International Development Committee Inquiry: Humanitarian Access and Adherence to International Humanitarian Law

Written Evidence Submitted by Jack Sproson and Tsvetelina van Benthem

22 January 2025

This evidence is submitted by Jack Sproson and Tsvetelina van Benthem in their personal capacity. Jack Sproson is a British barrister specialising in international humanitarian law, international criminal law, public international law, and international human rights law. He has advocated amongst, advised, and briefed numerous states and organisations on issues relating to humanitarian relief operations. Jack is pursuing a DPhil at the University of Oxford, with a research focus on cross-border humanitarian relief operations in complex humanitarian emergencies. Tsvetelina van Benthem is a research fellow at the Oxford Institute for Ethics, Law and Armed Conflict, and a lecturer in international law at the Oxford Diplomatic Studies Programme. She is a generalist international lawyer specialising in international humanitarian law, international criminal law, human rights law, and the regulation of artificial intelligence and information and communications technologies. [1]

Table of Contents

Executive summary

I.              Introduction

II.              Synopsis of trends regarding impediments to humanitarian access in armed conflict

III.              Legal protections of humanitarian assistance/relief personnel in times of armed conflict

A.              Responsibility for civilian needs and offers of humanitarian assistance

B.              Principled offers of and consent to humanitarian assistance

C.              The obligation to ‘allow and facilitate’ humanitarian access/assistance operations

D.              The protection of humanitarian relief personnel and supplies in armed conflict

IV.              Inducing compliance with the law - a toolkit

A.              Diplomatic pressure

B.              Invocation of responsibility

C.              Implementation of responsibility

D.              Expressing commitment to international law and international institutions

Executive summary

Current trends in adherence to international humanitarian law in conflicts, particularly regarding the safe delivery of humanitarian assistance: Several major data collection and analysis sources report downward trends in compliance with protections afforded to humanitarian relief personnel and operations under international humanitarian law (“IHL”). Analyses from both non-governmental and UN bodies suggest that there has been an overall rise in denials of humanitarian access. Bureaucratic impediments, such as those which restrict who may receive relief, when, how, and which relief might be provided, feature heavily as an impediment to effective humanitarian responses. The same analyses also indicate that attacks impacting relief personnel appear more prevalent than they have been previously.

The impact of lack of adherence to IHL on both the physical access to humanitarian supplies and the safe operation of relief personnel: Impediments to humanitarian access are diverse. They may be legal (e.g., gaining consent to enter a territory) or bureaucratic (e.g., navigating administrative regimes of conflict parties). They might relate to the conditions in which relief operations take place (e.g., the climate or terrain and/or active fighting, or the need for negotiated access in specific localities even where access is granted in principle), or to violence against relief personnel. These impediments jeopardize the viability of humanitarian operations and the access of populations to means essential for their survival. Negative impacts on relief personnel during military operations is an area of particular concern. These impacts create a hostile and dangerous work environment characterized by the risk of death and injury (both physical and psychological). In doing so, they also reduce the actual and perceived operational space for such personnel. This can endanger the efficacy and/or viability of humanitarian operations as a whole, as organisations seek to ameliorate risk to their staff, potentially by ceasing operations entirely, or by taking compromise measures such as pulling international staff from conflict areas. This decreases proximity to affected populations and can mean more being asked of (and risk transferred to) local staff, who often are those who bear the brunt of conflict-related risks.

The legal protections available to humanitarian relief personnel: Notwithstanding some interpretative controversies, IHL offers a developed framework of protections for humanitarian operations and relief personnel. All parties must respect and ensure respect for these rules, and due regard must be had for the impact that breaches of one rule may have on others. Military operations that harm relief personnel in breach of IHL, for example, may well create an environment conducive to harm that impedes humanitarian responses, breaching the obligation to allow and facilitate humanitarian operations. This could also potentially be interpreted as a constructive refusal/withdrawal of consent to humanitarian access. Parties must comply with these rules by taking steps to create, to the greatest feasible extent, an environment that is in fact conducive to the effective and efficient delivery of principled humanitarian assistance to those populations that require it.

