The Committee would invite written evidence addressing some or all of the following questions:

What are the current trends in adherence to international humanitarian law in conflicts, particularly regarding the

safe delivery of humanitarian assistance?

Adherence has never been high, at least in the case of non-international armed conflicts or complex hybrid ones – only about 10% of aid deliveries arriving in Split in the war in the former Yugoslavia reached their intended destination. The threat to the lives of humanitarian aid workers has grown and that needs to be addressed as a distinct problem.

To start with the humanitarian aid question, the international law does not set out an obligation to permit unhindered access: Article 18 of Additional Protocol 2, 1977, to the 1949 Geneva Conventions, appliable in non-international armed conflicts (mirroring in this regard Article 70 of Additional Protocol 1, 1977, applicable in international armed conflicts) sets out that “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” (emphasis added). As such, the High Contracting Party, a state, can stop and search any delivery it wishes, to the extent of emptying refrigerated lorries in the middle of a hot summer and putting the food and medicines on the side of the road while they ensure the delivery’s “exclusively humanitarian and impartial nature”. While there is no international duty to obtain anything other than the state’s clearance, of course non-state armed groups (NSAGs) will in practice need to provide clearance, too, since they will undoubtedly control swathes of territory through which the aid will need to pass. With the Ukraine war, Russia and Ukraine would need to comply with Article 70 AP1 (it reflects customary international law according to the ICRC), but with most other armed conflicts that are non-international or hybrid in character, Article 18 is applicable and again reflects customary international law – the current conflicts in Sudan, the DRC, Gaza, and Yemen.

To the extent there are internally displaced persons affected by the humanitarian crisis, which is the norm, then the Guiding Principle on Internal Displacement, 1998, (GPIDs) apply. The GPIDs set out that they are based on and are consistent with international human rights and humanitarian law and although that might not be wholly accurate, since 1998 they have come to be recognised as reflecting customary international law. Principle 25.3 provides that “All authorities concerned shall grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced”; Para.3 of the Introduction & Scope sets out that the GPIDs provide guidance to states and “all other authorities, groups and persons in their relations with internally displaced persons”, and that would include NSAGs (in Africa, there is also the Kampala Convention that is a binding treaty for states parties). While P25.3 seems to grant free passage without any interference, it is at best only customary international law and difficult to enforce. That said, HMG could definitely assert this obligation alongside AP1 and 2 in its public statements.

Finally, the humanitarian principles, adopted by the General Assembly, hold that humanitarian agencies should be, inter alia, neutral and impartial, and thus all parties to any humanitarian crisis should treat them as such and grant them access to carry out their mandates, especially the ICRC and UNHCR and any partner agencies in the humanitarian zone. Humanitarian workers are civilians and should not be targeted – parties to any conflict should take measures to ensure their safety (AP2, Articles 9-14, as well as Article 18; AP1 (which reflects customary international law in this context), Articles 50-54, 57, 58, 69-71). However, enforcement is difficult. Under the Rome Statute of the International Criminal Court, Article 8 deals with war crimes. As stated, humanitarian workers are civilians and fall within the crimes listed that are designed to prevent civilians from attack, but Article 8.2(b)(iii) (international armed conflicts) and (e)(iii) (non-international armed conflicts) specifically set out that it is a war crime to:

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.

On the other hand, the jurisdiction of the ICC  is complicated and requires either that the person committing the crime is a national of a state party or that the conflict is taking place on the territory of a state party and then that the situation is referred to the ICC by the Security Council, a state party, or that the Prosecutor acts proprio motu because evidence is presented to her/him (see below). And that is before the problems with obtaining the presence of the accused in The Hague is overcome. See further comments below.

What is the FCDO’s record of using its diplomatic levers to promote access to aid, protection of aid workers? How

might its approach be improved?

I have no knowledge of the FCDO’s record, but it could ensure that evidence it obtains that indicates crimes on a systematic level against humanitarian workers is handed over to the Office of the Prosecutor of the ICC so that s/he can decide whether to act proprio motu or even decide to refer a situation under Articles 12, 13 and 14 of the Rome Statute if it feels strongly that the ICC is the appropriate forum for criminal prosecutions. I believe the latter to be highly unlikely, but handing over evidence should be seen as part of its obligations under the Geneva Conventions and Additional Protocols to uphold the laws of war.

How has the level of risk for aid workers changed in recent years and where does responsibility for their protection

lie? What protections are available and are they adequate?

States are responsible for the human rights of everyone within their territory and jurisdiction, and that includes aid workers. Part of ensuring human rights is that individuals who commit crimes that are part of the context of human rights violations are prosecuted for those crimes (Osman v United Kingdom, European Court of Human Rights). As such, states receiving aid should have laws in place to prosecute those preventing the proper distribution of aid and/or mistreating humanitarian aid workers.

How could UK ODA funding be made more relevant and accessible to support protection of workers, both local and international?

As part of the due diligence of the United Kingdom, it should see which regional and international human rights law treaties have been ratified by the recipient state and whether it is a party to the Rome Statute. However, more significant and as part of its rule of law assessment, checking whether there are national laws in place to allow for prosecutions of those committing war crimes and that these prosecutions take place before independent courts that are impartial – the Rome Statute is important, but most prosecutions of war criminals will always be before national courts. Equally, rule of law gives national ownership to enforce the laws of armed conflict in line with the Geneva Conventions, too.

Are the levels of support, including psychological support, for those affected by trauma in the delivery of ODA

adequate and how could the Government better enable provision of these services?

They cannot be adequate because one could always do more, but it would be good to see that the relevant international organizations have policies and procedures that reflect HMG’s concerns. Such services should be present in the country facing the humanitarian crisis because the majority of aid workers will be nationals, but there should also be headquarters-level trauma services for international staff and to make certain that the organisation as a whole across all of its operations is maintaining this support.

What are the gaps in international humanitarian law when it comes to humanitarian access and what could be the

UK Government’s role in addressing this?

AP1 Article 70 and AP2 Article 18 are probably as strong as one could expect, but the UK government could think of convening a 50th anniversary meeting of relevant actors to consider how they should be understood in the light of developments in the laws of armed conflict, but also international human rights law and international criminal law in the intervening period. Actors live in ‘silos’ and there is a need to bring together the diverse range of those working in the field to see how the various frameworks, legal and non-legal, might have advanced our understanding – do developments in international human rights law and the law pertaining to forced displacement mean that the permitted intervention under the scope of “consent” from the High Contracting Party is constrained for the benefit of the affected civilians and the international organization delivering the humanitarian aid. This evidence draws on a range of frameworks and that alone indicates the need to refresh the understanding of all concerned parties and actors as to the scope of the ‘right’ to safely deliver and receive humanitarian assistance.

What more could the Government do, with or without partners, to hold perpetrators of attacks and abuse against

aid workers to account and encouraging adherence to international humanitarian law on these issues?

See above about ensuring legal frameworks for protection.