armed groups, and humanitarian and development agencies. This poses particular challenges regarding coordination between States and humanitarian organizations. We shall then describe the humanitarian situation in the region and review the legal regime relating to humanitarian access. Finally, we shall see that the legal responses of States can sometimes impede access and sometimes facilitate it, thus demonstrating the tensions and dilemmas that must be resolved regarding the preservation of security and the provision of humanitarian assistance to everyone in need.
The multiplicity of armed actors in the Sahel
States have reacted to the proliferation of armed groupsFootnote 2 in the SahelFootnote 3 over the past decade by setting up military groupings to pool their forces and respond to the new security threat. The two main military groupings are the Multinational Joint Task Force, based on the armed forces of the States bordering the Lake Chad Basin,Footnote 4 and the G5 Sahel Joint Force,Footnote 5 composed of five Sahelian States. France has launched Operation Barkhane, with the aim of supporting the armed forces of the countries of the Sahel-Saharan strip and strengthening the coordination of international military resources.Footnote 6 Operation Barkhane and the G5 Sahel Joint Force have set up a joint command centre to further the latter aim.Footnote 7 In a political declaration dated 27 March 2020, a number of European States created the Takuba Task Force, composed of special forces personnel, which was to be placed under the command of the operational commander of Operation Barkhane.Footnote 8 This increased European military presence and closer coordination with the G5 Sahel Joint Force was decided at the Pau Summit,Footnote 9 held on 13 January 2020, which brought together the heads of State of the G5 Sahel member countries plus France. This summit also led to the establishment of the Sahel Coalition, which aims to strengthen strategic and political cooperation in the region between all European Union (EU) member States and those of the G5 Sahel.Footnote 10 Other political alliances have emerged to contribute to the stabilization and development of the Sahel region, including the Sahel Alliance and the Security and Stability Partnership in the Sahel.Footnote 11
The United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), established by United Nations (UN) Security Council Resolution 2100, has been operating in the country since 2013.Footnote 12 MINUSMA is supporting the G5 Sahel Joint Force by providing logistical and financial support in several areas.Footnote 13 European States and the United States also have national contingents in the Sahelian States; the role of these contingents is to provide training and equipment to the defence and security forces of the region's countries.Footnote 14 The EU has three military and security cooperation missions, two in Mali and one in Niger.Footnote 15 Their mandate is to enhance the capacity of the armed and security forces of these two countries and the G5 Sahel Joint Force. Some authors have used the expression “security bottleneck”Footnote 16 to describe the proliferation of foreign armed and security forces in the Sahel. In 2019 there were 35,823 military, police and civilian personnel participating in national and multinational external and counterterrorism operations in the Sahel and Lake Chad region, according to the Stockholm International Peace Research Institute (SIPRI).Footnote 17 At the end of 2020, the possibility of deploying the Economic Community of West African States (ECOWAS) Stand-By Force to the Sahel had been under consideration for several months.Footnote 18
The proliferation of armed groups in the Sahel is linked to several factors, such as the struggles of independence movements in northern Mali and the situation in Libya. But there is also the interaction between these factors and other complex phenomena such as tensions between nomadic herding communities and sedentary farmers, particularly in the tri-border region between Burkina Faso, Mali and Niger.Footnote 19 Some of these groups are calling for an independent Tuareg State in northern Mali, while others are more influenced by pan-Islamic movements and claim to be part of either Al-Qaeda or the so-called Islamic State group.Footnote 20 Such groups include the National Movement for the Liberation of Azawad, the Movement for the Salvation of Azawad, the Imghad Tuareg Self-Defence Group and Allies, the Movement for Oneness and Jihad in West Africa, Ansar Dine, the Support Group for Islam and Muslims, Al-Qaeda in the Islamic Maghreb, Islamic State in the Greater Sahara, and Ansar ul Islam.Footnote 21 Various splinter groups from the Group of the People of Sunnah for Preaching and JihadFootnote 22 are operating or exercising an influence in the Sahelian part of the Lake Chad Basin region.
