1 Obligation and Entitlement to Act
1.1 Obligation to Ensure Respect of ihl
[t]here is disagreement as to the legal nature of the positive component of the duty to ensure respect by others because the content of the
obligation is not clearly defined and its concretization to a large extent left to the High Contracting Parties.4
This statement led to new discussions in the doctrine on the meaning of Common Article 1.5 In light of the recent discussions, the present book seeks to assess the scope of the duty “to ensure respect” under Common Article 1: For this purpose, first, the different views on the drafting history of the obligation will be shortly outlined (1.1.1). Secondly, the subsequent practices (1.1.2) by States, intergovernmental organisations and international tribunals will be highlighted. Finally, having established the existence of this external component of the obligation, it will be outlined that this is also applied in situations of non-international armed conflict (1.1.3) and what kind of obligations Common Article 1 requires or prohibits the High Contracting Parties to the gcs to undertake (1.1.4).
1.1.1 Views on the Drafting History
The icrc believes it is necessary to stress that if the system of protection of the Convention is to be effective, the High Contracting Parties cannot confine themselves to implementing the Convention. They must also do everything in their power to ensure that the humanitarian principles on which the Convention is based are universally applied (emphasis added).10
And during the Diplomatic Conference in 1949, Mr. Pilloud, speaking on behalf of the icrc, pointed out that
in submitting its proposals to the Stockholm Conference, the International Committee of the Red Cross emphasized that the Contracting Parties should not confine themselves to applying the Conventions themselves, but should do all in their power to see that the basic humanitarian principles of the Conventions were universally applied (emphasis added).
While Kalshoven argues that the authors used the word ‘universal’ to ensure respect for the gcs by all parties (especially in times of civil war or non-international armed conflict),11 Dörmann and Serralvo are of the opinion
“[t]hat the ordinary meaning of the term ‘universal’ used in the icrc remarks is particularly univocal and one can comfortably assert that, at least in the domain of international law, it means the very opposite of “domestic.”12
In this regard it is also to note, as Künzli mentions correctly, that Klashoven’s view relies only on the historical interpretation which is according to Article 32 of vclt a supplementary means of interpretation, that applies if the other methods of interpretation do not lead to a clear result and leave the meaning “ambiguous or obscure” or to a result that is “manifestly absurd or unreasonable.”14 In contrast, as a primary source for the interpretation of international treaties, Article 31 of vclt provides for a dynamic interpretation which, in addition to the interpretation on the wording and the object and purpose of a treaty, also takes into account any subsequent agreement and practice of the contracting States, and any relevant rule of international law applicable in the relations between the parties.15 In the following, it will therefore be shown that based on subsequent practice of the contracting parties (which is more relevant to the interpretation of the obligation under Common Article 1), it can be stated that even if not at the time of the adoption of the gcs, then at the latest afterwards, States have recognised the external component of the obligation to the ‘duty to respect’.
1.1.2 Subsequent Practice
It was not until 1968 that there was an explicit reference to obligations of non-belligerent States to enforce ihl: the United Nations International Conference on Human Rights in Theranreferred in the preamble to Resolution xxiii to theStates parties to the gc’s responsibility to “take steps to ensure respect of these humanitarian rules in all circumstances by other States, even if they are
every State party to [the Fourth Geneva 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.19
Also the Security Council and the UN General Assembly have repeatedly affirmed in their resolutions the existence of a legal obligation for third States to ensure respect for ihl in conflicts in which they are not involved.20 An important role is further played by the icrc which consistently emphasised in its practice the external aspect of Common Article 1 and has also (confidentially and publicly) encouraged States, which were not party to a conflict, for example to use their influence in order to ensure respect for ihl.21
Further, an acceptance of an obligation of third States to ensure compliance with ihl can also be established by practice of individual States. For example, during the armed conflict in Libya in 2011, many countries condemned
In the light of the practice, it is the prevailing doctrine that Common Article 1 of the gcs not only provides an entitlement but also an obligation vis-à-vis the non-participating third countries to ensure respect of ihl by conflicting parties.24 The author of the present book sees no reason to contradict this interpretation.
1.1.3 In Situations of Non-international Armed Conflict
Since Article 1 of the gcs refers to all Articles of the Conventions, including Common Article 3, it is unanimously understood that non-belligerent States also have in respect of non-international armed conflicts the duty to ensure respect of the ihl obligations.25 The icj confirmed this view in the Case of Nicaragua, and stated that the duty to ensure respect is a “general principle of humanitarian law” and applies therefore also in the scope of Common Article 3 of the gcs.26 However, ap ii does not have a similar provision, and since the wording in Common Article 1 clearly refers to the provisions of the Convention, an extension of the duty to ensure respect to ap ii cannot be justified.27 But since the obligation to provide humanitarian relief is also based on Common Article 3 (as outlined before), non-belligerent States have the obligation to
1.1.4 Nature and Content of the Duty to Ensure Respect
The duty to ensure respect for ihl is an obligation due diligence. The icj found in the Case of Bosnia and Herzegovina v. Serbia and Montenegro that the obligation to prevent genocide enshrined in Article 1 of the Genocide Convention as an obligation due diligence requires that States use “all means reasonably available to them” and that a State can be held under that obligation only responsibility if it has “manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide”. It further states that due diligence can only be assessed in concerto.29 Thus, what can be required of a non-belligerent State under the duty to ensure respect of ihl, has to be decided on a case-by-case basis. A relevant factor in this respect is for example the relationship between the wrongfully acting conflict party and the non-belligerent State. A State with close political, economic and/or military relations (e.g. through the equipping and training of armed forces or the joint planning of operations) with one of the parties to the conflict has therefore a strong obligation to ensure its ally’s compliance with ihl.30
In respect of the content of the duty to ensure respect, it is generally agreed since the Case of Nicaragua, that non-belligerent States are “under an obligation not to encourage” conflict parties to act in violation of ihl.31 Further, according to the general regime of State responsibility, non-belligerent States have by virtue not only the duty to ensure respect of ihl but also the obligation not to knowingly aid or assist in the commission of violations of ihl.32 Further, it includes also positive obligations, such as stopping ihl violations. It
1.2 Entitlement to Invoke State Responsibility
It is important to distinguish the obligation to ensure respect under Common Art. 1 to gcs from the right to act in case of violations of erga omnes obligations according to Art. 48 ilc Draft Articles on State Responsibility. Common Article 1 goes beyond an entitlement for non-belligerent States under ilc Draft Articles. It establishes not only a right, but an international legal obligation to act. Having said that, an entitlement under the ilc-Draft Articles on State Responsibility can nevertheless be relevant for non-belligerent States with regard to ihl breaches of another State, for example in situations where a breach concern ap ii. In respect of ap ii, non-belligerent State have (as mentioned before) no duty to ensure the respect. Thus, in this regard they require an entitlement to invoke the responsibility of the affected State. It is therefore examined if they could refer to an entitlement under Article 48 ilc-Draft Article (1.2.2). Further, where non-belligerent States intend to apply countermeasure, they must be an injured State. Here, non-belligerent States have therefore to prove that they are entitled under Article 42 ilc-Draft Articles as an injured State (1.2.3). But before these issues are addressed, the question of whether international organisations can also claim State responsibility (which is important for humanitarian organisations as mentioned before) is briefly explained (1.2.1).
1.2.1 Entitlement for International Organisations?
The ilc Draft Articles on State Responsibility concerns only the invocation of the responsibility by other States. They do not deal with the invocation of
1.2.2 Possible Grounds for Invocation
As mentioned before, the ilc Draft Articles on State Responsibility provide two possible grounds for States to claim the responsibility of another State: Article
1.2.2.1 Breach of Erga Omnes Obligations
According to Article 48(1) of the ilc Draft Article on State Responsibility “any State other than an injured State is entitled to invoke the responsibility of another State if the obligation breached is owed to the international community as a whole.” This provision is based on the idea that every State of the international community has a legal interest in the protection of certain fundamental rights and the fulfilment of related obligations, which are therefore owed erga omnes. In such cases, State responsibility may be invoked by any State even if it is not individually injured within the meaning of Article 42 of the ilc Draft Articles.39 A State which is entitled to invoke State responsibility under Article 48 is not acting in its individual capacity for having suffered damage, but in its capacity as a member of the international community and in the collective interest.40 The icj instanced as such collective interests “the outlawing of acts of aggression or of genocide,” or “the principles and rules concerning basic rights of the human person, such as protection from slavery and racial discrimination.”41
ihl obligations are considered erga omnes obligations, including those applicable in non-international conflicts. Therefore, due to the erga omnes nature of ihl obligations, any non-belligerent State is entitled to invoke the responsibility of the affected State on behalf of the international community as a whole in situations where consent to humanitarian assistance has been arbitrarily withheld in violation of the provisions of ap ii.42
1.2.2.2 Invocation as an Injured State
Non-compliance with erga omnes obligations may also harm the individual interests of a State if it is particularly injured by the breach of such an obligation, e.g. a coastal State is particularly affected by a breach of a collective obligation to protect the marine environment because it is directly exposed to
As outlined before, according to Common Article 1 of the gcs and ap i all States have to ensure the respect of ihl and the obligations are owed erga omnes to all States. However, Common Article 1 and the erga omnes nature of ihl obligations do not qualify all States per se as individually injured States by every violation of ihl.46 As Article 42 of the ilc Draft Articles on State Responsibility states, for obligations which are owed to more than one State it is further required that the breach either affects one State in a particular way which distinguishes it from other States to which the obligation is also owed or the obligation must be of such a nature that its breach injures every State to which the obligation is owed. The latter category includes obligations where each party’s performance is conditioned upon, so that a breach by one party changes the position of each party with respect to the performance of that obligation. Examples are obligations in a disarmament treaty or a treaty on nuclear-free zones.47
The obligation of the affected State to provide humanitarian relief is not of such a nature that it is conditioned and dependent on the performance of other States, so that a breach by arbitrary withholding of consent to relief operations would affect the position of all States. According to Sassòli ihl treaties do in general not fall within this category. He explains that the sole fact that ihl obligations are integral in the sense that they can only either be respected or violated towards all States do not qualify them per se as obligations where each party’s performance is interdependent.48 Otherwise, all erga omnes obligations could be considered as interdependent. It thus remains to be determined
According to current doctrine, other States are not considered to be injured when a State arbitrarily withholds its consent to the provision of relief on its territory.50 It is argued that the civilians who are not relieved are the injured parties, while the States wishing to take countermeasures are non-injured States.51 The author of this book doesn’t agree with this view. Even if the primary victims of withholding consent to humanitarian relief are civilians, practice has shown that situations of armed conflict and humanitarian crisis in one State can still have a particular impact on neighbouring States, for example through increased refugee movements. This is currently the case in Syria’s neighbouring countries, which host the largest number of Syrian refugees of any country in the world. About 5.5 million of the approximately 6.8 Syrian refugees living outside the country are registered in one of the neighbouring countries, such as Turkey, Lebanon, Jordan, Iraq, Egypt and other North African countries.52 Even before the outbreak of the armed conflict in Syria, these countries were considered to be the most densely populated refugee areas in the world. It is indisputable that the flow of refugees has increased as the humanitarian crisis in Syria has grown, putting enormous strain on the infrastructure, social services, economies and populations of neighbouring countries.53 The author of
1.2.3 Invocation of State Responsibility
1.2.3.1 Process of Invocation
Invocation of responsibility is not given by simply criticising a breach or protesting or calling the wrongful actor to observance of its international duties.55 Invocation requires moreover measures which are rather formal in their nature and involves further claims such as demand of cessation or reparation.56 What cessation and reparation could be in a situation of arbitrary withholding of consent has been already outlined before as possible consequences for the affected State in case of State responsibility. And possible measures to manifest those claims will be discussed later under possible non-judicial and judicial enforcement mechanism which are available to non-belligerent States to enforce their demands (see 2 and 3). It should be noted that what kind of measures non-belligerent States may or must take when violations of international law occur is unclear since there are no precise legal rules and the practice of non-belligerent intervention is not systematically recorded. But the duty to ensure respect of law under ihl indicates that a State must at least act in such a way. As Sassòli stated with regard to State responsibility, if only every State would systematically and regardless of other considerations invoke
With regard to the process of invocation of State responsibility, Article 43 ilc Draft Article states that the State wishing to invoke responsibility must give first a notice to the responsible State and call its attention to the situation.58 This requirement applies to the injured State according to Article 42 as well as to States invoking responsibility under Article 48. When giving notice of a claim, the concerned State may specify what conduct in its view is required of the responsible State to cease a continuing wrongful act or what form of reparation should be taken. However, such indications are not binding to the responsible State. The invoking State can only require the responsible State to comply with its obligations and demand for cessation or reparation, but the precise consequences of an internationally wrongful cannot be stipulated or defined by the injured State.59 In situations of arbitrary withholding of consent, the invoking States may therefore not demand that the wrongful State has to consent to relief operation, but only that it does not any further withhold consent to relief operation on arbitrary grounds.