The United Kingdom has a wide toolkit for inducing compliance with international law at its disposal: The United Kingdom not only has a right, but also a responsibility to take steps to end violations of IHL and prevent their future recurrence. Compliance is directly linked to perceptions of accountability: without a proactive approach to inducing compliance, trust in the international legal system may erode. Particular measures that may be taken include: exercising diplomatic pressure, including through protests in front of relevant international mechanisms; invoking the responsibility of wrongdoing states in front of courts and tribunals; implementing the responsibility of wrongdoing states through the use of retorsions and measures justified under circumstances precluding wrongfulness.

I.               Introduction

1.              This desk-based, qualitative submission is made by Jack Sproson and Tsvetelina van Benthem in their personal capacity, in response to the UK International Development Committee’s call for written evidence on humanitarian access and adherence to IHL. This submission seeks to address specifically the following issues (as enumerated in the call):

• The current trends in adherence to IHL in conflicts, particularly regarding the safe delivery of humanitarian assistance;
• The impact of lack of adherence to IHL on both the physical access to humanitarian supplies and the safe operation of relief personnel;
• The legal protections available to humanitarian relief personnel, including gaps in and the development of IHL; and
• What the Government could do with or without partners, to hold perpetrators of attacks and abuse against relief personnel to account and encouraging adherence to IHL on these issues.

2.              These issues are grouped within three main headings: (II) a synopsis of trends regarding impediments to humanitarian access in conflict; (III) legal protections of humanitarian assistance/relief personnel in times of armed conflict; (IV) and a toolkit for inducing compliance with the law.

II.            Synopsis of trends regarding impediments to humanitarian access in armed conflict

3.              Humanitarian relief personnel and their operations can face a diverse range of challenges when seeking to gain and maintain access to affected populations.[2] This evidence focusses on those commonly referenced as occurring in humanitarian operations during armed conflict. These might include, for example, legal (e.g., the need to gain consent to enter a territory) or bureaucratic (e.g., obtaining visas and entry permits, or navigating inspection regimes that conflict parties may implement to ensure the humanitarian nature of relief consignments) impediments.[3] They may also relate to the conditions in which humanitarian relief operations take place, for example where challenges are posed by the climate or terrain and/or active fighting.[4] In amongst these hurdles, humanitarian relief personnel will also have to navigate an often complex web of relationships to ensure access to affected populations. Thus, even when they are granted ‘legal’ consent to operate and are officially operating within given administrative and technical frameworks, it will still be invariably necessary to obtain ‘strategic’ consent by those in territorial control to move freely within those areas.[5] When navigating access, relief personnel have also become familiar with the diversion of or interference with humanitarian relief consignments, and actions/omissions which lead to them coming to harm in the conduct of military operations. Such harm may come as the result of conflict parties intentionally making relief personnel the object of attack, with knowledge of their protected status. It might also come from parties targeting humanitarian relief personnel in the mistaken belief that they are a military objective (for instance, combatants or civilians taking a direct part in hostilities). It might further arise when humanitarian relief personnel become incidental civilian harm in an attack directed against a lawful military objective.

4.              Several analyses suggest that there has been an overall rise in denials of humanitarian access,[6] with bureaucratic impediments and attacks on humanitarian relief personnel featuring heavily.[7] Indeed, in respect of the latter it has been noted that data progression since the late 1990s shows a “marked rise in insecurity for humanitarian operations” with the main risks changing from “accidents and illnesses…[to]…violence, both collateral and targeted, which claims more aid worker lives than any other work-related cause.”[8]

5.              Impediments to humanitarian access have serious repercussions, potentially jeopardising the operational viability of humanitarian operations and the access of vulnerable populations to means essential for their survival. These impediments, therefore, “further compound civilian suffering.”[9] Harms caused to humanitarian relief personnel in the context of targeting are particularly pernicious in this regard. Whether direct or indirect, intentional or not, military operations causing harm to relief personnel create an increasingly hostile and dangerous work environment, whereby they are ever more susceptible to death and injury in the line of duty, including the psychological toll of operating in such environments.[10] Ethically and legally, this is not and should not be accepted as an ‘inevitable part of the job’ for those involved in the delivery of humanitarian relief; those individuals are part of an essential and protected profession, they are not (or at least should not be) ‘martyrs’.[11] 

