Starvation and Access to Humanitarian Relief

Situations of armed conflict may result in acute deprivation of food, water and other essential supplies for the civilian population. IHL sets forth a number of rules to ward off this scenario. Some of these rules prohibit conducts by parties to the conflict that would deliberately (if not reasonably) result in the starvation of the civilian population – this is the case for the rules on sieges and on objects indispensable to the survival of the civilian population. Others are meant to address situations of inadequate supply of essential goods that may arise, more broadly, from the very context of armed conflict, independently of the strategies and behaviours adopted by belligerents – as is the case with the rules on humanitarian relief.

Starvation of the civilian population

IHL prohibits starving civilians as a method of warfare in both IACs and NIACs.¹ Banning this method of total warfare represents a significant achievement for IHL.² A key implication of this rule is that sieges, embargoes and blockades whose primary goal is to starve the civilian population are unlawful; even when a party to the conflict lays a siege or imposes an embargo or blockade to achieve a legitimate military objective (e.g., forcing enemy armed forces to surrender), it would be obliged to allow the passage of essential supplies or the evacuation of civilians if the latter were inadequately supplied.³

Objects indispensable to the survival of the civilian population

To implement the prohibition on starvation of civilians as a method of warfare, IHL affords specific protection to a particular category of objects. More specifically, it prohibits not only to attack, but also to destroy, remove or render useless those objects that are indispensable to the survival of the civilian population.⁴ This category includes foodstuff, agricultural areas for the production of food, crops, livestock, drinking water installations and supplies and irrigation works. Other objects (beyond food and water) that are also essential to the survival of the civilian population include medicines, medical supplies, means of shelter and energy infrastructure.⁵ The protection afforded these indispensable objects is subject to very limited exceptions, which arguably apply only in IACs and are qualified by stringent conditions. First, indispensable objects would forfeit their protection if they qualify as military objectives, but their loss may not be expected to result in starvation among the civilian population. Second, their protection could be derogated in case of a “scorched earth policy” in defence of national territory against invasion, but only to the extent that their loss is required by imperative military necessity.⁶

Humanitarian relief

The IHL rules on humanitarian relief regulate humanitarian access and facilitation of humanitarian assistance, as well as the protection of humanitarian relief personnel and objects. Beyond the dichotomy of international and non-international armed conflicts, the rules differ according to whether or not the situation is classified as a military occupation. Rules on humanitarian relief are cross-cutting, as they address a party’s obligations towards persons in its power and in that of the enemy, and impact both the conduct of hostilities and the treatment of persons in the power of a party to the conflict. Humanitarian assistance consists of food, water, medical supplies, clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population and objects necessary for religious worship.⁷

Conditions for humanitarian relief

The primary responsibility for meeting the needs of the population lies with the party in whose power the civilian population and other protected persons are.⁸ When this is not sufficient and the civilian population remains inadequately supplied, impartial humanitarian organizations or third States may offer humanitarian assistance, which must be impartial, humanitarian and conducted without adverse distinction.⁹ At this juncture, different scenarios may arise depending on the classification of the armed conflict.

In the context of belligerent occupation, the Occupying Power is obliged to agree to relief schemes on behalf of the population, and to accept the passage and delivery of relief consignments, subject to its right of control. ¹⁰ In all other cases, humanitarian relief is subject to the consent of the parties concerned, which cannot arbitrarily withhold it.¹¹ In IACs, the required consent includes that of the State on whose territory the assistance is to be delivered, as well as that of the adversary State and of the third State(s) on whose territory the assistance must traverse or from which it is initiated. ¹² In NIACs, the wording of the relevant provision suggests that only the consent of the territorial State is required. This would mean that, if the government withholds its consent, the consent of the armed group would be insufficient, even for areas not controlled by the government.¹³However, in the view of many non-governmental organizations (NGOs) and experts, cross-border operations can be carried out even without the consent of the government of the territorial State, as long as the neighbouring State adjacent to the territory, and the armed group controlling the territory, have given their consent.¹⁴ Once consent has been given, the parties concerned are required to allow and facilitate the rapid and unimpeded passage of humanitarian relief, subject to their right of control.¹⁵

In no situation (be it belligerent occupation, IAC or NIAC) could the right of control be exerted in a way that unduly delays implementation of humanitarian relief operations or makes them impossible.¹⁶

Humanitarian relief personnel The presence of humanitarian relief personnel, which is required to deliver humanitarian assistance in practice, is also subject to the approval of the territorial State. Once approved, relief personnel, as well as humanitarian relief objects, must be respected and protected, and their work must be facilitated.¹⁷ Humanitarian workers, however, are subject to the legislation and security requirements of the territorial State, which can terminate their mission or prosecute them if they do not comply with their mandate or the conditions imposed upon them.¹⁸ Regardless of approval, humanitarian relief personnel and objects benefit from the same general protection as, respectively, civilians and civilian objects, and humanitarian relief objects might fall within the category of objects indispensable to the survival of the civilian population and be protected as such.¹⁹