1.2.3.2 Claim of Cessation and Reparation
Injured States in the sense of Article 42 ilc Draft Articles are entitled to all means of redress contemplated in the Draft Articles.60 In contrast hereto, States other than injured State which are entitled on the basis of a breach of an erga omnes can claim according to Article 48(2)(a) ilc Draft Articles from the responsible State “cessation of the internationally wrongful act, and assurances and guarantees of non-repetition.” The list given on possible claims in paragraph 2 of Article 48 ilc Draft Articles is exhaustive and is a more limited range of rights compared to those of injured States according to Article 42 ilc Draft Articles.61 Since such kind of States are considered as not injured in their right, they do not enjoy the same right as injured States to claim reparation on their own account. But Article 48(2)(b) provides for a not injured State nevertheless the possibility to claim reparation, if this is in the interest of an injured State or the beneficiaries of the obligation breached.62 This possibility
2 Non-judicial Mechanisms
Chapters 2.1 and 2.2 outline possible measures that non-belligerent States can adopt to fulfil their obligation to ensure respect of ihl or to invoke the responsibility of the State.
2.1 Possible Measures by the Non-belligerent State Itself
2.1.1 Diplomatic Talks and Mediation
In order to ensure respect of law, non-belligerent States could also use their political power and good relationship with parties to a conflict and conduct diplomatic talks to convince them to act in accordance with the law.64 Such diplomatic approaches can also be taken by States on request of the icrc, as outlined before, or as an act in compliance to a Security Council Resolution. The diplomatic path is a frequently used instrument by States as part of their political engagement to ensure freedom in the international community.
In the context of armed conflict, non-belligerent State have also the possibility to get engaged with consent of the conflict parties, into mediation and peace talks. The goal of such a discussion is to accomplish the end of the hostilities and conclude a peace agreement.66 However, mediation is not limited to the question of ending the hostilities, but often involves other conflict related problems. Humanitarian access is particularly an important subject in such talks since impediment and withholding of consent to humanitarian relief is often applied as a strategy of the warfare and constitutes therefore an essential part of the ongoing conflict. For that reason, regulations on humanitarian access are often found in ceasefire and peace agreements.67 In situations where a comprehensive consensus on important aspects of the conflict seems politically unlikely because of fundamental mistrust within the conflict parties (which is often the case), the mediation can also be limited on so called confidence building measures (cbms) where only certain, relatively less adverse topics are discussed. Some of the very first cbms used in the negotiating process, are typically humanitarian cbms where application of basic humanitarian principles is discussed.68 Thus, as mediators, non-belligerents States also
2.1.2 Retorsion, in Contrast to Suspension or Determination
Non-belligerent States could also react in response to an arbitrary withholding of consent to relief operations with retorsion. As an unfriendly, yet lawfully coercive measure, retorsion has the potential to put pressure on the wrongful acting party and to influence its behaviour positively. States also have, according to Article 60 of the Vienna Convention, the possibility to invoke the breach of treaty obligations by another State party as a valid ground for suspension or termination of the underlying treaty.69 But in contrast to retorsion, suspending or terminating the underlying treaties of the breached obligations, such as the Geneva Conventions or the human right treaties, will not exert any particular pressure on the wrongfully acting State to act in accordance to its obligations since this does not have a negative effect for the concerned State which finds itself in a non-international armed conflict. Retorsions are therefore more accurate responses for situations of arbitrary withholding of consent during non-international armed conflicts. Frequently applied retorsions in the context of armed conflict are, for example, severance of diplomatic or consular relations or reduction or withdrawal of aid programmes,70 or protesting or publicly denunciating the wrongful conduct of the concerned conflict party. Also, suspending voluntary material support could be a successful act of retorsion, depending on the importance of the respective support.71
It should be noted, that international law provides retorsion as a measure only against another State, it does not include actions against non-State armed groups since they are not considered as legal subjects of international law. This does not, however, preclude the factual possibility, that non-belligerent States, who are providing support to an opposing armed group without being involved as a party to the conflict, may in such situations nevertheless take unfriendly acts against those armed groups and suspend their support in order to provide pressure and influence their behaviour, even if it is not formally considered as an act of retorsion according to international law.
2.1.3
2.1.3.1 Right to Take Countermeasures in General
Under international law, non-belligerent States also have the possibility to take coercive measures which are unlawful in their nature in order to convince another State to act in accordance with its obligations. Such measures are considered as justified if they are applied as countermeasures in response to a prior internationally wrongful act of another State, or if they procure cessation and reparation from the responsible State and are proportional and not excessive in relation to the act which has promoted the response.72 Countermeasures are also explicitly mentioned in the ilc-Draft Articles on State Responsibility as a ground of justification for unlawful actions of States (Article 22 and 49 ff. ilc Draft Articles).73 Countermeasures can also be taken by international organisations under similar conditions as States.74 In the case of international organisations, it is further required that the taken countermeasures are not inconsistent with the internal rules of the organisation.75
Like reprisals, countermeasures are an instrument of law enforcement under international law. As such, they are not looked at as measures which can be taken by States in relation to non-State armed groups. However, non-belligerent States can nevertheless take actions in response to wrongful acts or threats of non-State armed groups which are in nature similar to the forms of countermeasures which can be taken against States, even though not under guise of countermeasure. International sanctions are a particularly popular form of action which is taken by the international community in situations of significant breaches of law by non-State armed groups. There will therefore be a brief digression later on the subject of international sanctions against armed groups.76
2.1.3.2 Countermeasures for Breaches of Erga Omnes Obligation
According to Article 49 in conjunction with Article 42 of the ilc Draft Articles on State Responsibility, injured States are entitled to take countermeasures. Since in situations of arbitrary withholding of consent during
The ilc Draft Articles on State Responsibility left for such situations therefore in Article 54 ilc a potential entitlement for other than injured States to take measures. Article 54 of the ilc Draft Articles states that the chapter on countermeasures in the ilc Draft Articles does not prejudice the right of any State which is entitled to invoke State responsibility by virtue of Article 48 ilc Draft Articles, “to take lawful measures against the responsible State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.”79 However, in 2001, at the time of the adoption of the Draft Articles on State Responsibility, the ilc concluded in its commentary that it could not determine with certainty whether an entitlement to adopt countermeasures in the interest of individual beneficiaries or an injured State by other States was recognised by the international community.
Since then, there have been serval instances where States have taken countermeasures in response to violations of erga omnes obligations.81 Today, it is concluded in the doctrine that there is extensive evidence for State practice and opinion juris in support of a right for a State other than the injured one to take countermeasures in collective interests as an integral part of customary international law.82 It can therefore be argued that today non-belligerent States which are not injured through arbitrary withholding of consent to relief operations but entitled to invoke a State’s responsibility by virtue of Article 48 ilc Draft Articles can nonetheless (on the basis of Article 54 of the Draft Articles) take countermeasure to ensure cessation and reparation from the responsible State in the interest the affected civilians or a neighbouring State which may be injured but not able to act by itself.83 It is important to note that such an understanding does not intend to open the door to any illegal acts for States. As countermeasures, they must strictly adhere to the before-mentioned requirements for a justified countermeasure and show clearly that it is taken in the interest of the injured State or the affected civilians.
2.1.3.3 Forms of Countermeasures
Since no State has adopted until today countermeasures particularly in response to an arbitrary withholding of consent to relief actions, it is uncertain as to what kind of measures could be appropriate in such situations.84 The Oxford Guidance proposes that the conduct of humanitarian relief without
2.1.3.4 Excursus: Sanctions against Armed Groups
Sanctions, particularly freezing of foreign assets, armed embargoes and travel bans are also often measures applied against non-State armed groups and their members as a response to international criminal acts, grave breaches of human rights or terrorism.91 Blacklisting specific armed groups as terrorist organisations have become a particularly popular method since 9/11. Such sanctions are often applied by supranational institutions such as the UN or EU
It is acknowledged that in order to harm an armed group, one cannot rely solely on military action. The conditions which allow the armed group to flourish, such as their funding, must also be tackled. International sanctions against non-State armed groups aim therefore to limit funds, arm access and the movement of the armed group. This will, on one side harm, and curtail the military capability of the armed group and discourage the members of the group so that they are put under pressure to act in accordance with law. On the other side, such measures will indirectly penalise those actors who are assisting such groups in breaking international law. This can influence the business behaviour of those actors who will also affect indirectly the non-State armed group.94
International sanctions have proved to be hugely significant and effective in practice. Sanctions seem to be, therefore, a promising coercive measure for situations of arbitrary withholding of consent to relief. They are further also a viable alternative to other actions which would urge non-belligerent States to operate within the sovereign territory of a State, like for example the provision of relief without consent of the concerned State which is highly controversial and undesired as outlined before. However, despite the advantages sanctions may have, it has to be kept in mind that sanctions against non-State armed groups can also have negative effects. Sanctions can, for example, lead to a greater violence during conflict because the affected State may see international sanctions against the armed group as a justification and validation to use harsher methods against that group.95 The non-transparent process
It would go beyond of the scope of the present book to discuss indepth all possible detrimental effects sanctions may have and how they should be faced. It is important to note, however, that non-belligerent States must take those contra effects into their consideration when they apply a sanction regime and try to avoid indirect harms or at least keep them as low as possible. It should be further noted that even though sanctions have an important function as law enforcement instruments, their reach is also limited outside the international economic and political sphere. For a comprehensive approach, such coercive measures are therefore often accompanied by additional measures such as judicial enforcement against non-State armed groups at a national and/or international level.98
2.1.4 Interferences
An often-discussed question in the context of grave violations of human rights and humanitarian law in situations of non-international armed conflicts is the possibility for non-belligerent States to interfere without the consent of the affected State. In this regard, the most discussed concepts are the humanitarian intervention (4.1) and the responsibility to protect (short R2P, 4.2).
2.1.4.1
Humanitarian intervention is an armed intervention of one or more States in another State in response to grave violations of human rights and/or of international humanitarian law in, for example, cases such as genocide.99 Humanitarian intervention is in conflict with the principle of sovereignty and the prohibition of non-interference. The doctrine of humanitarian intervention is therefore even today a controversial subject.100 The UN Security Council officially authorised in 1990 for the first time a military intervention in Iraq in reference to the human rights situation of the Iraqi civilians based on Chapter VIIof the UN Charter.101 Humanitarian intervention is, however, not an official instrument of the UN Charter.102 Humanitarian intervention has been also applied without the authorisation of the UN Security Council by the nato for the intervention in Kosovo in 1999, the legitimacy of which was, and still is, highly contested.103
In some cases, humanitarian intervention was applied in the past in order to ensure the provision of humanitarian relief in situations where relief convoys came under attack.104 However, even though humanitarian interventions have a humanitarian objective, the applied military force in humanitarian interventions are in contrast to the principles of humanitarian relief.105 While military interventions are led by political motives and are by nature ‘highly selective and inequitable’,106 humanitarian relief, on the other hand, has to respect principles such as neutrality, impartiality and independence.107 Involvement of
Against that background, it is questionable as to how effective humanitarian intervention can be as a remedy for situations of arbitrary withholding of consent. Since the application of military enforcement has the potential to influence the perception of relief actions, humanitarian intervention entails also a risk for the genuine protection of relief actions.112 Military intervention
2.1.4.2 Responsibility to Protect as a Ground for Non-military Interference?
The doctrine of ‘Responsibility to Protect’ (in short: R2P) was developed as an alternative to the concept of humanitarian intervention and shall in contrast to humanitarian intervention also include non-military interferences.117 It is therefore questionable whether R2P could serve non-belligerent States as a legal ground in situations of arbitrary withholding of consent to relief
The idea of R2P was articulated the first time in 2001 by the International Commission on Intervention and State Sovereignty. In 2005, the concept was endorsed by the United Nations in the ‘World Summit Outcome Document’ where representatives of the then 191 members States of the UN agreed to it. According to R2P, all States have the responsibility to protect their populations from grave international crimes such as genocide, war crimes, ethnic cleansing or crimes against humanity and are supported in this by the international community. Where the concerned State is unable or unwilling to protect its people against such grave human rights breaches, the responsibility to protect those civilians shall shift to the international community. Thus, R2P aims to provide a legal basis to intervene in the territory of another State to prevent or stop human rights violations of the civilians through grave international crimes.