Armed conflicts in the central Sahel and the Sahelian part of the Lake Chad region involve protracted fighting between States and armed groups and are usually regional.Footnote 23 These conflicts are taking place on the territories of multiple States, which are fighting those groups – generally together.Footnote 24 Some armed conflicts involve armed groups fighting each other. These armed groups may also join forces to fight against certain States or other armed groups and hence satisfy the criteria for non-international armed conflicts regarding intensity of violence.Footnote 25 Such groups have demonstrated their ability to organize themselves and to conduct military operations on the territories of several States at once. Thus, these conflicts all meet the criteria set out in international law for non-international armed conflicts – that armed groups be sufficiently organized and that they engage in protracted confrontations that reach a minimum threshold of intensity, either against States or among themselves.Footnote 26
The participation of State and non-State actors in acts of collective violence, or their mere presence in the Sahel, does not automatically make them a party to an armed conflict. To conclude that a non-international armed conflict exists, one must verify in each case that the above two conditions posed by IHL are satisfied. The International Committee of the Red Cross (ICRC) carries out this exercise, analyzing each situation of violence on a case-by-case basis. This allows it to identify the legal basis on which it will base its efforts to protect and assist those in need of its humanitarian action. The ICRC communicates its assessment of the situation bilaterally and confidentially to the parties to the conflict, but it may also decide not to do so, if that would be in the interests of the victims of a conflict.Footnote 27 Finally, the organization may decide to communicate publicly on a particular situation.Footnote 28
The humanitarian situation in the Sahel
Armed conflicts have severely affected civilians in certain countries of the Sahel. A Ministerial Roundtable on the Central Sahel, held in Copenhagen on 20 October 2020 and organized by Denmark, Germany, the EU and the UN, concluded that
Africa's Central Sahel is among the world's fastest growing humanitarian crises. The scale and severity of humanitarian needs in the three countries are unprecedented, with 13.4 million people affected by forced displacement, food insecurity and reduced access to essential basic services.Footnote 29
The UN Office for the Coordination of Humanitarian Affairs (OCHA) estimated that the number of IDPs in the Central Sahel region rose from 70,000 to 1.6 million between 2018 and 2020.Footnote 30 Food insecurity was affecting 7.4 million.Footnote 31 The worsening situation of the civilian population was also having a major impact in the Sahelian part of the Lake Chad Basin region, where some 2.7 million people had fled their homes, including 2.4 million IDPs and 292,000 Nigerian refugees.Footnote 32 These population displacements were closely linked to increased hostilities between armed groups and between armed groups and State armed and security forces. These armed conflicts are said to have claimed the lives of several thousand people among the defence and security forces, armed groups and the civilian population.Footnote 33 According to the UN Office for West Africa and the Sahel, more than 4,000 deaths from violence were reported in 2019, up from 770 deaths in 2016.Footnote 34 At least 4,660 people died in the Central Sahel during the first half of 2020, according to an estimate by the Armed Conflict Location and Event Data Project.Footnote 35
One of the many consequences of the increase in violence is that access to education for children has been severely affected. For example, attacks on schools and teachers are reported to have resulted in the closure of more than 4,000 schools in the Central Sahel between 2016 and 2020.Footnote 36 Children are also subject to recruitment by armed actors.Footnote 37
In addition to the humanitarian consequences of armed conflict, the Sahel is experiencing the effects of climate change, forming what the ICRC has described as an “explosive mix”.Footnote 38 In a 2020 report addressing the combined effects of armed conflict, climate and environmental crisis, the ICRC concluded that “[c]ountries in situations of armed conflict are disproportionately affected by climate variability and extremes. This is in part because of their geographical location, but mostly because conflicts and their consequences limit the adaptive capacity of people, systems and institutions.”Footnote 39
The civilian populations of the Sahel region are suffering from the consequences and cumulative effects of armed conflict and climate change, the latter being particularly pronounced in that region, with temperatures rising one and a half times faster than in the rest of the world.Footnote 40 Apart from the direct links between climate change and armed conflict, other forms of confrontation also have an impact on the natural environment. Tensions have been noted in the Sahel between different communities, especially sedentary farmers and nomadic herders, regarding the use of land.Footnote 41 The arrival of the COVID-19 pandemic in March 2020 exacerbated this already very difficult situation, resulting in a “triple crisis”.Footnote 42
The legal framework applicable to humanitarian access in non-international armed conflicts