6.              In addition to its individual impact, subjecting humanitarian relief personnel to violence or risk of violence can also have more pervasive impacts on the viability of humanitarian operations as a whole. It is of course fundamentally true that humanitarian assistance cannot be delivered without healthy and operationally effective humanitarian personnel. Subjecting humanitarian relief personnel to violence, including that which results in injury or even death, can therefore impact upon humanitarian operations in a very immediate sense. However, this is not the only way in which targeting may impact the viability of humanitarian operations. Particularly as security and risk management practices have become increasingly mainstreamed into humanitarian operations,[12] humanitarian organisations are aware of the actual and potential risks that they subject their staff to. Where harm caused in the conduct of military operations increases, the operational space for their personnel reduces. This can lead to a recalculation for those responsible for humanitarian operations, creating an environment that is so conducive to harm that it may force them to amend delivery strategies to ensure the safety of staff where risk cannot be acceptably mitigated. This might mean that organisations are forced to cease operations entirely, potentially cutting off affected populations from lifesaving goods and services per se.[13] It may also mean organisations taking measures that, whilst not cutting off humanitarian relief entirely, nonetheless lead to assistance being delivered with compromise solutions, such as “clandestine or under-ground, cross-border, remote or blind management, and conflict actor-aligned operations.”[14] This latter scenario may be borne out where, for example, organisations pull international staff from the theatre of hostilities,[15] which, whilst ensuring some level of operational continuity, decreases the operational proximity of external organisations to affected communities (an essential facet of humanitarian operations[16]) and can mean that more is asked of (and risk transferred to[17]) local staff, who often are those who bear the brunt of conflict-related risks.[18]

III.         Legal protections of humanitarian assistance/relief personnel in times of armed conflict

7.              This section lays out legal protections under IHL relevant to the protection of humanitarian relief operations in armed conflict. While the present submission focusses on IHL, it is important to emphasise that other legal frameworks apply concurrently, complementing and supplementing IHL. For instance, international human rights law (“IHRL”), which is contained in treaty instruments and customary international law, provides important protections to individuals both in peacetime and in times of armed conflict.[19] The rights to life,[20] health, food and housing[21] are particularly relevant in the context of humanitarian relief, and give rise to negative and positive obligations to states exercising jurisdiction. Further, international criminal law (“ICL”), a legal framework focused on the criminal responsibility of individuals, criminalises, among others, starvation of civilians as a method of warfare,[22] attacks directed against the civilian population as such or against individual civilians not taking direct part in hostilities,[23] and attacks directed against personnel, installations, material, units or vehicles involved in humanitarian assistance.[24]

8.              The treaty corpus of IHL is primarily contained in the Four Geneva Conventions of 1949 (respectively, “GC I”, “GC II”, “GC III” and “GC IV”) and Additional Protocols I and II of 1977 (respectively “AP I” and “AP II”). Rules of IHL are also contained within a significant body of customary international law,[25] which, outside of very specific situations, binds all states. A foundational classification in both treaty and customary IHL is that between the law governing conflicts between states (including situations of occupation) (international armed conflicts (“IACs”)), and the law governing conflicts between states and non-state actors or between non-state actors (non-international armed conflicts (“NIACs”)). Over time, the development of customary law has led to a significant rapprochement of the customary obligations binding parties in IACs and NIACs.

9.              The evidence in this section breaks the protections granted to humanitarian operations under IHL into stages, including: responsibilities to the civilian population before offers of humanitarian assistance are made; the principles applicable to the making of and consenting to offers of humanitarian assistance; and the obligation to allow and facilitate humanitarian access. The protection of humanitarian relief personnel is taken last, but is fundamental and applies throughout all humanitarian operations in all their stages. Despite this phased approach, the rules analysed below operate in tandem, and often overlap. These obligations must be respected and ensured by all conflict parties.[26] Due regard must be had for the impact that breaches of one may have on another. Military operations that harm relief personnel in breach of IHL, for example, may well create an environment conducive to harm that impedes humanitarian responses, breaching the obligation to allow and facilitate humanitarian operations. This could also potentially be interpreted as a constructive refusal/withdrawal of consent to humanitarian access. To avoid this, parties must take steps to ensure, to the greatest possible extent, an environment that is in fact conducive to the effective and efficient delivery of principled humanitarian assistance to those populations that require it.