From 2005 on, certain progresses have been made regarding R2P. In 2006, for example, the Security Council unanimously adopted the Resolution 1674 (2006) on ‘the Protection of Civilians in Armed Conflict’, in which it expressly referred to the R2P.118 In the Security Council Resolution 1706 (2006) for sending of UN peacekeeping troops to Darfur, the Security Council made a reference to Resolution 1674 (2006) in the Summit Outcome Document.119 Further, the UN Secretary-General has appointed a Special Adviser on the Prevention of Genocide and a Special Adviser to the Secretary-General with a focus on the R2P.120 However, despite apparently growing consensus on the existence of a responsibility for the international community to act to protect civilians, there still seems to be a lack of consensus within the international community when it comes to the actual application of the concept of R2P. For example in 2007, a Security Council resolution on the situation in Burma was vetoed by China and Russia arguing that the situation in that country “did not pose a threat to peace and security in the region, and that the internal affairs of the state did not have a place within the Security Council.”121 UN Security Council Resolution 1769 (2007), which authorised the deployment of a un-au force in Darfur did not
There was a glimmer of hope when, in March 2011, the Security Council adopted Resolution 1973 (2011) on Libya, the first military intervention to protect the civilian population with reference to the R2P. However, after Libya, there were no similar responses of intervention on the basis of R2P by the Security Council or the international community in general in respect to other, similar crises like for example in Darfur, Somalia, Burma or the Democratic Republic of Congo. And even though the international community has agreed in several situations on the fact that the conflict in Syria has taken an unacceptable toll on its affected civilians, there have been until today no interferences in reference to R2P. It is therefore to conclude, that the doctrine of R2P did not yet crystallise into a consistent and recognised legal ground for interferences in another State.124 Further, it should also be noted that R2P’s aim is to prevent grave international crimes. However, situations of arbitrary withholding of consent can, as mentioned before, also be given when there are no grave international crimes committed. R2P has therefore a different scope than the prohibition of arbitrary withholding consent. Thus, even if R2P would be a consistent and internationally recognised legal ground for interferences, it would be applicable only in particular situations of arbitrary withholding of consent, namely where the withholding constitutes a grave international crime.125
In view of the unstable practice coupled with the limited scope for potential application, the present book doubts that R2P can effectively serve in practice as a valid ground for non-belligerent States to provide relief in situations of arbitrary withholding of consent as a form as a non-military interference in the territory of the concerned State.126
2.2
2.2.1 Duty to Cooperate
An act with the goal to ensure respect of international law is more effective if it is not only taken up by one or several States, but enjoys the political support of many States. Cooperation of States through international organisations such as the UN are therefore important and frequently used tools by States in order to apply joint measures.127 A duty to cooperate with the UN is explicitly recognised in Article 89 of ap i, which provides that in situations of serious violations of the Conventions or of that Protocol, States shall act “jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”128 According to Article 1(3) of the Charter of the UN129, promoting and encouraging respect for human rights and fundamental freedoms is a vital purpose of the UN.130
Although the duty to cooperate is mentioned in Article 89 ap i in the context of international armed conflicts, it is not limited to these situations, as similar formulations can be found in other international treaties. For example, Draft Article 4(1) on State responsibility stipulates that “States shall cooperate to bring to an end through lawful means any serious breach” of an obligation arising under a peremptory norm of international law.131 A duty for States to cooperate with other States within the UN can be further found in Article 56 of the UN Charter which states that cooperation of States is required for the achievement of universal respect of human rights and fundamental freedom.132 Accordingly, the duty to cooperate can be understood as a general duty that can be invoked in all situations, including non-international armed conflicts, when there is a serious breach of law, which is undoubtedly the case in the arbitrary withholding of consent to humanitarian relief.
UN bodies which enable States to apply joint measures are the Security Council (2.2.2) and the General Assembly (2.2.3). Further, human rights bodies such as the Human Rights Council (2.2.4) and Human Rights Treaty Bodies
2.2.2 UN Security Council
2.2.2.1 Resolutions in General
The Security Council has according to Article 25 of the UN Charter the possibility to adopt binding resolutions to the Member States, particularly on the basis of Chapter VII of the Charter as a response to threats and breaches of peace.136
By having the primary responsibility for the maintenance of international peace and security (under Articles 24 and 39 of the UN Charter), the Security Council must convene particularly at a time when there are grave breaches of ihrl and ihl. In this respect, the Security Council has called on several occasions upon the parties to non-international armed conflicts, States as well as non-State armed groups, to respect their obligations under ihl and ihrl, and condemned existing violations of law,137 imposed sanctions on high-level
In the vast majority of resolutions in which the Security Council has addressed the denial of relief in response to a particular armed situation, it has called upon the parties to the conflict to put an end to this practice, with the intention of exhorting them to recognise the need for relief and to allow for the delivery of humanitarian relief.141 The focus was to create security conditions and circumstances which enable the delivery of assistance.142
Where exhortation alone is ineffective, the Security Council also has the option of adopting enforcement measures in the resolution. For example, it can back up its call for access to assistance with the imposition or threat of sanctions under Chapter VII of the UN Charter.143 As a last resort, where peaceful means have been exhausted, the Council can also allow the use of military force to ensure the delivery humanitarian.144 To date, the Security Council has only on a small number of occasions adopted enforcement measures with regard to humanitarian relief operations.145 The Security Council has imposed targeted sanctions on armed groups and members of it for obstructing humanitarian activities or access to humanitarian assistance, for example
Although the Security Council has frequently addressed obstructions to humanitarian operations in its resolutions, up until 2014 it never required parties to the conflict to consent to such operations.150 For the first time, the Security Council adopted such a proactive approach in its Resolution 2139 (2014) in response to the humanitarian crisis in Syria by making a binding demand to the relevant conflict parties to consent to humanitarian relief.151 In the Resolution 2165 (2014) the Security Council went even further and decided that relief can be provided by the United Nations humanitarian agencies and their implementing partners without consent of the concerned conflict parties. Since then, no similar resolutions were adopted by the Security Council, and these resolutions are considered up until today as revolutionary.152 They will be discussed in depth in the following (see 2.2.2.2 and 2.2.2.3).
2.2.2.2 Resolution 2139 (2014): Obligation to Provide Consent
In response to the humanitarian crisis caused by the armed conflict in Syria and the continued denial of humanitarian access, particularly by the Syrian government to the north-eastern areas under the control of the Kurdish-led force, the Security Council unanimously adopted a more proactive approach than usual on 22 February 2014 with Resolution 2139 (2014): While “condemning all cases of denial of humanitarian access” and recalling to the parties “that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law”153 the Security Council made a binding call to the conflict parties in Syria and other relevant parties in the context of the conflict to “allow the delivery of humanitarian assistance,” particularly that they “allow rapid, safe and unhindered access for UN humanitarian agencies and their implementing partners, including across conflict lines and across borders, in order to ensure that humanitarian assistance reaches people in need through the most direct routes.”154 The Council further stressed “the need to end impunity for violations of international humanitarian law and violations and abuses of human rights,” and reaffirmed that “those who have committed or are otherwise responsible for such violations and abuses in Syria must be brought to justice.”155 However, the resolution only expressed the intention to take action in case of non-compliance, but refrained from mentioning any concrete enforcement mechanism or sanctions, in particular to avoid a veto by Russia, a permanent member and Syrian ally.156 The UN Secretary-General was requested to report to the Security
2.2.2.3 Resolution 2165 (2014) including Partial Renewal until Failure to Do So in 2023: Provision of Relief without Requirement of Consent
The UN Secretary-General reported in May and June 2014 that the requirements of Resolution 2139 (2014) had not been met by the parties to the Syrian conflict, and that arbitrary and unjustified withholding of consent to relief operations continued. He further stated that millions of people in need are in areas that are difficult or impossible for humanitarian actors to reach from within Syria, including in particular north-eastern Syria, which is mainly under the control of Kurdish forces.158 Based on these findings, the Security Council adopted a binding decision in Resolution 2165 (2014), authorising UN humanitarian agencies and their implementing humanitarian partners to provide assistance through four designated border-crossings from Turkey, Iraq, and Jordan “in order to ensure that assistance, including medical and surgical supplies, reached people in need throughout Syria through the most direct routes.”159 Although the resolution stipulated that the UN had to inform the Syrian authorities each time before delivering any assistance “in order to confirm the humanitarian nature of these relief consignments,”160 it represented a breakthrough in the existing concept of humanitarian relief, as it authorised humanitarian organisations to deliver the necessary relief directly through the aforementioned border crossings without requiring the consent and authorisation of the Syrian authorities.161 Again, the resolution affirmed the intention to take “further action” in the event of non-compliance, without mentioning
Resolution 2165 (2014) was renewed yearly in the following years up until 2020. In January 2020, however, Russia and China vetoed the Security Council’s draft for the renewal of Resolution 2165 (2014). The reason for this was – without going into much detail164 – that in October 2019, Turkey invaded Kurdish-controlled areas in north-eastern Syria and established a so-called “safe zone” along the border with Turkey, which was negotiated between Russia, Turkey, and the Syrian government. In the aftermath of this event, Turkey and Russia were more interested in ensuring that aid to north-eastern Syria was delivered through Turkey’s new “safe zone,” where Turkey could control the delivery of relief to Kurdish-held areas, and wanted to eliminate border crossings by States other than Turkey.165 Consequently, in January 2020, only the two former border crossings from Turkey into north-western Syria (Bab al-Hawa and Bab al-Salameh) were approved under Security Council Resolution 2504 (2020). The border crossings from Jordan (Al Ramtha) into southern Syria and from Iraq (Al Yarubiyah) into north-eastern Syria, as provided for in Resolution 2165 (2014), were no longer included, leaving millions of people in Syria without access to international humanitarian assistance. The updated Resolution was then set to expire after six months (instead of one year as before) on 10 July 2020.166
On 11 July 2023, the Council ultimately failed to adopt a reauthorisation. The draft submitted by the co-penholders (Brazil and Switzerland), which provided for a nine-month extension of the Bab al-Hawa crossing,171 was vetoed by Russia. Russia’s alternative draft, which proposed a six-month extension of the crossing,172 received only two votes in favour.173 A major reason for this
Resolution 2165 (2014), and the process of its renewal and eventual failure, demonstrated once again that the Security Council relies on the goodwill of permanent members to pass politically contentious resolutions, and that political tensions among members can limit the Security Council’s ability to act. In addition, not all States are equally politically supportive of the possibility of waiving the requirement of consent for the provision of humanitarian relief. State sovereignty is held in very high regard, and the potential to undermine it through the provision of humanitarian relief without the consent of the affected State is viewed critically. The author of this book therefore questions whether, after this experience, the Security Council will ever again adopt a resolution similar to 2165 (2014) in another situation, or whether this will rather remain a one-off incident that showed that not all States are on the same page in this regard, at least not in the long term.
2.2.2.4 Resolution 2417 (2018): Condemning Unlawful Denial of Humanitarian Access and the Starvation of Civilians in a Thematic Resolution
With Resolution 2417 (2018), the Security Council adopted on 24 May 2018 its first thematic resolution on hunger and food insecurity in armed conflicts. Resolution 2417 (2018) was adopted unanimously and is part of the Security Council’s broader action in the area of ‘protection of civilians’, in which the Council systematically addresses a range of topics relevant to the effective protection of civilians in situations of armed conflict.175
However, the issue of hunger and food insecurity in armed conflict has received renewed attention due to the suffering of civilians in armed conflicts such as in South Sudan, Syria, Yemen and north-east Nigeria. In February 2017, UN Secretary-General António Guterres called on Member States to act in the face of the threat of famine linked to armed violence and armed conflict in these countries.178 Several months of discussions, negotiations and preparatory work followed before the scepticism and reluctance within the Security
Regarding the link between armed conflict and food insecurity and the threat of famine, the Resolution emphasises in particular the importance of the unimpeded delivery of humanitarian assistance. For example, in preambular paragraph 3, the Council recognises that ongoing armed conflicts often hinder effective humanitarian action, “and are therefore a major cause of the current risk of famine.” In this respect, the Resolution recalls in its preambular paragraph 15 the obligations of the conflict parties under international humanitarian law to meet the humanitarian needs of the civilian population by allowing and facilitating the rapid and unimpeded passage of humanitarian
The last provision of paragraph 4 constitutes an innovative approach to dealing with situations of unlawful denial of access for humanitarian personnel respectively situations of arbitrary withholding of consent to relief operations:182 it encourages States and the Secretary-General to be proactive in informing the Security Council of such situations and provides an opportunity for the Council to act on the basis of such information. A general provision on reporting can also be found in operative paragraph 12, where the Council “requests the Secretary-General to report swiftly to the Council when the risk of the conflict-induced famine and widespread food insecurity in armed conflict contexts occurs and expresses its intention to give its full attention to such information.” However, as Zappalà noted correctly in his article on Resolution 2417 (2018), “this is an extremely mild form of commitment for the future to do something without any automaticity. There is no guarantee that the Council will do anything. Moreover, the Council, irrespective of paragraph 4, already had such power.”183 Furthermore, according to paragraph 4, only information on unlawful denials that “constitute a threat to international peace and security” will be considered. Thus, the Council’s willingness to act is limited to such cases, while it remains uncertain as to what kind of situations of unlawful
The Resolution does not only leave the question open “if” the Council will effectively react in situations where consent to relief is arbitrarily withheld, but also “how” it might respond. In preambular paragraph 16, the Council recalls its intention to mandate, where appropriate, UN peacekeeping missions “to assist in creating conditions conducive to safe, timely and unimpeded humanitarian assistance.” The Council does not, however, make any further commitment in this regard in the operative part, but with this recall, provides a reminder to actively consider such measures in situations where peacekeeping missions are mandated and there are impediments to assistance.185 The Council has also expressed similar intention in other resolutions.186 A possible reaction of the Council to arbitrary withholding of consent could be the adoption of sanctions. In operative paragraph 9, the Council “[r]ecalls that [it] has adopted and can consider to adopt sanction measures, where appropriate and in line with existing practice, that can be applied to individuals or entities obstructing the delivery of humanitarian assistance, or access to, or distribution of, humanitarian assistance,” which also includes situations of unlawful denial of relief actions. As zappalà also rightly points out here, this provision does not constitute a new possibility for the Council, it is again a power that the Council would have had even without Resolution 2417.187 But the fact that it is stated is important from a political point of view and demonstrates
In operative paragraph 5 the Council further “[s]trongly condemns the use of starvation of civilians as a method of warfare” and recalls that it is “prohibited by international humanitarian law.” Here again, the Council does not further elaborate on what the consequences might be at the international level for those who use starvation as a method of warfare, for example by deliberately and unlawfully obstructing humanitarian assistance.189 Only in the preamble does the Resolution refer to the fact that starvation of civilians may amount to a war crime. It should be noted that the Resolution does not distinguish between starvation in international and non-international armed conflicts, while the Rome Statute has for a long time considered only the latter to be a war crime.190 Given the circumstance that within the Council there are States (such as China, Russia and the United States) that have not ratified the Rome Statute, it is also understandable that the Council did not make any reference or distinction on the basis of the Rome Statute.191
With regard to the possible consequences of unlawful situations, the Resolution rather reiterates the responsibility of the international community. In operative paragraph 8, for example, the Council urges States “with influence over parties to armed conflict to remind them of their obligations under international humanitarian law.” In doing so, the Council echoes the already existing obligation of States “to ensure respect” for ihl under Common Article 1 of the gcs192 and emphasises the fact (which has already been mentioned in this book) that certain States may have particular influence over parties to a conflict, either because of their economic power or because of their involvement in the conflict. By explicitly urging such States to take action, the resolution
Thus, in summary, it can be concluded that Resolution 2417 (2018) does not establish new powers for the Council, nor responsibilities or measures for parties to a conflict in situations of arbitrary withholding of consent to humanitarian relief operations. However, it does contain certain (politically) important statements. One of the merits of the Resolution is that it recognises the link between armed conflict and food insecurity, and that this can lead to threats to peace and security.194 In addition, by dealing with the issue in a thematic resolution, the Council provides a document that expresses the Council’s views independently of a specific conflict situation.195 Another achievement of the Resolution is certainly the active encouragement of States and the Secretary-General to report situations of arbitrary withholding of assistance, and the reminder of the duty of the international community to act, in particular States with influence over parties to conflict, and to investigate situations of starvation within their domestic jurisdiction. The Resolution implies a proactive role for the international community in situations where relief is arbitrarily withheld. And although no specific measures are provided for, the Resolution is a recognition that further action could be taken in specific situations.196 So far, however, the Security Council has not implemented this Resolution to act against parties to a conflict for arbitrarily denying humanitarian access to civilians or using starvation as a method of warfare.