1
Art 54(1) AP I; Art 14 AP II; ICRC Customary IHL Rule 53: ‘Starvation as a Method of Warfare’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule53
2
ICRC, Commentary on AP I, para 2087–2088
3
ICRC, Commentary to Customary IHL Rule 53: ‘Starvation as a Method of Warfare’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule53
4
Art 54(2) AP I; Art 14 AP II; ICRC, Customary IHL Rule 54: ‘Attacks against Objects Indispensable to the Survival of the Civilian Population’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule54
5
ICRC, Commentary to Customary IHL Rule 54: ‘Attacks against Objects Indispensable to the Survival of the Civilian Population’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule54
6
Art 54(3) and (5) AP I; ICRC, Customary IHL Rule 54: ‘Attacks against Objects Indispensable to the Survival of the Civilian Population’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule54
7
See Art 23 GC IV; Art 69(1) AP I (applicable to occupied territory) to which Art 70(1) AP I (applicable to non-occupied territory) refers
8
Arts 39(2), 55(1), 76(1), 81(1) and 89 GC IV; Arts 15 and 26–27 GC III; Arts 69(1) and 70(1) AP I; Arts 5(1)(b) and 18(2)AP II
9
Art 23 GC IV; Art 70(1) AP I; Art 18(2) AP II. See also ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment (Merits), ICJ Reports 1986, para 242
10
Art 59(1) GC IV; Art 69(1) AP I
11
Art 70(1) AP I; Art 18(2) AP II; ICRC Customary IHL Rule 55: ‘Access for Humanitarian Relief to Civilians in Need’, https://ihl-databases.icrc.org/en/customary-ihl. See also Principle 25(2), UN Guiding Principles on Internal Displacement, annexed to UN Economic and Social Council, ‘Report on the Representative of the Secretary-General, Mr Francis M. Deng’, UN Doc E/CN.4/1998/53/Add.2, 1998; D. Akande and E-C. Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflicts’, OCHA, 2016, para 49. Denial of consent is arbitrary notably when it violates any of the refusing authorities’ obligations under IHL or international human rights law; however, when consent is arbitrarily withheld, IHL does not foresee a right to access. M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn, 2024), paras 10.240–10.244
12
ICRC, Commentary to Customary IHL Rule 55: ‘Access for Humanitarian Relief to Civilians in Need’, https://ihl-databases.icrc.org/en/customary-ihl; D. Akande and E-C. Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflicts’, OCHA, 2016, paras 23 and 104-105
13
Art 18(2) AP II; ICRC, ‘ICRC Customary IHL Q&A and Lexicon on Humanitarian Access’, 96 IRRC (2014) 359, p 39
14
M. Bothe et al, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff (2nd edn, 2013), p 801; N. Nishat, ‘The Right of Humanitarian Initiative of the ICRC’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), p 502; M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn, 2024), paras 5.184 and 10.239. See also Letter by 16 pre-eminent international jurists, ‘There is Still No Legal Barrier to UN Cross-Border Operations in Syria Without a UN Security Council Mandate’, 2023, https://www.theguardian.com/world/2014/apr/28/no-legal-barrier-un-cross-border-syria; ‘Cross Border Aid into Syria is Legal’, https://www.crossborderislegal.org/; American Relief Coalition for Syria, ‘2014 is Not 2022: Why the Continuation of UN Coordinated Cross-Border Aid Into Syria Absent a UN Security Council Resolution is Lawful’, 2022, https://arcsyria.org/sites/default/files/2022-11/ARCS%20XBHA%20Full%20Report.pdf
15
Art 125(2) GC III; Arts 23, 59(3)–(4) and 142 GC IV; Art 70(3) AP I; ICRC, Customary IHL Rule 55: ‘Access for Humanitarian Relief to Civilians in Need’, https://ihl-databases.icrc.org/en/customary-ihl. See also D. Akande and E-C. Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflicts’, OCHA, 2016, paras 59–72
16
Arts 23 and 59(3) GC IV; Arts 70(2) and (3)(a)–(b) AP I
17
Art 59(3) GC IV; Arts 70(4) and 71(1)–(3) AP I; ICRC, Customary IHL Rule 31: ‘Humanitarian Relief Personnel’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule31; ICRC, Customary IHL Rule 32: ‘Humanitarian Relief Objects’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule32; ICRC, Customary IHL Rule 55: ‘Access for Humanitarian Relief to Civilians in Need’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule55
18
Art 71(4) AP I; ICRC, Customary IHL Rule 56: ‘Freedom of Movement of Humanitarian Relief Personnel’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule56. However, they shall never be punished for carrying out medical activities: Art 16(1) AP I; Art 10(1) AP II
19
On the protection of civilian population and objects, see arts 51 and 52 AP I as well as ICRC Customary IHL Rules 1 and 7. On the protection of objects indispensable to the survival of the civilian population, see Art 54 AP I as well as ICRC Customary IHL Rule 54