A.       Responsibility for civilian needs and offers of humanitarian assistance

10.          All parties to an armed conflict have obligations in respect of the civilian population within their areas of territorial control.[27] GC IV expressly sets out that in situations of occupation, for example, occupying powers have “the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” [28] AP I extends this express duty of the occupying power to ensuring:

“to the fullest extent of the means available to it and without any adverse distinction… the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship.”[29]

11.          Outside of situations of occupation, express provisions of IHL are lacking as regards this obligation. Attention might be drawn to the obligation to provide those deprived of their liberty with food, water, and other essential supplies, which arises from the obligation of all parties to treat protected persons ‘humanely’.[30] From this, some have inferred a similar obligation in respect of persons under the effective control of a party more generally.[31] In addition, echoing the co-application of IHL and IHRL in times of conflict, it has been noted that the obligation of humane treatment bears “the mark of international human rights law” and is a fundamental guarantee constituting “a minimum standard of protection which anyone can claim at any time, and [which underlies] the whole system of human rights.”[32] In as far as this is the case, responsibility for the civilian population is intrinsically linked to human rights law, which will require states exercising jurisdiction to take all possible measures to respect, protect, and fulfil the rights to life, food, health, water and housing by ensuring access to “minimum essential food which is nutritionally adequate and safe…[and]…basic shelter, housing and sanitation…an adequate supply of safe and potable water.”[33]

B.        Principled offers of and consent to humanitarian assistance

12.          Where the needs of civilians are not met, and populations thus have insufficient access to ‘relief supplies’,[34] offers of humanitarian relief may be made.[35] Those making offers and their operations must be exclusively humanitarian and impartial, and conducted without adverse distinction.[36] This is referred to here as a ‘qualifying offer of humanitarian assistance’. There are some areas of interpretative controversy regarding ‘consent’, but most at least accept that states and international organisations may only conduct humanitarian operations directly (i.e., with ‘boots on the ground’), with the territorial state’s consent or UN Security Council authorisation.[37]

13.          Nonetheless, consenting to qualifying offers of humanitarian assistance is not entirely discretionary, as such offers may not be refused ‘arbitrarily’. Whilst ill-defined, ‘arbitrariness’ has been accepted as encompassing three scenarios. First, arbitrariness will be made out where a refusal violates a state’s obligations under international law, for example by amounting to a violation of IHL or IHRL. Second, a refusal will be arbitrary where it is unnecessary or disproportionate, in that it goes beyond what is necessary to achieve a legitimate aim, such as imperative reasons of security. Finally, this will be the case where a refusal is unreasonable, unjust, lacks predictability, or is otherwise inappropriate, for example because it lacks any justification, or the justifications provided are blanket or abstract, such as “[s]tate sovereignty, the internal legal order, national pride and/or interests, political orientation, the interests of the regime in power, and similar arguments.”[38] Once given, these principles also govern the withdrawal of consent, which requires parties to show that relief has been provided in an unprincipled manner, or is no longer necessary. If they cannot, withdrawals will be arbitrary, and unlawful.[39]

14.          It has been noted in respect of arbitrary withdrawals of consent that parties do not have to do so expressly, and can also do so ‘constructively’. For example, technical arrangements are permissible but must be applied in good faith and only where necessary and proportionate. Thus, it may be legitimate to insist that humanitarian relief consignments be exclusively humanitarian, and necessary/proportionate to use some inspections to ensure this. However, bureaucratic measures that exceed those necessary to achieve this aim, unnecessarily slowing humanitarian responses, may be deemed an arbitrary denial of humanitarian assistance, even where consent is given in principle. The same reasoning may apply to arbitrary refusals of consent to qualifying offers of humanitarian assistance. Thus, it is possible to envision a scenario where a party does not expressly refuse such qualifying offers, perhaps remaining silent, but operates in such a manner as to make it clear that such offers would not be accepted, for example by targeting humanitarian relief personnel, diverting humanitarian assistance, or physically blocking the entry of any notional relief operation into the territory (which would also constitute violations of the obligation to ‘allow and facilitate’ (see, infra). Were this scenario to occur, it could potentially be said that they had arbitrarily refused consent in a ‘constructive’ manner.