The above description of the effects of non-international armed conflicts in the Sahel shows the need to provide humanitarian aid for the victims of these conflicts and for the civilian population in general.Footnote 43 The rules of IHL relating to humanitarian assistance and humanitarian access in this type of armed conflict are therefore applicable. Although IHL contains no explicit, specific provisions regarding the obligation to ensure the well-being of the population, except in situations of occupation,Footnote 44 the ICRC considers that the obligation to meet the basic needs of the population can be inferred from the object and purpose of IHL.Footnote 45 In addition, many treaty and customary provisions refer to specific obligations on all parties to a conflict – both States and armed groups – to respond to the need for humanitarian assistance and to provide relief to the victims of such conflicts, including the wounded, the sick, detainees and the affected population in general.Footnote 46 If parties to an armed conflict are materially unable to provide the required assistance, then they must consider in good faith offers of services made by impartial humanitarian organizations and allow those organizations access to the persons concerned.Footnote 47
In non-international armed conflicts, Article 3 common to the four Geneva Conventions provides that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict”. According to the ICRC's 2016 Commentary on common Article 3, an organization qualifies as impartial if it offers humanitarian services without adverse distinction based on gender, race, nationality, religion or opinion. The only possible distinction is that of giving priority to the most urgent cases of distress.Footnote 48 The humanitarian services in question include protection and assistance activities that seek to “preserve the life, security, dignity and physical and mental well-being of persons affected by the conflict, or that seek to restore that well-being if it has been infringed upon”.Footnote 49 Apart from impartiality, which is specifically mentioned in common Article 3, the ICRC attaches great importance to its action being guided by the principles of humanity, neutrality and independence, which are at the heart of its missionFootnote 50 and are among the Fundamental Principles of the International Red Cross and Red Crescent Movement (the Movement).Footnote 51
Examining an offer of services in good faith implies that a State may not refuse consent on arbitrary grounds. A refusal of services would be arbitrary if the State concerned were unwilling or unable to address basic humanitarian needs.Footnote 52 This is a major development in the right to humanitarian assistance, reflected in the new Commentaries on the Geneva Conventions.Footnote 53
Once an offer of services has been accepted, States must facilitate the passage of humanitarian personnel and relief goods, and the freedom of movement of humanitarian workers, while retaining a right of control and the possibility of restricting such passage in cases of imperative military necessity.Footnote 54 Taking account of imperative military necessity implies that relief operations should not interfere with military operations, “lest the safety of humanitarian relief personnel be endangered”.Footnote 55 However, any restriction based on military necessity can only be limited and temporary.Footnote 56
Other obligations related to respect for international human rights law underpin the right to humanitarian assistance and the correlative obligation of States to undertake concrete responses. This is the case with regard to the right to life, which is not subject to any derogation, even in times of armed conflict,Footnote 57 and which includes “the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity”.Footnote 58 States are even subject to a “heightened duty” to protect the right to life in liberty-restricting State-run facilities, including refugee and IDP camps.Footnote 59 They must make every effort to ensure that the basic needs of affected people are met, including the right to adequate food.Footnote 60 The Committee on Economic, Social and Cultural Rights has stated that “[v]iolations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include … the prevention of access to humanitarian food aid in internal conflicts or other emergency situations.”Footnote 61 It has been recognized that “forcibly displaced persons need access to water and sanitation … for their survival, but also to be able to live in dignity”.Footnote 62 The right to health care is also protected by both IHL and international human rights law, in a complementary manner.Footnote 63
The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) sets out the scope of humanitarian assistance.Footnote 64 Such assistance must include water, shelter, medical care, sanitation, education and any other necessary social services. The Convention specifies that this assistance may be extended to local and host communities.Footnote 65 It also makes specific provisions for assistance to be provided to people with special needs, including separated and unaccompanied children, women, the elderly, people with disabilities and those with communicable diseases.Footnote 66 States Parties must also take special measures to address the reproductive and sexual health of displaced women and provide appropriate psychosocial support to victims of sexual abuse.Footnote 67 To facilitate implementation of the Convention, the African Union has adopted a model law that specifies the scope of States’ obligations regarding humanitarian assistance.Footnote 68
