Professor Iain Scobbie (Manchester International Law Centre)
Submission to the International Development Committee’s inquiry into Humanitarian access and adherence to international humanitarian law.
Professor Iain Scobbie joined The University of Manchester in 2013 as Professor of Public International Law. Previously at SOAS, he specializes in international humanitarian law, adjudication, and legal theory. His Ph.D. focused on the ICJ, and he co-founded the Manchester International Law Centre. He has also acted as consultant to proceedings before the International Court of Justice, English High Court, and UK Supreme Court, and given evidence to committees of the Westminster and Scottish Parliaments.
Submission supported by Policy@Manchester.
What are the current trends in adherence to international humanitarian law in conflicts, particularly regarding the safe delivery of humanitarian assistance?
This really depends on the nature of the conflict, whether it is an international armed conflict between States or a non-international armed conflict between a State and a non-State armed group or, in some circumstances, between non-State armed groups alone, and also on the parties. For example, some non-State armed groups will engage with NGOs such as Geneva Call to enter into commitments in relation to some areas of IHL (see Thematic Areas | Geneva Call).
However the situation is dire in relation to some conflicts as a recent Human Rights Watch report on Somalia (16 January 2025) indicates (see HRW – Human Rights Watch (Author): “World Report 2025 - Somalia”, Document #2120047 - ecoi.net)
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?
Formally the level of protection afforded to humanitarian relief efforts is, in principle, clear. The ICRC’s study on customary IHL states:
The ICRC argues that these rules are applicable in both international and non-international armed conflicts - for commentary on these rules (see Customary IHL - Rule 31. Humanitarian Relief Personnel and Customary IHL - Rule 32. Humanitarian Relief Objects).
These Rules are very general and matters are more closely regulated in the 1949 Geneva Conventions and 1977 Additional Protocol I Additional to the Geneva Conventions (international armed conflicts) and 1977 Additional Protocol II (non-international armed conflicts).
In relation to international armed conflicts, the principal area of regulation is humanitarian assistance in occupied territories set out in Geneva Convention IV relative to the Protection of Civilian Persons, Article 23 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 23, 55 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 55, 59 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 59, 60 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 60, and 61 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 61. The ICRC commentaries on these Articles which is hyperlinked in these references is dated. It was prepared in 1958. The ICRC has been engaged in a revision of the commentaries for many years but the Commentary on Convention IV has not yet been published.
Additional Protocol I reaffirmed the provision of humanitarian relief in occupied territories in Article 69 IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 - Article 69, and to territories which are not occupied as such but are under the control of a Party to the conflict in Article 70 IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 - Article 70 with protection afforded to humanitarian personnel in Article 71 IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 - Article 71.
In relation to the conflict in Gaza, on 19 July 2024 the International Court of Justice in the Legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory advisory opinion ruled in paras.88-94 that Gaza is territory occupied by Israel - Advisory Opinion of 19 July 2024. It is sometimes claimed that advisory opinions are not binding. This is disingenuous and rests on the technicality that there are no parties in advisory proceedings that can be bound by res judicata. Advisory opinions are an authoritative statement of the law. On 23 December 2024 the UN General Assembly requested the International Court to provide an additional advisory opinion on the obligations of Israel in relation to the presence and activities of the United Nations, other international organizations and third States in and in relation to the Occupied Palestinian Territory to supplement the July 2024 opinion - The General Assembly of the UN requests an advisory opinion from the Court on “the obligations of Israel in relation to the presence and activities of the UN, other international organizations and third States” in and in relation to the OPT.
In relation to non-international armed conflicts, 1977 Additional Protocol II, Article 18, particularly para.2, provides for relief operations to benefit the civilian population IHL Treaties - Additional Protocol (II) to the Geneva Conventions, 1977 - Article 18.
The main problems lie with the parties to the conflict who effectively have to consent to the provision of humanitarian assistance and can control these operations. A structural problem in relation to international armed conflicts is the widespread failure of the parties to the conflict to appoint Protecting Powers which are neutral States nominated by the Parties ‘to safeguard the interests of the Parties to the conflict’ and mediate/conciliate between the Parties in part to ensure that they are abiding by IHL, see Geneva Convention IV, Articles 9 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 9 and 10 IHL Treaties - Geneva Convention (IV) on Civilians, 1949 - Article 10. Article 10 authorises the ICRC to provide for the relief of civilians, but this is subject to the consent of the parties to the conflict. On the activities of the ICRC under both the 1949m Conventions and Additional Protocol I, see Additional Protocol I, Article 81 IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 - Article 81.
It should also be borne in mind, however, that under common Article 1 of the 1949 Geneva Conventions and Article 1(1) of Additional Protocol I all Parties to the instruments have the duty not only to respect but also to ensure respect for these instruments ‘in all circumstances’, see IHL Treaties - Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field,1949 - Article 1, and IHL Treaties - Additional Protocol (I) to the Geneva Conventions, 1977 - Article 1. The most recent ICRC commentary to common Article 1, published in 2020, is to its inclusion in Convention III (protection of prisoners of war), see IHL Treaties - Geneva Convention (III) on Prisoners of War, 1949 - Article 1.
In the 2004 Legal consequences of the construction of a wall in occupied Palestinian territory advisory opinion, the International Court ruled in para.158:
The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in al1 circumstances." It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.
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 on the UK’s obligations under common Article 1 of the 1949 Conventions and Article 1(1) of 1977 Additional Protocol I.