C.       The obligation to ‘allow and facilitate’ humanitarian access/assistance operations

15.          Once consent is granted, parties must ‘allow and facilitate’ humanitarian access.[40] This obligation binds all parties to the conflict,[41] unlike many (but not all) scholars’ limitation of ‘legal consent’ to the territorial state, as examined above.[42] The obligation to ‘allow and facilitate’ humanitarian access requires parties to ensure, to the extent possible, that humanitarian relief is able to access affected populations rapidly and without impediment, even if such assistance is destined for the civilian population of the adverse party.[43] Parties to conflict must therefore refrain from creating an environment conducive to harm which can effectively prevent relief operations.

16.          To avoid the creation of an environment antithetical to the delivery of humanitarian assistance, parties must refrain from any harassment or restriction upon humanitarian relief personnel,[44]  and restrict humanitarian access only temporarily, where justified by imperative reasons of military necessity within a particular area (i.e., not across the entire territory in a blanket fashion).[45] Parties should also take steps to prioritise/expedite humanitarian relief within administrative processes. This might include expediting customs checks (or dispensing with these requirements entirely), simplifying entry/exit procedures, including steps to obtain (or even the necessity of) visas, and/or exempting humanitarian relief consignments from taxes and other customs duties. Administrative bodies should also be staffed and resourced sufficiently to ensure efficiency.[46]

17.          Importantly, patterns of non-compliance with obligations under the conduct of hostilities regime can create a harmful environment, or exacerbate its risks, and thereby violate the obligation to allow and facilitate humanitarian access. Non-compliance need not imply the purposeful targeting or knowing harming of humanitarian personnel. Even mistakes in the identification of objects of attack or in the estimation of incidental civilian harm can breach the relevant provisions of IHL.[47] One tragic example of the consequences of what was claimed to be mistaken target identification comes from Israel's military operations in Gaza. On 1 April 2024, seven members of an aid convoy died following an IDF attack.[48] Even if the claim made by the IDF that the incident had been ‘a mistake that followed a misidentification, at night’[49] is correct, this does not automatically mean that the attack was not unlawful. Depending on the facts – including what was known to the attackers at the time - the attack may have contravened the principle of distinction.[50] And importantly for the obligation analysed in this section, when parties to conflict conduct their military operations in a way that creates a battlefield environment conducive to negligent or reckless mistakes, humanitarians simply cannot operate, and this may raise issues under the obligation to allow and facilitate humanitarian access.

D.       The protection of humanitarian relief personnel and supplies in armed conflict

18.          As noted above, effective humanitarian access is contingent upon the effective protection of humanitarian relief personnel. Reflecting this, IHL requires a number of protective measures from parties to conflict that are focussed on, or relevant to, relief personnel. It is well-recognised that under IHL humanitarian relief personnel must be respected and protected, and thus must not be the object of attack or other forms of violence.[51] These rules exist in treaties and customary international law and protect humanitarian personnel in both IACs and NIACs. On one hand, these protections can be derived from the status granted to humanitarian relief personnel, who, as part of those participating in any relief action, must be respected and protected.[52] Protections are also granted to medical personnel, who must not be subjected to attack, harassment, or harm in carrying out their duties.[53] Relief personnel must comply with technical arrangements imposed by the state in whose territory the relief action is to be conducted, and operate in a manner that is exclusively humanitarian, impartial, and without adverse distinction. Failing to do so may lead to the termination of their own mandate but not the termination of the entire operation,[54] and, unless those personnel take a direct part in hostilities, does not make them liable to attack. On the other hand, the protections afforded to relief personnel can be derived from the IHL protections of civilians. Relief personnel are protected from both direct attacks and indiscriminate ones (including attacks where the expected incidental civilian harm is excessive in relation to the concrete and direct military advantage anticipated). Relief personnel also benefit from precautionary obligations in attack and against the effects of attacks. This includes exercising precaution in attack by doing everything feasible to verify that targets are legitimate military objectives, taking into account, for example, the information available to the attacker, their own capabilities and/or conflict realities, and the risk(s) involved to their own forces in doing so.[55]