2.2.2.5 Alternative to Resolutions: Presidential Statement
Finally, it is briefly mentioned that in situations where the necessary consensus for a resolution cannot be achieved or is vetoed by a permanent member of the Council, an alternative could be the adoption of a Presidential Statement by the sitting President of the Council on behalf of the Members. Although Presidential Statements also require consensus, the necessary consensus is
2.2.3 UN General Assembly
The General Assembly has expressed on several occasions its concerns about access to humanitarian relief. A landmark resolution of the Assembly in this regard was the Resolution 46/182 in 1991, in which the Assembly called on States whose population are in need of relief to facilitate the work of humanitarian actors in implementing relief assistance.200 Since then the General Assembly has adopted numerous thematic resolutions on humanitarian assistance.201 For example, as a reaction to increasing attacks on humanitarian personnel, the General Assembly adopted in December 2018 four thematic resolutions on coordination of humanitarian and disaster relief aid, inter alia the resolution on “strengthening of the coordination of emergency humanitarian assistance of the United Nations” in which the ga encouraged Members States “to ensure
2.2.4 UN Human Rights Council
As an inter-governmental body responsible for strengthening the promotion and protection of human rights, the Human Rights Council can address any situations of human rights violations which require particular attention of the international community, thus also situations of arbitrary withholding of consent to relief operations.204 Even though the focus lies on human rights standards, the Human Rights Council takes in its work, as mentioned before, also possible breaches of ihl norms into account.205 For example, circumstances of arbitrary withholding of consent can be invoked by States within Universal Periodic Review (upr) processes of the Council (2.2.4.1). Further, the Council can also apply special procedures such as special rapporteurs or representatives, independent experts or working groups that “monitor, examine, advise and publicly report” on situations of arbitrary impediment of relief (2.2.4.2).206 Finally, the Council also has the possibility to assess the withholding of consent as arbitrary in the case where individuals complain about an impediment of relief as a human rights violation before the Council. The possibility
2.2.4.1 upr Process
The upr process is similar to the treaty monitoring mechanism which is outlined later. Reference is therefore made to what is said there. Particularly noteworthy in the context of the upr Process, however, is the fact that in the past, in situations where relief was impeded in the State under review, States have pointed this out and made recommendations to the reviewed State to enable the effective and timely delivery of relief.207 States did however not explicitly cite such situations as arbitrary or condemned them as breaches of ihrl and ihl. An explicit legal determination of the situation might have a greater impact on the reviewed State and can therefore be suggested for future reviews. The Advisory Committee could serve the Council in this respect with thematic expertise.208
2.2.4.2 Special Procedures
An important special procedure in the context of relief action is, for example the Special Rapporteur, on the right to food.209 He or she monitors how the right to food is implemented in the Member States, also in situations of crisis. To this end, the Special Rapporteur undertakes country visits and gets first-hand information on how the right to food is implemented and respected in a specific country. Through dialogues with relevant actors for example in
“In Yemen, for example, the World Food Programme has launched its largest ever emergency response as a result of the country’s ongoing civil war. However, 15.9 million people are experiencing hunger each day and this number could reach 20 million if humanitarian assistance is not delivered.” She further noted that “[h]umanitarian assistance (…) has become increasingly critical, but is subject to political manipulation.”211
Prosecution of starvation remains nearly non-existent, as it is usually committed during internal conflicts. As a positive development, in January 2020 the Assembly of States Parties to the International Criminal Court unanimously voted to amend the Rome Statute to recognise the crime of starvation in non-international armed conflicts.
The Human Rights Council could apply a new special procedure to report on situations of arbitrary withholding of consent as a thematic mandate.
2.2.5 UN Human Rights Treaty Bodies
There are three main procedures in human rights treaties which allow State parties, respectively the treaty bodies, to act in response to situations of serious and grave violations of human rights: namely, within the monitoring mechanism (2.2.5.1), by inter-State communication (2.2.5.2) or through an inquiry procedure (2.2.5.3). There is also the possibility for individuals to complain, which will be outlined later as a method for individuals to respond to situations of arbitrary withholding of consent.
2.2.5.1
All UN human rights treaties provide a monitoring mechanism that allows treaty bodies to periodically evaluate on a State party’s progress and difficulties in implementing the respective treaty.212 Monitoring mechanisms do not focus on individual cases, but take records of the overall legal situation in a State which is drawn up over a period of several years.213 Thus, situations of arbitrary withholding of consent to relief operations will be denounced as a violation of the respective human rights treaty within such a proceeding when it occurs systematically. In such cases, the treaty body not only has the possibility to constitute a breach of the treaty, but can also mention the provision of consent as a recommendation in the Concluding Observations. Some treaty bodies, such as the cescr and ccpr, have in the past expressed concerns in their Concluding Observation with regard to the impediment of relief provisions during armed conflicts. They have also underlined the aspect that this constitutes a breach of law, even though they do not always expressly mention that consent to relief has been arbitrarily withheld.214
The Committee expresses deep concern about allegations according to which during the last months of the armed conflict in 2009, civilians were deliberately deprived of food, medical care and humanitarian assistance which constitute violations of article 11 of the Covenant as well as of the international humanitarian prohibition of starvation and may amount to a war crime (art.11). In light of its general comment No.12 (1999) on the right to adequate food, the Committee draws the attention of the State party to the fact that the prevention of access to humanitarian food aid in internal conflicts constitutes a violation of article 11 of the Covenant as well as a grave violation of international humanitarian law.215
The Committee is (…) concerned at reports indicating that State party authorities have at times arbitrarily denied the timely access of life saving humanitarian assistance for civilian populations in some conflict-affected areas, particularly those controlled by rebel groups (arts. 2, 6, 7, 9 and 12). In light of the Committee’s previous concluding observations (…), the State party should: (…) Authorize and facilitate the timely and unrestricted access of humanitarian assistance to civilian populations in all conflict-affected areas in full compliance with the prohibition of arbitrary denial of humanitarian access.216
Concluding observations of treaty committees are often criticised as not being tough enough on States for human rights violations.217 Monitoring procedures are also not the most adequate mechanism for situations of arbitrary withholding of consent, since such situations require particularly rapid reactions which cannot be provided by a process that is performed periodically, several years apart.218 However, monitoring mechanisms are nevertheless considered as important instruments particularly for further development of the law.219 States take also comments made by the Committee seriously and may take efforts to apply the proposed recommendation.220 While the Committees do not have the power to enforce remedial action, States or private actors like ngo or individuals can use the public comments and recommendations of treaty bodies when they attempt to hold the concerned State accountable for its actions.221
2.2.5.2
Arbitrary withholding of consent can be invoked by States before a human rights treaty body as a violation of the human rights enshrined in the respective treaty. Such complaints can also be submitted by State parties who are themselves not injured.222 Most of the UN human rights treaties, including icescr and iccpr, set out the possibility of inter-State communications which allow State parties to complain to the relevant UN treaty body or an ad hoc Conciliation Commission about a violation of a treaty by another State party.223 Beside UN human rights treaties, most of the regional human rights treaties also know such procedures.224 The sequence of the process does however differ significantly depending of the concerned treaty body and will be not discussed here further. It should be noted that until today, no such procedure has been conducted before a UN treaty body.225 The doctrine mentions that a reason for this could be that filing such a complaint constitutes an unfriendly act. States may therefore fear political and economic consequences in the intergovernmental relationship. In addition, it is mentioned that such a complaint also entails an enormous procedural effort for the complaining State, since it must substantiate its complaint. This represents a great burden, especially for smaller States who do not have the necessary resources to carry out the complex investigations. Against this background, the invocation of States before the Human Rights Council appears to be a simpler alternative, where the necessary clarifications are made by a special rapporteur.226
2.2.5.3 Inquiry Procedure
It is also possible that in situations of arbitrary withholding of consent, treaty bodies initiate and conduct inquiries themselves in respect to the wrongful acting State party for violating the treaty. Almost all UN human rights
As a first step, the State concerned is asked for its opinion. The actual inquiry begins only if the allegations are not credibly refuted. The findings of the examination are confidentially transmitted to the concerned State party with further comments and recommendations. After about 6 months, the State party has to inform the Committee about the measures which it has taken in response of the recommendations.230 Hence, where the State has violated the treaty provision by withholding consent to relief arbitrarily, the State has to either respond by providing the required consent or at least explain why consent could still not be provided.
The inquiry procedure has so far only been used by the Committee against Torture.231 The reason for this could lie in the fact there is already a similar non-contractual procedure of the Human Rights Council, which doesn’t require the evidence for the breach of a specific treaty. On the other hand, the procedure has various weaknesses. For example, the consent of the State concerned is required when investigations must be carried out on its territory, which is essential to conclusively examine the merits of the complaint. In addition, the confidentiality of the procedure may not exert the desired pressure on the
2.3 Acting at the Request of the Conflict Parties
2.3.1 As Protecting Powers?
The Protecting Power mechanism was already incorporated in the 1929 Geneva Convention and was later consolidated and adopted in the 1949 Geneva Conventions and ap i.233 It is one of the few mechanisms which is provided by the gcs through which third parties may support conflict parties with compliance with ihl.234 Even though the Protecting Powers concept was designated with the aim of taking an important role for the implementation of ihl, in practice, however, Protecting Powers were rarely applied,235 questioning the potential applicability of the concept for situations of arbitrary withholding of consent.
A Protecting Power can be appointed in situations where the concerned States in conflict have suspended or terminated the diplomatic contacts with each other. A neutral State can then be called by a conflict party, with the agreement of the other conflict party, to safeguard its interests towards the other party and serve as an intermediary between them.236 The likelihood that the Protecting Powers regime could be applied in future in situations of arbitrary withholding of consent to relief operation during non-international armed conflict is not only small in view of the limited use of that regime, but also because it was not designated to be applied to situations of non-international armed conflict. It may be theoretically conceivable that the application of the Protecting Powers system could get extended to situations of non-international armed conflict.237 But one of the objections against such
2.3.2 International Humanitarian Fact-Finding Commission
Since establishing international courts or tribunals for breaches of ihl seemed to be for a long time an unrealistic demand, ap i introduced in 1977 the International Humanitarian Fact Finding Commission (hereafter: Commission) as a new mechanism which should enhance compliance with ihl.239 As it will be shown in the following, this system did not achieve the expected success as an ihl enforcement mechanism. But since it does not provide any particular rights to non-State actors to represent its interest, an evolvement of this mechanism for situations of non-international armed conflict seems (in contrast to the system of Protecting Powers) not to be excluded.
