Humanitarian negotiations: Constraints on humanitarian space and the challenges of compliance with IHL

27 April 2014

A number of current armed conflicts serve as an unfortunate reminder of the narrow influence humanitarian actors can have with parties to a conflict to ensure respect for the protection of civilians and to facilitate access for impartial humanitarian assistance. They also underline the limited effectiveness of existing global mechanisms to ensure compliance and accountability in the face of serious violations of international law.

In Syria, the second report of the UN Secretary-General on the implementation of Security Council Resolution 2139 details how medical supplies have been prevented from reaching rebel areas, medical staff and facilities are still being targeted, the government continues to refuse cross-border access through rebel-controlled crossings, and bureaucratic impediments have not been eased. Food deliveries have increased – including to several previously inaccessible areas – but a leaked WFP report indicates that the majority of assistance has been restricted to government-controlled areas. While the report of the Secretary-General makes it clear that “none of the parties to the conflict have adhered to the demands of the Council,” further UN Security Council action is being held hostage to political rivalries between council members who seem to have given up on the prospects for a Geneva III peace conference.

In South Sudan, the existence of strong civil-military coordination mechanisms, productive relationships with all sides and Ground Rules with SLPA commanders have similarly not prevented a lack of respect for humanitarian space. Organizations must mount a sizable aid operation to meet the needs of almost one million IDPs and preposition supplies before the rains renders access via roads to large parts of the country impossible. Failure to do so threatens to result in famine. Yet despite the urgency, according to the UN Humanitarian Coordinator, “restrictions on movement especially cross-line by road, forcible seizures of assets, and other interference hinders the delivery of aid.” Little political support has been given to the fragile peace talks, with international efforts limited to the recent UN, U.S. and EU Call for Action on South Sudan that addresses funding, protection, and access issues, but fails to address the underlying cause of the conflict and humanitarian concerns.

The recent displacement of tens of thousands in Darfur, the expulsion or suspension of operations of a number of agencies by Sudanese authorities, and concerns about UNAMID’s ability to fulfill its mandate have gone largely unnoticed by the international community. Hostilities in Yemen, the Democratic Republic of the Congo and Nigeria have also failed to elicit an effective international response, while it is still unclear if the newly approved peacekeeping mission for the Central African Republic can stem the tide of inter-communal fighting. Indeed, while protection has become a major component of humanitarian action, a recent report by ODI aptly describes the “protection gap” between norms and practice.

The unwillingness of states and armed non-state actors (ANSAs) to respect and ensure respect for international law has provoked a number of responses within the humanitarian community. The UN Security Council deadlock over Syria has sharpened calls by some organizations for cross-border operations without state consent, but many large UN and other agencies – as well as donors – continue to view governmental approval condicio sine qua non. A number of organizations are providing assistance via Turkey through “other channels.” However, the mounting pressure from the Syrian government on organizations to either halt such operations or end their work out of Damascus is increasing the potential risks facing field staff and operations.

In view of these challenges, several efforts are seeking to strengthen the ability of humanitarian actors to engage in effective dialogue with ANSAs around both protection and access issues. In December 2013, the ICRC held a conference on humanitarian dialogue with ANSAs, highlighting the impact of the changing nature of warfare on “humanitarian engagement” and the challenges in gaining access when the armed group has an antagonistic relationship with the population. This followed a similar conference in 2011 by Geneva Call, the International Displacement Monitoring Centre (IDMC), and the Norwegian Refugee Council (NRC) that sought to clarify the challenges relating to speaking with ANSAs and to identify innovative ways of gaining compliance with international norms. The Humanitarian Policy Group (HPG) also recently published a report on best practice in engagement, based on lessons learnt from Afghanistan, Sudan, and Somalia.

On the other hand, several efforts have been directed at improving State compliance with international law and the role of humanitarian actors in this process. The University of Oxford and the UN Office for the Coordination of Humanitarian Affairs (OCHA) are currently conducting a project on the “Guiding Principles on Law Relating to Relief Operations in Time of Armed Conflict,” seeking to clarify legal questions regarding arbitrary denial of access. Several documents from this project are in the process of finalization, although it is unclear whether they will be made public. Several conferences, including a Norwegian-led series on “Reclaiming the Protection of Civilians under International Humanitarian Law”, and, more recently, one organized by the International Institute of Peace and Médecins Sans Frontières (MSF) titled “Is Humanitarian Law Still Fit for Purpose,” explored the challenges and potential ways to improve compliance with the law. The International Committee of the Red Cross (ICRC), together with the Swiss government, has also started an initiative to strengthen compliance with IHL. After two consultative conferences with member states in 2011 and 2013, initial work has focused on periodic reporting on compliance, regular thematic discussions on IHL, and fact-finding mechanisms.

While encouraging, all of these initiatives seem to shy away from addressing what is arguable the fundamental issue: the need to strengthen the existing global mechanisms to ensure compliance with international law during armed conflicts, and meaningful accountability for violations.

 

About the author

Antonio Galli has extensive experience working in the field on issues of humanitarian policy and practice, with a focus on humanitarian access, protection, negotiations with non-state armed groups and civil-military coordination. He is currently working as a consultant for PHAP and UNDP.