However, State services responsible for humanitarian aid, local administrations and humanitarian organizations operating in the Sahel are encountering difficulties in carrying out their activities in accordance with the rules on humanitarian access outlined above. These difficulties stem from the many obstacles and challenges in the region. The areas where people in need are located are often difficult to reach because of their remoteness, the quality of the roads, the climatic conditions or the lack of security. Furthermore, the States of the Sahel region are in a situation of development and poverty that limits their ability to provide sufficient humanitarian aid to these populations, which are in dire need.Footnote 69
State measures that may impede access to humanitarian assistance in the Sahel
One of the greatest dilemmas facing States in the Sahel region today is how to ensure the security of their territory and the people within it, while at the same time guaranteeing access to the national and international humanitarian organizations which they have authorized to operate there. State authorities must also protect those organizations. States are required to respond to the needs of affected populations but do not always have the means to do so. Furthermore, they must protect organizations bringing relief to these populationsFootnote 70 while at the same time facilitating their access to the areas where the civilian population is located.Footnote 71
Resolving this dilemma is not easy, as both government aid agencies and humanitarian organizations have been subject to attacks that have endangered their operations in the Sahel region or rendered those operations impossible. In Mali, for example, MINUSMA reported that the number of attacks on humanitarian organizations has increased exponentially, making the delivery of humanitarian assistance difficult.Footnote 72 In other countries in the region, members of humanitarian organizations have been abducted or murdered,Footnote 73 while these organizations’ facilities have also been attackedFootnote 74 and their vehicles seized, with the risk of armed actors using them for military purposes.Footnote 75
Faced with the worsening security situation in the Sahel, States have taken a number of steps to try to mitigate the situation. We shall examine two of these here: the declaration of a state of emergency and the imposition of armed escorts on humanitarian missions. These measures are relevant to the present analysis as they may restrict the access of the civilian population to humanitarian assistance and the ability of humanitarian organizations to provide it.
State of emergency
One way to limit the risks to the population is to declare a state of emergency in certain areas. By declaring a state of emergency, States limit the exercise of freedoms and give themselves greater powers of control. Certain States have also recently declared a state of emergency with the aim of limiting the spread of COVID-19. Security and health factors therefore overlap and can make it more difficult for the people affected to obtain goods and services.
For example, certain Sahelian countries have had to declare a state of emergency in the regions most affected by armed conflicts, which then allows them to take concrete measures that restrict the freedom of movement of people and goods.Footnote 76 Restrictions on freedom of movement have the most direct impact on humanitarian assistance, as they may put large areas out of reach of humanitarian agencies and government services. For instance, prohibiting the use of motorcycles – which are often the only means of transport – can make it very difficult to obtain basic necessities, sell agricultural products on markets or obtain health care. This measure has been taken to reduce the operational capacity of armed groups that use motorcycle attacks, especially in border areas. Other examples include closing markets or prohibiting the sale of certain products, such as fish or chili peppers, as armed groups are using the profits from these ventures to fund their activities.Footnote 77
The UN Human Rights Committee and the UN Committee Against Torture have highlighted the negative effects of prolonged movement restrictions in the Sahel.Footnote 78 The COVID-19 pandemic has forced Sahelian States to impose additional restrictions on movement, making it even more difficult to provide basic services. However, these States have made exceptions for the activities of humanitarian organizations.Footnote 79 States of emergency and exceptional measures related to the fight against COVID-19 that restrict certain rights, such as the right to freedom of movement, must not endanger the full application of IHL or the right to humanitarian access in order to bring relief to the victims of armed conflict.Footnote 80