19.          Parallel protections are granted to the objects used by humanitarian personnel as part of their relief actions, which, as civilian objects, cannot be targeted, looted, or destroyed.[56] Particular protection is afforded to supplies deemed essential to the survival of the civilian population, including food and medical supplies, in respect of which parties have “an absolute obligation” under customary international law to “allow and facilitate rapid and unimpeded passage of medical relief supplies and equipment.”[57]

IV.         Inducing compliance with the law - a toolkit

20.          The previous section outlined some of the most relevant obligations protecting humanitarian assistance and relief personnel under IHL. Many of these rules provide overlapping protections, and are relatively clear in scope. Some areas of interpretative controversy remain, and efforts to clarify or progressively develop these rules should continue. For the most part, however, the question posed by current trends does not appear to be whether there are enough rules, but rather why these rules are not being complied with. In this sense:

“[i]t is not the absence of law that is causing casualties, destruction and unprecedented displacement in armed conflict, but flagrant breaches of the most fundamental rules of international humanitarian law. Ways must be found to strengthen compliance with the law.”[58]

21.          There is no one-size-fits-all approach to ensuring compliance. Whether parties to conflicts act consistently with their obligations depends heavily on contextual factors, including “the type of violation, the party whose compliance one is trying to enhance, and the party trying to promote respect for the law. Often it is a mix of methods that is most effective, together with the appreciation that achieving better compliance is a long-term process.”[59] Given the diversity of reasons for which parties might not comply, the levers by which compliance might be ensured are equally diverse.

22.          Where the obligations addressed above are breached by their addressees, certain consequences automatically follow. When individuals violate customary and treaty ICL, their criminal responsibility is entailed, and, subject to jurisdiction, they may face prosecution in front of the competent domestic and international courts. When parties to conflict violate their obligations under IHL, their responsibility is similarly entailed. In respect of states, the customary law of state responsibility sets out the consequences of a state’s internationally wrongful act, such as the secondary obligations to cease the wrongdoing, offer appropriate assurances and guarantees of non-repetition, if circumstances so require,60 and provide reparation.61 Compliance rates with these protections may suffer if addressees of the relevant obligation(s) perceive themselves as operating in a climate of impunity. Accountability can therefore be a powerful deterrent to future violations.

23.          States that are not parties to a particular conflict may nonetheless have a critical role to play in ensuring access to humanitarian relief to those in need, in particular by bringing responsibility to bear on wrongdoers. And while the modalities of countering violations related to the delivery of humanitarian relief leave a wide discretionary scope to states, the taking of at least some steps to induce compliance may not be a matter of political choice. This is because states parties to the Geneva Conventions and their Additional Protocols are bound not only to respect, but also to ensure respect for these treaty instruments.[60] This is, at base, a positive obligation to take measures, requiring states to be proactive in bringing violations to an end and preventing future violations in cases of foreseeable risk.[61] What this means is that a failure to take such steps could entail the responsibility of states that remain passive in the face of violations or risk thereof. Regarding the content of this obligation, it is a due diligence obligation of means, not result, whose scope “depends on the specific circumstances, including the gravity of the breach, the means reasonably available to the State, and the degree of influence it exercises over those responsible for the breach.”[62] Many factors influence the effectiveness of particular strategies taken by states that are not parties to a particular conflict to induce compliance with international law. The history of the relationship between the states, state capacity, the type of violation and its context, and the availability of review mechanisms will all feed into how a state decides to respond to a breach. While diplomatic dialogue might suffice in certain circumstances, a more robust approach through formal legal mechanisms might be required in others.

24.          The remainder of this section provides a toolkit of measures that the United Kingdom can use as levers for inducing compliance with the law in cases of violation relative to the delivery of humanitarian assistance. The following three types of measures, to be pursued jointly or in isolation, are of particular relevance: (A.) diplomatic pressure; (B.) invocation of responsibility; and (C.) implementation of responsibility. It is noted that outside of individual criminal responsibility, many of the structures which may be used to induce compliance are often oriented toward state, rather than non-state actors. It is not the case that non-state actors are entirely omitted. Attempts can be made to induce compliance of non-state conflict parties, for example through sanctions,[63] or to engage non-state actors in a relationship of negotiation.[64]

A.       Diplomatic pressure

25.          Diplomatic pressure is typically a first step in seeking to induce compliance with the law. In addition to correspondence through diplomatic channels, public protests – a routine form of responding to violations of the law – can be particularly effective in shaping both the conduct of the wrongdoer and the sentiment of the international community. That being said, protests and related measures of naming and shaming need to be undertaken with care, given the sensitivity of the topic and the potentially disastrous repercussions of further escalation and isolation of the wrongdoing party. In their messaging, states should emphasise their commitment to the unimpeded operation of organisations and agencies that provide humanitarian relief in a neutral, impartial and independent way. Such agencies are often best placed to both describe the nature of the impediments they face and explain their needs for resuming or safely continuing the delivery of relief.