2.3.2.1 Competence of the Commission
The Commission is an independent and impartial body. It was established as a permanent international institution in 1991 pursuant to Article 90 of ap i and became operative in 1992 after the acceptance of its competence and rules by 20 States.240 Today, the Commission counts 77 Member States.241 Based on Article 90(2)(c)(i) ap i, the Commission is competent to enquire into any facts alleged to be grave breaches or other serious violations of the Geneva Conventions or of the ap i. The enquiry is conducted by a chamber of the seven members, who are not nationals of any party to the conflict. The chamber invites the parties to the conflict to assist in its enquiry und finally submits a report on its findings.242 The Commission may further use its good offices to make recommendations for promoting compliance with the Geneva Conventions and ap i (Article 90(2)(c)(ii) ap i).243 The Commission is not a
Even though the Commission’s mandate is based on ap i, which refers to international armed conflicts, the Commission has consistently declared that it would also carry out enquires in situations of non-international armed conflict.245 This understanding goes also along with the wording of Article 90(2)(c)(i) ap i which gives the Commission competence over the Geneva Conventions. This includes also Common Article 3 of the gcs and thus non-international armed conflicts.246 Since the formulation of Article 90 ap i does not include ap ii, some authors are of the opinion that the Commission may not be competent for non-international armed conflicts.247 In contrast, other authors go with the interpretation that the limitation given to non-international armed conflicts by Common Article 3 cannot be understood as the Commission not having the competence to asses violations of non-international armed conflicts in the sense of ap ii.248 Further, it is pointed out that a limitation doesn’t make sense in view of Article 90 ap ii which, as it will be outlined later, enable also an employment of the Commission on the basis of the consent given by the parties. It seems therefore reasonable to follow the view that the Commission may provide enquires in situations of non-international armed conflict, irrespective if the conflict is covered by Common Article 3 or ap ii. This understanding was also confirmed by the Commission’s first mandate in 2017, which took place in the context of a non-international armed conflict.249
Enquires of the Commission require according to Article 90(2) ap i, the consent of all parties involved. Art. 90 ap presents two possibilities on how parties can consent to the competence of the Commission. First, when the
There are also other shortcomings in the competence of the Commission. For example, the report on the findings will be published by the Commission only if all parties to the conflict agree. This constraint undermines the possible impact of the report on the prevention of further violations of ihl, since it is unlikely that States will change their behaviour based on a report that is not going to be published and will invoke critics and pressure from the international community.255 This is the case even though the obligation of the Commission on confidentiality does not preclude that one of the parties may publish the report on their accord. But even such a one-sided publication may involve some risks like, for example, the respective party not publishing the complete report.256 Thus, the Commission has disadvantages and challenges, which make it difficult for it to act as an effective body.
2.3.2.2 The Commission’s First Mandate
The Commission was mandated with an enquiry for the first time in May 2027. The Commission was requested by the osce to investigate the explosion of an osce vehicle which occurred in April of that year in Pryshy (Luhansk Province), an area in Eastern Ukraine which is controlled by rebels. The explosion caused the death of a paramedic and injuries to two monitors of the osce Special Monitoring Mission to Ukraine (smm). On 18 May 2017, the Secretary General of the osce and the President of the ihffc signed a memorandum of understanding between the two organisations, followed by a distinct agreement relating to the incident on an independent forensic investigation by the Commission. The purpose of the investigation was to establish the facts of the incident against the background of international humanitarian law. According to their mandate, criminal responsibility, and assessment of accountability for the explosion was outside the scope of the Commission’s investigation. The investigation was provided with the consent of the Ukraine government.
Until today, the legal basis for the Commission’s involvement in that case is controversial. It raised the question as to whether intergovernmental organisations such as the osce would fall under the scope of application of Article 90 ap i to request an enquiry. According to Article 90(2)(a) ap i, the competence to submit a request to the Commission is limited to the ‘High Contracting Parties’ such as member States and ad hoc consent can be provided according to Article
Despite the unsure legal basis, the Commission presented its report to the Permanent Council of the osce. The full report was only made available to the osce, while an Executive Summary of the report was published on the official internet site of the Commission in September 2017. The Commission undertook several investigative steps, including interviewing witnesses, inspecting materials and conducting a forensic medical analysis. In its report, the Commission finally concluded that it was unlikely that the smm was intentionally targeted given the circumstances of how the incident occurred. The explosion was identified as being more likely caused by a mine which was laid to target any vehicles passing by. Given the fact that any civilian vehicle which was heavy enough was able to trigger the mine, the Commission concluded that the placement of the mine was an indiscriminate and therefore unlawful usage of an anti-vehicle mine, according to international humanitarian law.259
2.3.2.3 Perspectives for Deploying the Commission in Practice
Since its first mandate in 2017, the Commission did not get any new requests. It seems that the first case of the Commission did not set the expected example for encouraging other conflict parties.
Even though the Commission may theoretically be able to perform enquires (also in situations of non-international armed conflict where the consent to relief operations is withheld arbitrarily), the requirement of consent of all
Even though there were and are other fact-finding missions established within the UN-System,260 the investigation of ihl violations does not belong to the core mandate of any other missions. They are mostly human rights commissions, and the composition of those commissions does not provide a ihl specialisation to assess violations of ihl.261 The Commission is the only fact-finding mechanism which is dedicated exclusively to inquiries of ihl violations. In addition, the inquiry of the human rights commission is fundamentally different to the one of the Commission. While the goal of the Commission’s inquiry is to conciliate and pacify, the human rights commissions rather condemn and provoke.262 The Commission is also, compared to judicial enforcement mechanisms, a rather “soft” instrument for ensuring compliance with ihl.263 The Commission provides solutions that are not offered by other fact finding or judicial institutions.264 It is therefore argued in the doctrine, that the Commission should keep its own room in the international enforcement system, even though it has not yet been active many times.265 However, in order to overcome its lack of activation in the past, the mechanism of the Commission has to be adjusted in some areas. The final chapter will therefore discuss whether the Commission can be made more effective so that it can contribute to the compliance with ihl, including in situations of arbitrary withholding of consent.
3
Non-belligerent States also have the possibility to pursue the judicial accountability of those who are responsible for the arbitrary withholding of consent. In this regard, it should be noted that within judicial enforcement, the courts and commissions establish only the infringement of the law and award restitutions. They do not (in general)266 order specific measures. Thus, that consent to relief actions shall be provided in a particular situation of arbitrary withholding of consent, cannot be pronounced by those courts. It is up to the State concerned to implement the judgement.
There are different forms of judicial enforcement for breaches of ihl and ihrl.267 However, not all are applicable to non-State armed groups. Namely, the jurisdiction of the International Court of Justice (3.1) and regional human rights courts (3.2) are limited towards States.268 Criminal Jurisdiction, in contrast, is also possible against members of a non-State armed group (3.3). Within the scope of the present book, the procedures of judicial organs will be (here and for the individual complaint procedures later) roughly outlined. Admissibility requirements which those procedures require will be treated only selectively.
Another possibility to hold States and non-State armed groups criminally accountable for their actions are international ad hoc tribunals. Such tribunals were set up by the UN Security Council under Chapter VI of the UN Charter following conflicts in Yugoslavia, Rwanda, Sierra Leone and Cambodia.269 Since the establishment of such tribunals is rare and it is expected that they will decrease than increase in future,270 they are not separately discussed in the present book. But cases where the icty had to deal with situations of denial of relief will be mentioned later in the context of the icc. Finally, also possible
3.1 International Court of Justice (icj)
The International Court of Justice (icj) is competent to examine breaches of obligations under international law. As an inter-State mechanism, questions of ihrl and ihl do not occupy a central place in the Court’s jurisprudence.273 Nevertheless, non-belligerent States (that are Members of the UN or States which have become parties to the Statute of the Court or accepted its jurisdiction under certain conditions) have the possibility to invoke the concerned State’s responsibility for arbitrary withholding of consent to humanitarian relief either by submitting an (unilateral) application or (together with the concerned State) submitting a bilateral notification before the icj. The judgment of the court is final and binding on the parties to a case, in which the Court can determine breaches of international law and compel the wrongful State to pay reparations towards the plaintiff State. It is also possible that UN organs (the UN General Assembly and the Security Council for any legal questions) and specialised agencies (only when the legal question falls within the scope of their activities) can request the icj for an Advisory Opinion on the obligation of a State with regard to the provision of relief and the arbitrariness of withholding consent to relief in general.274
While the icj has not yet made a substantive decision on the merits of the case, it did deliver its ruling on Myanmar’s preliminary formal objections to The Gambia’s application on 22 July 2022.277 The Court rejected the objections and upheld the Court’s jurisdiction and the admissibility of The Gambia’s application. In its judgment, the Court addressed, inter alia, Myanmar’s objection that The Gambia is not an “injured State” and had not established its individual legal interest in this litigation and therefore lacked standing under the Genocide Convention.278 Myanmar further argued that The Gambia lacked standing to assert
This decision supports the earlier findings284 in this book that, in the case of erga omnes obligations, non-injured States may claim before the icj the State responsibility of the affected State for the breach of its treaty obligations, since the fulfilment of these obligations is in the interest of the international community as a whole. Moreover, Myanmar’s formal objection that The Gambia should be subordinate to Bangladesh in its standing demonstrates that even if the alleged violation by the affected State concerns primarily the situation of its own civilian population, the consequences of such a violation may nevertheless have a particular impact on neighbouring States, so that they can be
3.2 Regional Human Rights Courts and Commissions
3.2.1 Inter-State Procedures
Most of the Regional Human Rights Charter provide the possibility for Member States (and individuals, as discussed later) to submit complaints against another State party before a regional human right court or commission.285 For example, the European Court of Human Rights (ECtHR) is competent to receive and examine inter-State complaints.286 According to Article 33 echr “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.” Thus, the right to bring inter-State (or individual) complaints to the Court does not depend on any specific act of acceptance. Where the case is considered by the Court as admissible, the Chamber will conclude it by the means of a binding and final judgement. Any party to the case can (within three months) request that the case shall be referred to the Grand Chamber. When the request is (exceptionally) accepted, the Grand Chamber will then decide on the case with a final judgment (Articles 43–44 echr). The execution of the judgment of the ECtHR is supervised by the Committee of Ministers of the Council of Europe (Article 46 echr).287
Inter-State complaints are also provided by the African and Inter-American Human Rights Charter, but the procedures are more complex: The African Commission on Human and Peoples’ Rights has, according to Article 30 AfCHPR, not only the function to promote the human and peoples’ rights of the Charter, but also to protect these rights, which include the right to receive communications from States and to interpret the provisions of the Charter at the request of a State Party (Article 45 AfCHPR).288 When “all appropriate means
The inter-American system for the protection of human rights comprises obligatorily two instances: The Inter-American Commission on Human Rights has to first consider a matter, before the Inter-American Court of Human Rights can examine a case on request of either of the involved States parties or the Commission (Article 61 achr). For an inter-State complaint procedure to
What all these procedures have in common is that in order to submit an application to the respective Court or Commission, all domestic remedies have to be exhausted. Exceptions to this admissibility criteria include situations where no effective remedy is available for the concerned individuals at national level.294 This requirement can be met easily in situations of armed conflicts where there is no properly functioning national judicial system. This is particularly true for situations of humanitarian crisis, where the concerned civilian population already lack essential goods to survive. The national judicial system, at least in the affected area, will be affected to such an extent that nothing should stand in the way of a direct inter-State complaint before a regional human rights court or commission against the arbitrary withholding of consent to relief actions.
It should be noted that inter-State application procedures are in general less applied before human rights courts and commissions than individual complaints. For example, until today, States have referred to the ECtHR (including the former Commission) in only 24 situations, compared to over 750,000 individual applications submitted to the ECtHR. Inter-State procedures can have nevertheless a significant impact in situations such as armed conflict where many individuals are affected and there is a need for general clarification.295
the problem of admissibility encountered by the claim in the present case has been resolved by the European Convention on Human Rights, which entitles each State which is a party to the Convention to lodge a complaint against any other contracting State for violation of the Convention, irrespective of the nationality of the victim.297
3.2.2 Enforcement of ihl
With regard to the breaches of ihrl in the context of non-international armed conflicts, the question whether regional judicial human rights bodies can address breaches of ihl within the ihrl complaint procedures arises. In particular, whether such courts and commissions can refer in instances of arbitrary withholding of consent to relief during non-international armed conflicts, as well as the obligation of the concerned State to provide and enable the provision of relief based on ihl. The practice of regional human rights courts and commissions shows that they have enforced at several instances ihl provisions applicable to non-international armed conflict in individual and States initiated human rights complaint procedures.298
The Inter-American Commission on Human Rights has adopted in the past the most generous attitude in that respect: it applied ihl directly in the context of the ihrl complaints and condemned violations against Common Article 3 and ap ii.299 The Commission addressed its competence and argued that the direct application of ihl enhances its ability to respond to situations
The African Commission on Human and Peoples’ Rights has also directly applied and enforced ihl. It argued that on the basis of Article 60 and 61 of AfCHPR, that inspiration can be drawn from other international law instruments and such instruments can be used to determine principles of law, ihl could be taken into consideration to determine a case.304 The mentioned legal basis does, however, not allow the direct enforcement of ihl. The competence of the Commission to directly condemn violation of ihl provisions within ihrl procedures is therefore doubted in the doctrine. The African Court on Human and People’s Right, in contrast, has a clear mandate not only to enforce the AfCHPR, but any human rights instruments that are binding for the concerned State,305 which include undisputedly ihl instruments. The African Court has however, until today, not decided directly on the basis of ihl.
In contrast to the Inter-American and African approach, the ECtHR is (like the European Commission on Human Rights before306) still reluctant
Thus, at proceedings of arbitrary withholding of consent to relief in situations of non-international armed conflict, only the African Commission and Court on Human and Peoples’ Right may also enforce ihl and refer explicitly to possible breaches of ihl in its judgement. The Inter-American Commission and Court on Human Rights has the possibility to determine violations of ihl as observations, while the ECtHR would consider ihl only as a source of guidance for interpreting the affected ihrl provisions.