The Human Rights Committee has specified that in order for a State to make use of the derogations permitted under a state of emergency, two conditions must be satisfied: the situation “must amount to a public emergency which threatens the life of the nation”, and “the State party must have officially proclaimed a state of emergency”.Footnote 81 Derogation from certain human rights through the declaration of a state of emergency as provided for under the International Covenant on Civil and Political Rights (ICCPR) must also be proportional, and strictly limited to the situation that underlies it. In addition, its duration and geographic scope must be specified. The Human Rights Committee has also noted that the ICCPR requires that “no measure derogating from the provisions of the Covenant may be inconsistent with the State party's other obligations under international law, particularly the rules of international humanitarian law”.Footnote 82 Furthermore, the Committee has pointed out that during armed conflict, the rules of IHL help to prevent the abuse of a State's emergency powers and that States may in no circumstances invoke Article 4 of the ICCPR as justification for acting in violation of humanitarian law.Footnote 83 The Committee has therefore recognized that IHL continues to apply and can harmoniously complement the derogated rules of international human rights law. It has been recognized that “[c]omplementarity and mutual influence inform the interaction between international humanitarian law and international human rights law in most cases”.Footnote 84 Indeed, unlike international human rights law, “unless expressly foreseen in the relevant treaty provisions, the rules and principles of IHL cannot be derogated from”.Footnote 85 It therefore follows that if States justifiably use a state of emergency to suspend freedom of movement in part of their territory in order to respond to the dangers caused by armed conflict, this suspension should not jeopardize the provision of humanitarian assistance and the related freedom of movement of humanitarian personnel, or impede it through the imposition of armed escorts.
Armed escorts
In response to the dangers and serious incidents that humanitarian organizations have experienced in the field, the States of the Sahel region have taken administrative measures to ensure their security, such as armed escorts.Footnote 86 The imposition of armed escorts on humanitarian actors often provokes contrasting reactions among them. Some organizations may agree to use them under certain conditions, while others refuse them outright. The Inter-Agency Standing Committee (IASC), for example, has produced non-binding guidelines on the use of armed escorts during humanitarian operations which state that “[a]s a general rule, humanitarian convoys will not use armed escorts”.Footnote 87 It is worth recalling some of the arguments that have been put forward to show why the use of armed escorts provided by the State – and which are therefore composed, more often than not, of elements of the armed and security forces – seems to have more disadvantages than advantages for impartial humanitarian organizations.
The ICRC and the International Federation of Red Cross and Red Crescent Societies (IFRC), during a workshop on the use of armed protection and humanitarian assistance, identified as a general principle that the use of armed protection conflicts with the principles of humanity, independence, impartiality and neutrality. On the basis of this, they concluded that as a rule, the components of the Movement should not use armed escorts.Footnote 88 This prohibition was confirmed by Resolution 9 of the 1995 Council of Delegates of the International Red Cross and Red Crescent Movement, which reiterates “the basic principle that the components of the Movement do not use armed protection”.Footnote 89 This was reaffirmed at the 2005 Council of Delegates in Seoul.Footnote 90
Respect for a neutral, impartial and independent humanitarian space is essential if the ICRC and the Movement are to carry out their humanitarian mission. The Fundamental Principle of neutrality states that “the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature”.Footnote 91 Neutrality is a means to an end, not an end in itself. It is a tool used to ensure access for concrete action in all situations.Footnote 92 This concrete action must be guided by the Fundamental Principle of humanity, which aims to “prevent and alleviate human suffering wherever it may be found” and “to protect life and health and to ensure respect for the human being”,Footnote 93 and by that of impartiality, which prohibits any form of discrimination in the provision of humanitarian assistance and, as we have seen, implies the prioritization of the most urgent needs. For the ICRC, the Fundamental Principle of independence implies that its humanitarian action is distinct, and perceived as such, from any political or military interest.Footnote 94
On the basis of these Fundamental Principles, therefore, the ICRC must respect, but also ensure respect for, humanitarian space in the Sahel.Footnote 95 To properly carry out its strictly humanitarian mission, it must be able to maintain a bilateral and confidential dialogue with all parties involved in armed conflicts, whether they be States or non-State armed groups. To do so it must have unhindered access, both so that it can provide protection and assistance to the victims of armed conflicts and so that it can conduct prevention activities, reminding the parties to armed conflicts of their obligations under IHL. In a statement on humanitarian space in the Sahel, the ICRC pointed out that influencing parties to armed conflict in such a way that they fulfil their obligations and respect humanitarian space is a never-ending task:
To constantly seek influence with the parties to the conflict or their supporters, to use persuasion to convince each side to guarantee humanitarian space, to constantly remind them of the obligation to ‘respect and ensure respect for’ international humanitarian law ‘in all circumstances’ … these are the tasks – sometimes Sisyphean – that the ICRC must accomplish wherever there are victims.Footnote 96