26.          Importantly, diplomatic pressure can be exercised in fora tasked with reviewing legal compliance. Such fora are sometimes envisioned in treaty regimes. This is particularly relevant in the context of human rights treaties, which establish a wide range of bodies that can scrutinise state conduct against the benchmarks of human rights obligations contained in their constitutive instruments. One prominent example in this regard is the Universal Periodic Review,[65] a state-driven process within the auspices of the Human Rights Council, which involves a review of the human rights records of all UN Member States. The very possibility of review within such mechanisms, which entails the need for sound legal justification, could exert a deterrent effect on states. As was discussed above, since human rights law applies in times of armed conflict and contains provisions relevant to the delivery of humanitarian relief, this legal regime opens the door to important avenues for review of legal compliance.

B.        Invocation of responsibility

27.          The customary law of state responsibility sets out the general conditions for invocation of state responsibility in front of formal procedures, such as international courts and tribunals. How and where particular violations may be invoked depends on the specific rule in question, as well as on the existence of procedures established by particular legal frameworks.

28.          The ‘sharp-end’ question for third-states is the question of standing, i.e., of legal interest to invoke responsibility. States have a legal right to invoke the responsibility of another state either when they are injured by the internationally wrongful act or where the nature of the breached obligation envisions invocation by non-injured states. The latter scenario refers to breaches of obligations erga omnes (obligations owed to the international community as a whole) and obligations erga omnes partes (obligations established for the protection of a collective interest of the group).[66]

29.          Recent years have seen a particular interest in the invocation of responsibility on the basis of alleged breaches of erga omnes partes obligations – in Gambia/Myanmar,[67] South Africa/Israel,[68] Nicaragua/Germany,[69] and Canada & The Netherlands/Syria.[70] While the erga omnes partes nature of obligations remains reserved to a limited set of international rules, it has been established in cases involving human rights (torture)[71] and advanced by the ICRC for IHL Conventions.[72] Obligations relative to the safe delivery of humanitarian assistance and safety of relief personnel under IHL, and certain obligations under IHRL, are best seen as falling within the category of erga omnes partes obligations.

30.          More difficulties may arise in relation to the jurisdiction of international courts. States must consent to  the settlement of their disputes in front of courts and tribunals. The question of jurisdiction is to be determined on a case-by-case basis, as it depends on the consent conferred by specific states to specific dispute settlement mechanisms or in relation to specific disputes or categories of disputes.[73]

31.          While not technically legal invocation, requests for advisory proceedings in front of the International Court of Justice can play an important role in clarifying the content of the law in relation to humanitarian assistance. By submitting observations, states can advance their interpretations of the relevant legal provisions and simultaneously use the opportunity to make an assessment of (il)legality in a particular situation under review. Recently, the General Assembly adopted a resolution containing a ‘request for an advisory opinion of the International Court of Justice on the obligations of Israel in relation to the presence and activities of the United Nations, other international organizations and third States’. Engaging with these proceedings is in the interests of all states – not simply to participate actively in the clarification of the law, but also to affirm commitment in international institutions specifically and the international legal system more generally. At a time of geopolitical tensions and deliberate efforts to undermine the rules-based international order, the importance of expressing such commitment cannot be overstated.