3.3 International Criminal Court (icc)
The International Criminal Court (icc) represents a potential way for holding to account the individuals who are responsible for the arbitrary withholding of consent to relief. The icc complements the existing national judicial systems. Accordingly, it will step in only if national courts are unwilling or unable to investigate or prosecute (principle of complementary, Article 17 of the Rome Statute).309 The Office of the Prosecutor of the icc conducts investigations upon referrals by States who have ratified the Rome Statute or when it decided by the United Nations Security Council on a binding decision or on its own initiative and with authorisation of the judges.310 An important condition to prosecute against State officials is provided by Article 27(2) of the Rome Statute
To date, there have been no allegations against individuals at the icc for committing a war crime, a crime against humanity or a genocide crime based on denying humanitarian relief to civilians in need. But the icty for example, was, for example, confronted with certain cases where food and other vital services were withheld from inmates in detention centres and which were brought under the heading of “wilfully causing great suffering or serious injury to body or health,” “cruel treatment” and “inhuman acts.”315 The icty did, however,
The practice of the icty shows that the additional elements which have to be proved in order to address withholding of consent under the existing crimes places a considerable limitation on the ability of a court to consider it as an act of crime.319
Further also in ap iii.
Schmitt/Watts, p. 677.
For example, earlier in Pictet, Commentary on the Third Geneva Convention, p. 18; or in icrc Commentary on the aps, para. 45; recently also in icrc Commentary on gc iii of 2020; paras. 153–222; icrc Commentary on gc ii of 2017, paras. 147–148,175–179, 186–95 and icrc Commentary on gc i of 2016, paras. 125–126, 153–179.
icrc, Commentary on gc iii, para. 202.
For example, Schmitt/Watts, p. 678 f.; Robson, online post on opinio iuris.
Kalshoven, Untertaking to Respect and Ensure Respect, p. 13 ff.
Gasser, Ensuring Respect, p. 48.
Bugnion, p. 1080 f.
Dörmann/Serralvo, p. 712 f.
icrc, Draft Revised or New Conventions for the Protection of War Victims, Geneva, May 1948, p. 5.
Kalshoven, Undertaking to Respect and Ensure Respect, p. 14.
Dörmann/Serralvo, p. 714; Also other scholars agree with a wider reading of the term ‘universal’, for example, Eric David, Principes de Droit des Conflits Armés, Bruylant, Brussels, 2008, para. 3.13: « une application universelle ne se limite évidemment pas à une application nationale. »
Dörmann/Serralvo, p. 715.
Künzli, p. 326.
See on this Künzli, p. 326; and also Dörmann/Serralvo, p. 711.
UN International Conference on Human Rights, Resolution xxiii: Human Rights in Armed Conflict, Teheran, 12 May 1968, preamble, available at:
Dörmann/Serralvo, p. 716 f.
icj, Judgement, Nicaragua v. United States of America, para. 220; see on this also Künzli, p. 329.
icj, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 158.
For example, UN sc, Resolution 681 (1990), UN Doc. s/res/681, 20 December 1990; UN sc Res. 764 (1992), UN Doc. s/res/764, 13 July 1992; UN ga, Resolution 45/69, UN Doc. a/res/45/69, 6 December 1990, UN ga, Resolution 60/105, UN Doc. a/res/60/105, 8 December 2005; On the overall topic, see Dörmann/Serralvo, p. 717 f. with further references.
icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, December 2003, p. 47, available at:
For example, hrc, Council Holds Interactive Dialogue with Commission of Inquiry on alleged Human Rights Violations in Libya, 9 June 2011, available at
‘Several Countries Expel Syrian Diplomats as EU Mulls Joint Expulsion’, Al Arabiya News, 29 May 2012, available at:
For example, Künzli, p. 329 with further references; Dörmann/Serralvo, p. 721; Kessler, p. 498 ff.; Brehm, p. 371 with references of other supporting authors.
Frutig, p. 309 with further references.
icj stated in Nicaragua v. US that States shall not “encourage persons or groups engaged in the conflict (…) to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions,” which has been interpreted in the literature as being applicable to non-international armed conflicts in the sense of Common Article 3, see icj, Nicaragua v. US, para. 114; see also Frutig, p 183.
See on this also Focarelli, p. 159.
Akande/Gillard, Oxford Guidance, p. 46.
icj, Judgmenet, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 2007, para. 430.
Gasser, p. 84; on the overall topic, see Dörmann/Serralvo, p. 724; see also Rodenhäuser, p. 13.
icj, Judgement, Nicaragua v. United States of America, para. 220; hereto Künzli, p. 329; See also International Humanitarian Law and the Challenges of Contemporary Armed Con icts, report prepared by the International Committee of the Red Cross, 28th International Conference of the Red Cross and Red Crescent, 2–6 December 2003, pp. 22 and 48.
Article 16 ilc-Draft Articles on State Responsibility; hereto Dörmann/Serralvo, p. 727.
ohchr, p. 71.
Dörmann/Serralvo, p. 728 with further references.
ilc Report p. 95.
Article 33 (2) ilc Draft Articles: “This Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State;” see Sassòli, p. 418, ilc Report, p. 95.
The Special Rapporteur stated in its seventh report on responsibility of international organizations to the ilc: “some States suggested that part three should also include the invocation by an international organization of the international responsibility of a State. However, this is a matter which lies outside the definition of the scope in article 1. Moreover, if it was felt necessary to specify the rules applying to the invocation of the responsibility of a State by an international organization, the appropriate place would be the articles on State responsibility and not the current draft articles. Various articles of part three on State responsibility, such as articles 42, 43, 45 to 50, 52 and 54, could conceivably be extended to also cover the invocation of responsibility by international organizations,” UN Doc. a/cn.4/610, 27 March 2009, p. 75.
ilc-Report, p. 117 and 126.
ilc Report, p. 126.
ilc Resport, p. 126.
icj, Barcalona Traction, Belgium v. Spain, para. 33, to the whole ilc Report, p. 33 (4).
Kuijt, p. 58 f.; see also Stoffels, p. 524.
ilc Report, p. 127.
For example, Sassòli, p. 423.
ilc Report, p. 117.
See on the discussion hereto Sassòli, p. 423 f.
ilc Report, p. 119.
Sassòli, p. 423.
See ilc Report, p. 119.
Akande/Gillard, Oxford Guidance, p. 54.
Ryngaert, Countermeasures, ejil Talk Blog.
unhcr, Operational portal on the situation of Syrian refugees, see
Report on the humanitarian situation of refugees in the countries neighbouring Syria, Rapporteur Manlio Di Stefano for the Parliamentary Assembly of the Council of Europe, Doc. 14276, Reference 4293, 30 May 2017, p. 1 and 3 f.; The Security Council expressed 2014 in its considerations of the UN sc Resolution 2139 (2014) “grave concern at the increasing number of refugees and internally displaced persons caused by the conflict in Syria, which has a destabilizing impact on the entire region, and underscoring its appreciation for the significant and admirable efforts that have been made by the countries of the region, notably Lebanon, Jordan, Turkey, Iraq and Egypt, to accommodate the more than 2.4 million refugees who have fled Syria as a result of the ongoing violence, while acknowledging the enormous political, socioeconomic and financial impact of the presence of large-scale populations in these countries.”
See Chapter 18 3.1.
Such actions do not require a specific title or interest of a State. They are considered as informal diplomatic contacts which are allowed at any time, see on this ilc Report, p. 117.
On the overall topic, see also ilc Report, p. 117.
Sassòli, State Responsibility, p. 432.
ilc Report, p. 119 f.
ilc Report, p. 119.
ilc Report, p. 117.
ilc Report, p. 127.
ilc Report, p. 127.
ilc Report, p. 127 f.
Action by the icrc, p. 396.
For example, Gasser, Einführung Völkerrecht, p. 202.
There are various types of peace agreements which can be concluded during a peace process: there are Cessation of Hostilities or Ceasefire Agreements, Pre-Negotiation Agreements, Interim or Preliminary Agreements, Comprehensive and Framework Agreements, Implementation Agreements; for more information see Nita Yawanarajah/ Julian Ouellet, September 2003, online available at
For example, Internally Displaced Persons: Sudan Comprehensive Peace Agreement, Annexure i: Permanent Ceasefire and Security Arrangements Implementation Modalities and Appendices (Signed at Naivasha, Kenya on 31st December 2004), 1.10: “The Parties shall commit themselves to render and facilitate humanitarian assistance through creation of conditions conducive to the provision of urgent humanitarian assistance to displaced persons, refugees and other affected persons and their right to return;” or Statement by the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone on the Delivery of Humanitarian Assistance in Sierra Leone, 03/06/1999, Annex 4 of the Lome Peace Agreement which outlines details on safe and unhindered access of humanitarian agencies and provided for the establishment of an Implementation Committee, available online at
Simon/Siegfried, p. 1 and 67.
Article 60 (2)(a) vlct; see also ilc Report, State Responsibility p. 117.
Instead of many, see Kälin/Epiney/Carroni/Künzli, p. 296.
On the overall topic, see Palwankar, online Article.
Kälin/Epiney/Caroni/Künzli, p. 296 f.
Article 22 ilc-Draft Articles, see also Kälin/Epiney/Caroni/Künzli, p. 296.
Akande/Gillard, Oxford Guidance, p. 48; Gillard, p. 34.
As a side note, where an international organisation takes countermeasure in response to a breach by a member State of obligations under the rules of that organisation, it is further required that the taken countermeasures must be provided for by those rules; see on the whole, Oxford Guidance, section 153 referring on Article 22(2)(b) and (3) of the ilc Articles on the Responsibility of International Organisations.
ilc Draft Articles, Article 54; Ryngaert, Countermeasures, ejil Talk Blog; see on the necessity of countermeasures for erga omnes obligations also Kälin/Epiney/Caroni/Künzli, p. 297.
On the whole, see Ryngaert, Countermeasures, ejil Talk Blog; Stoffels, p. 524; Sassòli, State responsibility, p. 427 f.
Article 54 ilc Draft Articles: “This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest (…) of the beneficiaries of the obligation breached,” on the overall topic, see Ryngaert, Countermeasures, ejil Talk Blog.
Sassòli, State responsibility, p. 427 f.; Ryngaert, ejil Talk Blog; ilc Report, p. 355; It should be noted, that the article speaks of “lawful measures” and not of “counter-measures” in order to not prejudice any position concerning measures which could be justified in the future and taken by States other than the injured State in response to breaches of obligations for the protection of the collective interest or those owed to the international community as a whole; see Article 54 ilc Draft Article on State Responsibility; on the overall topic, see Gillard, p. 32.
For example, the imposing of asset freezes by the European Union and the United States in response to the escalating violence against the civilian population in Syria, see EU Council Decision 2013/255/cfsp of 31 May 2013, oj l 147, 01.06.2013, p. 14; and Section 1(a) US Executive Order 13582 of 17 August 2011, Federal Register, Vol 76, No 162, Monday, August 22, 2011, Presidential Documents, 52209; on the overall topic see, Gillard, p. 32.
Katselli, p. 20; Ryngaert, Countermeasures, ejil Talk Blog; see also Kälin/Epiney/Caroni/Künzli, p. 297.
To this conclusion comes also the Oxford Guidance, see Akande/Gillard, Oxford Guidance, p. 54.
Gillard, p. 34.
Akande/Gillard, Oxford Guidance, section 134.
The European Union Guidelines on Promoting Compliance with International Humanitarian Law list, for example, various measures which can be taken by non-belligerent States in order to implement their obligation to ensure respect for ihl according to Common Article 1 of the gcs. The adoption of sanctions in accordance with the UN Charter is suggested there, see Council Decision 2013/255/cfsp of 31 May 2013, oj l 147, 01.06.2013, p. 14.
Palwankar, online Article.
The European Communities took for example in 1990 an embargo on the sale of arms and other military equipment, and suspended technical and scientific cooperation, see Palwankar, online Article.
For example, in 1978, the United States suspended commercial relations with Uganda is a reaction to violations of human rights, see Palwankar, online Article, with further examples.
European Council Decision 2013/255/cfsp of 31 May 2013, oj l 147, 01.06.2013, p. 14.
Daglish, p. 1; Hofmann/Schneckener, p. 6.
This is particularly important in view of the nature of such non-State armed groups. They are a fluid and transnational entity which are embedded within a civilian population, which makes sanctioning them difficult. Without a comprehensive sanction system and international consensus, other States can easily support those groups and provide them with the material and financial support they require to continue their violations of law, for more information, see Dudouet, p. 3 f.
Daglish, p. 1 ff.
For example, the UN sanctions against Islamic State have also targeted those who funded and supported the group, the UN member States were namely banned from purchasing oil from reserves which were held by IS fighters; for more information, see Daglish, p. 3 f.
For example, the Syrian government has in response to blacklisting of radical Islamist opposition groups raised its brutality against civilians and moderate groups by claiming they are allied with those groups who are blacklisted by the international community, for more information, see Daglish, p. 3.
Many affected persons have claimed for example that after 9/11, they were wrongfully placed on that list and that this blacklisting constituted a violation of their human rights. It has been argued that on the one hand, the non-transparent process of listing violates the right to a fair hearing and the presumption of innocence. On the other hand, the de-listing process is elusive to those who are targeted and is a very lengthy process; see on this Daglish, p.2; on this problematic, see also Hofer, p. 35 ff.