The imposition of armed escorts on humanitarian missions in the field does not therefore appear compatible with the principles that should guide humanitarian action. It also seems difficult to reconcile such a measure with the obligation to respect and protect humanitarian personnel and relief objects, as provided for in customary IHL.Footnote 97 The respect and protection due to humanitarian personnel and relief objects does not mean that an armed escort must be provided. The notion of protection and respect for humanitarian personnel in Rule 31 of the ICRC Customary Law Study is linked to the practice of States party to Additional Protocol I to the Geneva Conventions and Article 71 of that Protocol, on personnel participating in relief actions. The ICRC's Commentary on Article 71 leaves the decision as to whether or not a humanitarian mission should be provided with an armed escort to the discretion of those who might benefit from it.Footnote 98
Apart from the incompatibility between humanitarian action according to the Movement's Fundamental Principles and armed protection, some organizations have put forward other arguments. In particular, the fact that armed forces come under attack during a conflict means that their presence may expose members of humanitarian missions to unnecessary danger, rather than protect them.Footnote 99 In the specific context of the Sahel, several humanitarian organizations that participated in the preparatory work for the Virtual Ministerial Roundtable on the Central Sahel recommended that the States of the region “explicitly commit to not forcing humanitarians to use armed escorts and to respect the principle of ‘last resort’ as defined within the Humanitarian Coordination bodies in accordance with humanitarian principles and in particular neutrality and independence”.Footnote 100
Two factors must be reconciled: the obligation to protect relief personnel and the assets needed to provide assistance, on the one hand, and unhindered access by relief personnel to areas where civilians affected by armed conflict are located, on the other. To see how this might be achieved, we need to review the initiatives that the States of the Sahel region have taken.
Measures to facilitate humanitarian access in the Sahel
Action is being taken to ensure better coordination between State authorities and humanitarians in the interests of improved access. Furthermore, legislative measures have been taken to support humanitarian access.
Dialogue on humanitarian access between civilian and military authorities and impartial humanitarian organizations
Open dialogue and coordination between all involved in protecting and helping the victims of armed conflict are necessary to ensure quality humanitarian access and to meet the needs of the civilian population. This is all the more crucial in the Sahel, where there is not only a wide variety of arms bearers but also a wide variety of humanitarian organizations.Footnote 101 It is therefore important to identify the dialogue mechanisms that are used in the Sahel to constructively discuss issues related to humanitarian access on the ground. One should note the important role of civil–military dialogue mechanisms that bring together the humanitarian country teams – composed of UN humanitarian agencies and non-governmental humanitarian organizations – and the national and foreign military forces involved. These fora allow an exchange of views on the mandates of humanitarian organizations, the nature of their operations and their priority areas of intervention. The military forces explain their operational situation on the ground, which then makes it possible to identify geographic areas where access could prove problematic for security reasons.Footnote 102
However, the issue of humanitarian access as such remains the exclusive competence of each State, and the civil–military coordination meetings are primarily fora for the exchange of information, with no decision-making powers. Furthermore, the rules of IHL relating to humanitarian access in the field allow the parties to an armed conflict to temporarily restrict the freedom of movement of humanitarian relief personnel in the event of imperative military necessity, and they retain the right to verify the content and destination of relief supplies.Footnote 103
The prime minister of Niger has set up a high-level committee on access to advance dialogue and decision-making in this area. Its members consist of the relevant ministries and the humanitarian country team,Footnote 104 and high-level dialogue on humanitarian access has already taken place within this framework.Footnote 105 It would be useful for the other Sahel States to follow this example. Such a body should be the primary forum in which all concerned can establish clear rules on humanitarian access. In particular, this would include national civilian and military authorities, the UN system, impartial humanitarian non-governmental organizations and the various components of the Movement. Dialogue at the national level must be accompanied by dialogue at the regional and local levels, as local civilian and military authorities and humanitarian organizations have much more detailed knowledge of the security environment – which is most often dynamic and changing – and of the humanitarian assistance needs of the population.