C.          Implementation of responsibility

32.          Beyond diplomatic protests and invocations of responsibility, states may seek to implement the responsibility of the wrongdoing state(s) through a more invasive approach. On the lower end of the spectrum, unfriendly yet lawful measures – known as ‘retorsions’ – may be an appropriate first step.[74] Examples of retorsions include the suspension or withdrawal of aid programmes, trade restrictions or diplomatic escalation, such as the severance of diplomatic relations.[75]

33.          Further up the scale of ‘invasiveness’ are countermeasures – a typical method of decentralised enforcement in international law. Countermeasures are measures that, but for the internationally wrongful act of the responsible state, would be contrary to the international obligations of the state taking the measures.[76] They are therefore contingent on the existence of a prior unlawful act. Because the determination of a prior unlawful act depends on the interpretation of the relevant obligations, any ambiguity in the substantive law can create undesirable grey areas affecting the legality of the response. There is therefore a clear link between elucidating the content of obligations relative to humanitarian relief and the possibility to induce compliance with the law through lawful measures.

34.          Since countermeasures can lend themselves to abuse, international law imposes significant constraints through conditions for their lawful employment. To start with, their purpose must be to induce a change in the behaviour in the responsible state, to induce compliance – and not to retaliate. Further, countermeasures must be proportionate to the injury suffered and are subject to a list of procedural and substantive conditions.[77]

35.          Of particular import to this discussion on the toolkit of third states is the question of ‘collective’ countermeasures. Can non-injured states rely on this circumstance precluding wrongfulness? The measures taken by Western states against Russia following its war of aggression in Ukraine suggest a growing acceptance that third states can indeed take countermeasures against violations of obligations erga omnes or erga omnes partes.[78]

36.          Countermeasures can take a variety of forms, violations in the area of international trade and rules of immunity being prime examples.[79] Following Russia’s aggression against Ukraine, the freezing of Russian assets has been a particularly effective tool in removing over 300 billion USD from Russia’s pocket, which would otherwise have been used to further its aggression. If such measures were considered lawful in the context of Ukraine, then they will be lawful in comparable contexts that similarly involve the breach of obligations erga omnes or erga omnes partes.

37.          If all else fails, it may be queried whether third states can themselves step in and deliver humanitarian relief despite lack of consent by the territorial state. This avenue is both legally fraught and logistically complex. Depending on modalities, such delivery could be said by some to breach obligations owed to the territorial state, most notably territorial sovereignty, or may qualify as prohibited intervention of even a use of force. If such delivery would be considered a use of force, then the only lawful grounds for the operation could come from a Security Council authorisation or self-defence. To avoid this, states and international organisations may resort to delivery modalities that fall short of prohibited interference with state sovereignty. Alternatively, for operations that fall below the threshold of a use of force, yet still violate obligations owed to the territorial state, the delivery of humanitarian relief may rely on circumstances precluding wrongfulness, such as necessity.[80]

38.          Under the doctrine of necessity, the wrongfulness of a breach of an international obligation can be precluded where the conduct in violation is the only way for the state to safeguard an essential interest against a grave and imminent peril and it does not seriously impair an essential interest of the state or states towards which the obligation exists, or of the international community as a whole.[81] Just as with countermeasures, necessity can lend itself to abuse, and it has therefore been approached with caution.

D.       Expressing commitment to international law and international institutions

39.          Beyond the concrete measures examined above, the importance of continued – and expressly affirmed and reaffirmed – commitment to international law and international institutions must be emphasised. Such commitment can be demonstrated by statements supporting the functions of international institutions, such as the United Nations (with its relief agencies and principal judicial organ, the International Court of Justice) and International Criminal Court. This commitment can also be signalled by clear and repeated mentions of international law in political declarations, resolutions and speeches of state officials. Commitments should be affirmed in a principled fashion across conflicts. It is noted in this regard that on 27 September 2024, Brazil, China, France, Jordan, Kazakhstan and South Africa together with the ICRC launched a global initiative to galvanize political commitment to IHL. This initiative is intended to foster a prioritisation of IHL in political fora at all levels, increase levels of compliance and application, and begin a process of discussing specific issues within IHL so as to make recommendations to address them. To this end, the initiative has committed to producing “concrete and practical recommendations to meet these challenges…[culminating]…in a landmark meeting to uphold humanity in war by the end of 2026.”[82] This work is directly related to the International Development Committee’s focus, and full, sustained, and constructive engagement by the UK Government is to be encouraged.

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The authors thank the International Development Committee for the opportunity to submit evidence in respect of this matter and remain at the Committee’s disposal.

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