For example, with the judgement Holder v. Humanitarian Law Project, the US Supreme Court ruled against the non-profit organisation that wanted to advise the pkk on human rights issues; see on this Daglish, p. 2; on the overall topic, see also Dudouet, p. 5 f.
For example, in the case of Boko Haram, the UN sanctions following the abduction of 250 schoolgirls in Nigeria were clearly necessary. Nonetheless, the sanctions regime may not actually influence the funding of the group, which appears to rely predominantly on armed robberies, racketeering and extortion; see Daglish, p. 5.
Gillard, p. 4; Ryniker, p. 527; see also Abiew, p. 31.
Instead of many, see Ryniker, p. 527.
UN sc Resolution 678 (1990).
The UN Charter does not explicitly mention a legal right to initiate a humanitarian intervention, see on this Barry /Jefferys, p. 9.
The nato started on 24 March 1999 its intervention into Kosovo with the aim to prevent further human suffering in Kosovo. That invervention is till today the last military intervention that took place without a autorisation of the Securtiy Council; see on this a critical analysis (instead of many) Gromes, p. 1 ff.
The Securtiy Council has for example restored to military enforcement to provide humanitarian assistance to populations in need 1992 in relation to Bosnia-Herzegovina UN sc Resolution 781(1992), operative para 1 and in relation to Somail with UN sc Resolution, operative para 10; see Akande/Gillard, Oxford Guidance, p. 48.
The armed intervention is also often carried out with a political agenda, see in this respect, Ryniker, p. 529 f.
Military interventions are initiated for various of reasons, including political and national interests, see on this illustrative explanation in Barry /Jefferys, p. 11.
Where there is political interest, help may be offered not only because of need, but also because of particular political convictions, or belongs to a ‘friendly’ group, or because the place of the fighting lies in a strategically important place. People who are not in one of these favored categories could be left out, see on this Barry /Jefferys, p. 11.
Barry /Jefferys, p. 12.
Steering Committee for Humanitarian response (schr) stated in its position paper of 2001: “there is a risk that too close a relationship between the peacekeeping mission and the humanitarian operation implicates humanitarians in political action to which elements of the local population are opposed, thereby putting them at risk of retaliation.” See schr, Draft Position Paper on ‘Humanitarian–Military Relations’, Geneva January 2001 (internal document).
The peacekeeping mission unosom was appointed by the UN with the Security Council Resolution 751 (1992) in order to monitor the ceasefire and assist the humanitarian relief efforts. When the relief convoys came repeatedly under attack, the United States offered to lead an intervention force, which was accepted by the UN Security Council with Resolution 794 (1992), that authorised the use of military force “to establish as soon as possible a secure environment for humanitarian relief operations in Somalia” under Chapter VII of the UN Charter. Subsequently, operations of unosom were suspended, and the military intervention of the multinational force United Task Force (unitaf) was appointed. Since the unitaf mission did not succeed in establishing a secure environment in one year, unitaf was replaced by the mission unosom ii, which was established by the Security Council in Resolution 814 (1993). The new mandate also provided unosom ii enforcement powers under Chapter VII of the UN Charter to establish a secure environment for the provision of relief. Further, unosom ii also had the mandate to assist the Somalian government in rebuilding their economic, political and social life. After failure on various levels, the mission was completed on March 28, 1995; see (instead of many) Mayall, p. 110 ff.
Barry /Jefferys, p. 12.
Ryniker, p. 531 f.
Even more than it is already required in the view of the sovereignty of the concerned State. Oxfam has, for example, stated that it would not support armed intervention unless there was no other way to prevent widespread loss of life and once peaceful methods of resolution are exhausted; protection by the controlling authorities has demonstrably failed; when there is adherence to the norms of ihl; further when there is proportionality to the protection needs of the people at risk; and when there is accountability to the UN; see Barry /Jefferys, p. 9.
Ryniker, p. 531.
In the past, there have been only limited occasions where the military was directly charged with the delivery of humanitarian assistance in conflict-related emergencies like for example in Iraq in April 1999 or during the Kosovo crisis in April 1999; see Barry /Jefferys, p. 13.
Ryniker, p. 532.
For an in-depth analysis see Chesterman Simon, ‘R2P and Humanitarian Intervention: From Apology to Utopia and Back Again’ in: Robin Geiss/Nils Melzer (eds.), The Oxford Handbook on the International Law of Global Security, Oxford 2018.
UN sc Resolution 1674 (2006), preambular para. 4: “Reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”
UN sc Resolution 1706 (2006), preambular para. 1.
UN sc, Letter dated 31 August 2007 from the Secretary-General addressed to the President of the Security Council, UN Doc. s/2007/721, 7 December 2007.
See UN Meetings Coverage and Press Releases, ‘Security Council fails to adopt draft resolution on Myanmar, owing to negative votes by China, Russian Federation’, 12 January 2017, available at
UN sc Resolution 1769 (2007), ‘on establishment of au/un Hybrid Operation in Darfur (unamid)’, UN Doc. s/res/1769, 31 July 2007.
See on the overall topic, International Coalition for the Responsibility to Protect, An Introduction to the Responsibility to Protect, see on the website, available at
See on this the interview with Peter Maurer, former president of the icrc, in International Review of the Red Cross, p. 880 f.
Van den Herik/Jägers/Werner, cavv Advisory Report, p. 10.
Haider, p. 6.
Also, regional organisations like for example the EU play an important role for joint enforcement of ihl through States. Instruments within the EU are for example political dialogues with non-EU States or public statements through which the EU condemns particular situations or acts, application of restrictive measures and sanctions which are mentioned in the EU guidelines on the promotion of compliance with international humanitarian law, oj c 303, 15.12.2009, p. 12.
Palwankar, online Article.
United Nations, Charter of the United Nations, 24 October 1945, 1 unts xvi.
ohchr, p. 93.
Sassòli, State Responsibility, p. 428 ff.
icrc Commentary on ap i, Article 89, para. 3595.
Sivakumaran, Non-International Armed Conflict, p. 467; see also Oberleitner, p. 934; icrc Study on Customary ihl, Rule 149; and Clapham, Rights and Responsibilities, p. 29.
Using ihrl enforcement mechanisms to require compliance with ihl is for example for the individual complaint procedures the African Charta on Human Rights and Peoples’ Rights even explicitly provided in Article 60 and 61 that the Commission “shall draw inspiration from international law on human and peoples’ rights” and “shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions.” Based on that the Commission considers complaints also in view of other international regulations, which includes according to its practice ihl, see on this Kälin/Künzli, p. 223; see also Zimmermann /Bäumler, p. 48, with further references.
See on this Stoffels, p. 520.
Article 25 of the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” See on the overall topic, Sivakumaran, Non-International Armed Conflict, p. 466.
For example, UN sc Resolutions on Libya: 950 (1994); Burundi: 1012 (1995); Sierra Leone: 1231 (1999); see Sivakumaran, Non-International Armed Conflict, p. 465.
This has been, for example, the case in respect of senior unita Officials in UN sc Resolutions 1127 (1997) and 1135 (1997); or a commander of the Sudan Liberation Army (sla) in UN sc Resolutions 1591 (2005) and 1672 (2006); or the leadership of the Armed Forces Revolutionary Council in the Sierra Leonean armed conflict in UN sc Resolution 1171 (1998).
UN sc Resolution 1807 (2008), on the overall topic, see Sivakumaran, Non-International Armed Conflict, p. 466.
For example, in UN sc Resolution 2002 (2011), the Security Council demanded with regard to humanitarian access in Somalia “that all parties ensure full, safe and unhindered access for the timely delivery of humanitarian aid to persons in need of assistance across Somalia”, see para. 5. Other examples are found in UN sc Resolution 1973 (2011), para. 3, on humanitarian access in Libya or Res. 1935 (2010), para. 10, on Darfur; on the overall topic see sfdfa, p. 13; see also Van den Herik/Jägers/Werner, cavv Advisory Report, p. 23.
Akande/Gillard, Oxford Guidance, p. 18 with further references.
Akande/Gillard Oxford Guidance, p. 18.
Gillard, p. 34.
Van den Herik/Jägers/Werner, cavv Advisory Report, p. 23.
Akande/Gillard Oxford Guidance, p. 18 referring to different resolutions, e.g. in relation to Somalia, UN sc Resolution 794 (1992).
Al-Shabab was listed by the Security Council for food aid diversion and kidnapping aid workers, Report of the Monitoring Group on Somalia pursuant to Security Council Resolution 1853 (2008); see also the UN sc narrative summaries of reasons for listing on the website, available at
The commander was principally listed by the Security Council attacks against humanitarian workers and looting of supplies and equipment, sc Resolution 762 (2014), Annexes 59–61; On the overall topic, see Akande/Gillard, Oxford Guidance, p. 50, referring in relation to Somalia to UN sc Resolution 1844 (2008), para. 8(c); in relation to the Democratic Republic of the Congo, UN sc Resolution 1857 (2008), para. 4(f); in relation to Central African Republic, UN sc Resolution 2134 (2014), para. 37(e); see also the UN sc Narrative Summaries of reasons for listing, available at
Akande/Gillard Oxford Guidance, p. 50 referring to UN sc Resolution 770 (1992).
Van den Herik/Jägers/Werner, cavv Advisory Report, p. 23.
Akande/Gillard, Oxford Guidance, p. 18.
UN sc Resolution 2165 (2014), operative para 2; see also Akande/Gillard, Oxford Guidance, p. 18.
Particularly after Resolution 2165 (2014), the Security Council did not adopt similar resolutions with authorisation to provide relief without consent for other situations of humanitarian crisis and did not confirm it as a new approach of the Council for situations where relief is withheld arbitrarily. For this, see Akande/Gillard, Oxford Guidance, p. 18; see also Barber, ejil Talk Blog.
UN sc Resolution 2139 (2014), considerations.
UN sc Resolution 2139 (2014), paras 5 and 6.
UN sc Resolution 2139 (2014), para. 13.
The Russian permanent representative to the Security Council after the vote particularly underscored that there is no “automaticity” according to the resolution to undertaking sanctions in the event of non-compliance, see on this the online article on the website of Atlantic Council, available at
UN sc Resolution 2139 (2014), para. 17.
UN Secretary-General’s reports 2014/365 and 2014/427, considerations.
Namely border crossings at Bab al-Salam, Bab al-Hawa, Al Yarubiyah and Al-Ramth, s/Res/2165 (2014), para 2, see also New Article, Aron Lund, The New Humanitarian, ‘Diplomats battle over key Syria aid resolution’, available at
UN sc Resolution 2165 (2014), paras 2 and 3. Notification was provided 48 hours in advance of “each shipment, including its contents, its destination and the number of beneficiaries expected to be reaches with the respective relief,” see on this the Report of the Secretary General on Implementation of the Security Council resolutions 2139 (2014), 2165 (2014), 2258 (2015), 2332 (2016) and 2393 (2017), paras 29 and 36.
See also Akande/Gillard, Oxford Guidance, p. 18.
UN sc Resolution 2165 (2014), para. 11.
Meetings Coverage Security Council, ‘With Millions of Syrians in Need, Security Council Adopts Resolution 2165 (2014) Directing Relief Delivery through More Border Crossings, across Conflict Lines,’ sc/11473 from 14 July 2014; available at
For more background and details on the invasion and the Syrian conflict and the “safe zone” see for example: The Guardian, ‘Turkey’s ‘safe zone’ in northern Syria unsafe for civilians, says report,’ 27 November 2019, available at
The authorisation in the Security Council Resolution 2165 (2014) enabled the provision of humanitarian assistance to more than four million Syrians, more hereto see Barber, ejil Talk Blog.
UN sc Resolution 2504 (2020), para. 3; on the whole, see also Barber, ejil Talk Blog.
Report of the Secretary-General to the Security Council, Review of United Nations humanitarian crossline and cross-border operations, UN Doc. s/2020/401, 14 May 2020.
See on the whole, Analysis in the New Humanitarian: ‘Russia hold key to UN Syria aid operation; Those most vulnerable are first affected and worst affected’, 1 July 2020; and Colum Lynch/Robbie Gramer, Report in Foreign Policy, ‘Russia, with an eye on the Syrian prize, blocks humanitarian aid,’ 10 July 2020.
UN sc Resolution 2533 (2020), paras 1 ff.
Security Council Report Organisation, ‘In Hindsight: The Demise of the Syria Cross-border Aid Mechanism’ in August 2023 Monthly Forecast, posted 31 July 2023, available at
UN sc, Brazil and Switzerland: draft resolution s/2023/506 of 11 July 2023, para. 2.
UN sc, Russian Federation: draft resolution s/2023/507 of July 2023, para. 2.
United Nations, Meetings Coverage and Press Releases, ‘Security Council Rejects Two Draft Resolutions Aimed at Renewing Cross-Border Humanitarian Operations in Syria’s North-West’, sc/15348 of 11 July 2023, available at
Security Council Report Organisation, ‘In Hindsight: The Demise of the Syria Cross-border Aid Mechanism’ in August 2023 Monthly Forecast, posted 31 July 2023, available at
United Nations, Meetings Coverage and Press Releases, ‘Adopting Resolution 2417 (2018), Security Council Strongly Condemns Starving of Civilians, Unlawfully Denying Humanitarian Access as Warefare Tactics’, sc/13354 of 24 May 2018, available at
See on this topic, for example, A. de Waal, ‘Armed Conflict and the Challenge of Hunger: Is an End in Sight?’, ifpri Global hunger index 2015, at 22–29, available online at
For an overview of the discussions and concerns on this issue in the Security Council, see Zappalà, pp. 884 ff.