One must draw a distinction between mechanisms for dialogue between humanitarian organizations and armed forces, on the one hand, and civil–military action conducted by the armed forces in parallel with their combat activities, on the other. Operation Barkhane carries out a variety of activities in this area, such as renovating schools, donating school equipment and supporting improvements to health centre infrastructure.Footnote 106 Similarly, MINUSMA is running quick-impact projects to improve access to basic health services and water, the use of pastoral and agricultural resources and the economic resilience of conflict-affected households.Footnote 107 These activities are in every way similar to those that impartial humanitarian organizations may carry out. During the Ministerial Roundtable on the Central Sahel held on 20 October 2020, humanitarian organizations – which engage in dialogue with the armed forces through the coordination mechanisms just described – emphasized the importance of their not taking part in these civil–military activities. They explained that there was a risk of confusion between the mandates of humanitarians and the military, fuelled by the existence of these activities. They also reiterated that in order to maintain the distinction between humanitarian and military actors, it was crucial for the former not to be associated with the latter and to avoid using the infrastructure, equipment or escorts of security or military actors.Footnote 108 It has also been pointed out very clearly that the “blending of aid work with military goals can put at risk humanitarian actors, who, in the eyes of insurgents are seen to be in cahoots with the ‘invading’ foreign military powers”.Footnote 109
Legislative measures to facilitate humanitarian access
One of the best ways to ensure compliance with IHL rules on humanitarian access is to take national measures to ensure their implementation. It is interesting to note that the Kampala Convention has established humanitarian access for IDPs and host populations as a general obligation of States Parties.Footnote 110 In particular, States must allow the rapid and unimpeded passage of all relief consignments, equipment and personnel to IDPs.Footnote 111 The Convention also establishes clear obligations on armed groups by prohibiting them from “[h]ampering the provision of protection and assistance to internally displaced persons under any circumstances” and from “[i]mpeding humanitarian assistance and passage of all relief consignments, equipment and personnel to internally displaced persons”.Footnote 112 Further, the Kampala Convention calls on States to take legislative measures to give effect to the Convention in their domestic systems.Footnote 113
In the particular context of the Sahel, Niger was the first State to adopt a specific law to implement the obligations of the Kampala Convention, thereby creating a domestic legal regime for humanitarian access. Law No. 2018-74 on the Protection and Assistance of Internally Displaced Persons sets out a number of specific provisions related to access. Article 22 of the law provides that
[w]ithin the framework of international cooperation, the State ensures unimpeded and rapid access of humanitarian personnel to internally displaced persons. The State ensures that humanitarian aid is not diverted. It ensures respect for and protection of humanitarian personnel, means of transport, objects and any products necessary for humanitarian assistance” (author's translation).
To strengthen protection for humanitarian personnel and to guarantee that they have access to victims, the law also sets out criminal sanctions for attacking humanitarian personnel and for obstructing the unimpeded passage of humanitarian aid or its rapid and unimpeded distribution to IDPs.Footnote 114 Article 26 of the law created an institutional framework to ensure its implementation, in particular a Comité de Coordination Nationale de Protection et d'Assistance aux Personnes Déplacées Internes, which brings together the relevant ministries and national and international humanitarian agencies.
The development of national legal frameworks for humanitarian access should be an opportunity to address and clarify the thorny issue of the relationship between humanitarian access rules and national counterterrorism legislation. It is not uncommon for impartial humanitarian organizations to have to negotiate humanitarian access to the civilian population not only with States, but also with organized armed groups. They must be able to engage in dialogue with these groups on respect for IHL and the humanitarian situation of the civilian population, without suffering legal consequences under national legislation on the fight against terrorism. In a report to the International Conference of the Red Cross and Red Crescent in 2019, the ICRC pointed out that “[i]n legal terms, counterterrorism measures impeding principled humanitarian action are incompatible with the letter and spirit of IHL”.Footnote 115 During the preparatory work for the Ministerial Roundtable on the Central Sahel, several humanitarian organizations operating in the Sahel expressed the need for national legal frameworks to make it clear that the action they undertake in accordance with the principles of neutrality, impartiality and independence do not fall under national provisions on terrorism. They noted that “[t]he space for dialogue on humanitarian access with all parties to the conflict, although clarified by IHL, lacks clarity within national law”.Footnote 116
One solution that preserves both the legitimate right of States to take counterterrorism measures and the access of impartial humanitarian organizations is the use of humanitarian exemptions. Their purpose is to “exclude from the scope of application of counterterrorism measures exclusively humanitarian activities undertaken by impartial humanitarian organizations such as the ICRC”.Footnote 117 Chad has already embarked on this path; the 2018 Law on the Repression of Acts of Terrorism in the Republic of Chad states in its Article 1(3) that “no provision of this law may be interpreted as derogating from international humanitarian law and international human rights law”. Article 1(4) stipulates that “activities of an exclusively humanitarian and impartial nature carried out by neutral and impartial humanitarian organizations are excluded from the scope of this law”.Footnote 118 Other States in the Sahel region should be inspired by these initiatives to clarify the legal framework for humanitarian access.
Conclusion
This article has shown that while the rules of IHL on humanitarian access are clear, implementing them at the national level is challenging in the particular context of the Sahel. States must strike a balance between preserving security and ensuring that people have access to goods and services that enable the full enjoyment of their rights. Excessive firmness in the application of movement restrictions could deprive the population of goods essential to their survival. On the other hand, excessive inertia could endanger the lives of humanitarian workers and the civilian population.
In the face of armed conflict, the Sahel States must find pragmatic solutions to the dilemmas posed by legitimate security considerations: the protection of all, the work of impartial humanitarian organizations and the ever-increasing needs of a civilian population suffering the effects of armed conflict. States may be torn between all of these elements and take measures that either facilitate humanitarian access or impede it.
Experience shows that strong coordination mechanisms involving State, military and civilian authorities and impartial humanitarian organizations can foster productive dialogue on humanitarian access. This dialogue must be constant and must remain as close as possible to the realities on the ground and to situations in the Sahel, which are never static but are rather in a constant state of flux. For example, it is important to avoid banning access to certain areas indefinitely when the situation may have changed and the factors that fully justified a ban may have disappeared. Dialogue on coordination must lead to the establishment of a clear and precise system for notifying the movements of humanitarian organizations in the field. This system must enable humanitarian organizations to enter their areas of operation with up-to-date and reliable information on the security situation. Humanitarian organizations must communicate openly on the objectives of their operations in the field, their mandates, the complementarity between them and their respect for the principles of humanity, impartiality, neutrality and independence, in order to ensure that the authorities clearly understand the services they are offering.
Developing national legal frameworks for humanitarian access will help States fulfil their obligations under IHL and provide humanitarian actors with clear guidelines. By adopting the Kampala Convention, the States of Africa have helped strengthen IHL as it applies to respect for and protection of humanitarian organizations and humanitarian access. The laws of Chad and Niger presented here are valuable tools that will help to promote improved humanitarian access and hence promote respect for a neutral, impartial and independent humanitarian space.