UN Secretary-General, Press Conference, see
Even though only a few months after that call of the Secretary General, the Security Council Members held a meeting (a so called Arria formula meeting) and spoke about the seriousness of the threat and the interplay between conflict and hunger as well as the need for urgent action by the international community, the Council was unable to agree on any resolution. On 9 August 2017, the Council however adopted a Presidential Statement (s/prst/2017/14) which laid out aform of general principles and recognitions regarding hunger and food insecurity in conflicts, although it was limited to the mentioned four countries. The Council reaffirmed therein that the ongoing conflicts are themselves a major cause of famine and underlined the obligations of the conflict parties to respect and protect civilians. The Council also reminded the conflict parties of their obligation to comply with ihl. The Council particularly called out in this regard that ‘certain parties have failed to ensure unfettered and sustained access for deliveries of vital food assistance, as well as other forms of humanitarian aid’ and asked them to allow ‘safe, timely and unhindered access for humanitarian assistance to all areas and to facilitate access for essential imports of food, fuel and medical supplies’. Throughout 2017, the Netherlands and Switzerland also organised several workshops and dialogues among experts, which highlighted the issue. And despite some divergence of opinions within the Security Council, Members of the Council continued discussion on the topic and reiterated the need for Council engagement in briefings in October 2017 and in March 2018. All the discussions and prepatory works have made an important contribution to provide a solid ground for the adoption of the resolution; see
Zappalà, p. 887; see also preambule paras 3, 7 and 8 of the Resolution 2417 (2018).
Zappalà, p. 895.
According to the view of the author of the present book, what is referred to in Resolution 2417 (2018) as unlawful denial of relief actions corresponds to what is understood in this book as cases of arbitrary withholding of consent to relief. The two expressions are therefore used here as synonyms.
Zappalà, p. 895.
Similar conclusion by Zappalà, p. 895; Also in operative paragraph 6, the Council expresses its strong condemnation of “unlawful denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access for responses to conflict induced food insecurity in situations of armed conflict, which may constitute a violation of international humanitarian law.” Zappalà noted hereto “One would be tempted to say that unlawful denial is per se a violation (otherwise, it would not be unlawful!),” see on the whole, Zappalà 6, p. 897.
See on this the argumentation of Zappalà, p. 891.
For example, in UN sc Resolutions 1894 (2009), para. 15. See also UN sc Resolutiongs 2000 (2011), para. 7; 1996 (2011), para. 3; 1990 (2011), para. 2; 1861(2009), para. 7; 1565 (2004), para. 5; 1270 (1999), para. 8.
Zappalà, p. 896.
On the whole with similar argumentations see Zappalà, p. 891 and 896.
Zappalà, p. 900.
As mentioned before, in December 2019, the amendment in this respect was adopted in the Rome Statute; on the overall topic, see Zappalà, p. 901 f.
USA (in 2002) and Russia (in 2016) have expressed both formally their intention not to ratify the Rome Statute, see
Zappalà noted hereto “One would be tempted to say that unlawful denial is per se a violation (otherwise, it would not be unlawful!),” Zappalà, p. 897.
Zappalà, p. 903.
For example, the US representative stated at the adoption of Resolution: “the connection between conflict and hunger is undeniable. We are pleased that today’s resolution definitively resolves any remaining doubt about that link,” see Zappalà, p. 890.
Zappalà, p. 889.
Zappalà, pp. 890 and 893.
For example, Farrall, p. 21.
Other examples are Statements of the President of the Security Council of 9 August 2017 (s/prst/2017/14) and 29 April 2020 (s/prst/2020/6).
Statement by the President of the Security Council of 3 August 2023 (s/prst/2023/4), p. 3.
UN ga Resolution 46/182, principle 5, 6 and 7. See sfda, p. 14 with further references.
See also UN ga Resolutions 58/114, para. 7–10; 59/141, paras. 11 and 18 or 62/95, para. 4; see on this sfda, p. 14 with further references.
UN Secretary-General Report on emergency assistance to Sudan, para. 706.
For example, UN ga Resolutions: 46/242, para. 622, 49/196 and 50/193 para, 623, 52/140, para. 624 and 52/145, para. 625; 55/2, para. 704; see also the icrc Study on Customary ihl, Rule 55.
General description of the mandate of the Human Rights Council, see
See on this Sivakumaran, Non-International Armed Conflict, p. 467.
Even though today there is no such thematic mandate, there are country-based mandated Special Rapporteur, who could also report on situations of arbitrary withholding of consent.
For example, recommendation for Syrian Republic, Second Review Session 26; Review in the Working Group: 31 October 2016, Adoption in the Plenary: 16 March 2017, available at
On the mandate of the Advisory Committee, see
The Special Rapporteur on the right to food was mandated originally by the Commission on Human Rights in April 2000 based on the Resolution 2000/10. Following the replacement of the Commission by the Human Rights Council in June 2006, the Council endorsed and extended that mandate with the Resolution 6/2 of 27 September 2007; see on the whole, the description of the Special Rapporteur on the right to food, available at
See the description of the Special Rapporteur on the right to food, available at
Report of the Special Rapporteur on the right to food, Critical perspective on food systems, food crises and the future of the right to food, 21 January 2020, a/hrc/43/44.
Also, some of the regional human rights treaties know similar monitoring mechanisms, for example, Article 19 ap 1/achr, Article 63 AfCHR and Article ap 2/AfCHR; but not echr; see Kälin/Künzli, p. 249 f. and 254.
Kälin/Künzli, p. 254.
See for example implicitly in the Concluding observation of the cescr on Kongo at its forty-third session, e/c.12/cod/co/4, 16 December 2009, para. 33; cescr on Sudan, e/c.12/sdn/co/2, 27 October 2015, para. 33.
Concluding observations of the cescr on Sri Lanka at the forty-fifth session, e/c.12/lka/co/2-4, 9 December 2010, para. 28.
Concluding observations of the cppr on Sudan, ccpr/c/sdn/co/4, 19 August 2014, para. 8 (f).
Ford, p. 8.
Monitoring mechanisms are generally criticised as a weak enforcement tool for different reasons, for example because they do not enable reaction to individual cases and because recommendations are often formulated very generally and with restraint, see on this Kälin/Künzli, p. 259 f.
In addition to reactive and incidental procedures, specific preventive procedures (although reactive procedures may have partial preventive effects) are necessary to prevent future infringements, this purpose serves also monitoring mechanisms Kälin/Künzli, p. 259 and 281.
States may take efforts to apply the recommendations and reply to the comments in their following reports, see on this for example, Ford, p. 8.
See on the whole, Ford, p.8.
Kälin/Künzli, p. 279.
For example, Article 21 cat, Article 74 cmw, article 32 ced, Article 10 of the Optional Protocol to the icescr. cerd, ccpr and crc: Articles 11–13 icerd, Articles 41–43 iccpr set out for the resolution of disputes between States parties under the relevant Convention/Covenant the establishment of an ad hoc Conciliation Commission. icerd applies the procedure to all States parties, for iccpr and crc applies it only to State which has accepted the competence of the relevant Committees in this regard. In 2018, three inter-state communications were submitted under Article 11 of the Convention on the Elimination of All Forms of Discrimination, for first time in its history.
Article 33 echr, Article 45 achr and Article 48 AfCHPR; see on the whole Kälin/Künzli, p. 279.
Some processes only took place at the regional level in Europe, Africa and America, see on this Kälin/Künzli, p. 280.
Kälin/Künzli, p. 281.
Relevant mandate for the Committee on Economic, Social and Cultural Rights in Article 11 of the Optional Protocol to the icescr, similar provisions exist also for the Committee against Torture in Article 20 cat or the Committee on the Rights of the Child in Article 13 of the Optional Protocol on a communications procedure to crc.
States parties have in general the posssibility to opt out of the inquiry procedure by declaring that they do not recognise the competence of the Committee to conduct inquires, for example provided for by Article 28 cat; Article 10 of the Optional Protocol to cedaw; article 8 of the Optional Protocol to crpd; Article 13(7) of the Optional Protocol (on a communications procedure) to crc or Article 11(8) of the Optional Protocol to the icescr. An excepetion to this is ced as the competence to conduct inquiries is not subjected to the acceptance of the States parties (Article 33 icpped).
On the overall topic, see
Kälin/Künzli, p. 282.
Kälin/Künzli, p. 282.
On the overall topic, see Kälin/Künzli, p. 282 f.
1929 Geneva Convention, Article 86; 1949 First, Second, and Third Geneva Conventions, Articles 8–11; 1949 Fourth Geneva Convention, Articles 9–12; Additional Protocol i, Article 5.
Heinsch, p. 80.
The last reported instance occurred over three decades ago: Since 1949, the Protecting Powers system has been used for example during the Suez crisis in 1956, in Goa I 1961 and in the conflict between India and Pakistan from 1970 till 1971 and also in the Falklands/Malvinas conflict in 1982; see Sivakumaran, Non-International Armed Conflict, p. 457 with further references; see also Pejic, p. 318.
Sivakumaran, Non-International Armed Conflict, p. 457.
A neutral State may carry out the role on behalf of an armed group, there is one instance of this in practice over a century ago, see Sivakumaran p. 457 f.
See argumentation in Sivakumaran, Non-International Armed Conflict, p. 458.
Heinsch, p. 80.
Sivakumaran, Non-International Armed Conflict, p. 459; Azzarello/Niederhauser, Blog Article icr.
List of the State parties, available at
Heinsch, p. 88.
Azzarello/Niederhauser, Blog Article icr; icrc, Commentary on the aps, para. 3625; see Sivakumaran, Non-International Armed Conflict, p. 460; It has been questioned in the past whether the competence of the Commission to offer its good offices is dependent on the enquiry procedure. It is argued in the doctrine that the structure of Article 90(2) ap i speaks in favour of the separation of the two competences. This approach has been also approved several times by the Commission that it is able to conduct its services independently, see on this Heinsch, with further references, p. 87 f.
Heinsch, p. 86; Azzarello/Niederhauser, Blog Article icrc.
For example, Report of the International Fact-Finding Commission 1991–1996; see Heinsch, p. 84 f.
See Sivakumaran, Non-International Armed Conflict, p. 460, Heinsch, p. 84; see also Azzarello/Niederhauser, Blog Article icrc.
Heinsch, p. 85.
Sivakumaran, Non-International Armed Conflict, p. 260.
On the Commission’s first mandate, see Heinsch, p. 85.
It is also unsatisfying, that declarations of Article 90 ap i are not yet made by important and military powerful countries like the United States, France, China, Israel and India, see Heinsch, p. 87.
On the overall topic, see Heinsch, p. 83.
This argumentation is based on the fact that an otherwise non-State armed group may benefit from former declaration of the affected State, while the State does not have that possibility. Further, there are distinguished views in the doctrine on whether a complaint could also be initiated by a non-State armed group. According to icrc, only States are competent to submit a request for an enquiry. Such an understanding would, however, go against the idea of equality of the conflict parties in ihl. It is therefore more convincing if the right of raising a complaint is also given to non-State actors. This is in line with the wording in Article 90(2)(c) which refers to ad hoc requests and consent from the conflict parties. In practice, the Commission has been approached by various non-State armed groups. In such situations, the Commission has not responded that this process could not be invoked by armed groups. The enquiry finally did not take place because the concerned State did not give its consent, see on this Sivakumaran, Non-International Armed Conflict, p. 460 f., and also Azzarello/Niederhauser, Blog Article icrc.
Kalshoven, The International Humanitarian Fact-Finding Commission, 836.
Sivakumaran, Non-International Armed Conflict, p. 461.
Heinsch, p. 88.
Heinsch, p. 89.
Azzarello/Niederhauser, Blog Article on icrc (last visited 31 August 2023).
Heinsch, p. 91 f.
Heinsch, p. 91 f. The Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an osce Special Monitoring Mission to Ukraine, on 23 April 2017, available at
For example, the UN Human Rights Council has established quite a number of commissions of inquiry and fact finding, Heinsch, p. 82.
Heinsch, p. 82 and 91.
Heinsch, p. 90.
Heinsch, p. 80.
ihfcc, Report on the Work of the ihffc on the Occasion of its 20th Anniversary, February 2011, p. 28; Schottler/Hoffmann, p. 259.
Heinsch, the Future of the ihffc, p. 82 and 93 f., and 96.
Exceptions are possible, for example the ECtHR in the Case Assanidze v. Georgia, Grand Chamber, sentencing: “Holds unanimously (a) that the respondent State must secure the appliacant’s release at the earliest possible date.”; hereto Kälin/Künzli, p. 274 f and fn. 125.
Sivakumaran, Non-International Armed Conflict, p. 475 ; Gillard, p. 34.
The Organisations of America States has called upon the Inter-American commission to address the issue of human rights violations by armed groups. The Inter-American Commission on Human Rights
however denyed with the argumentation, that involving acts of terrorism of non-State armed groups would implicity lace terrorist organisations on an equal footing with government(s), see on this Sivakumaran, Non-International Armed Conflict, p. 504.
Ford, p. 8.
Heinsch, p. 96.
Based on the principle of universal jurisdiction, national courts of a State have jurisdiction over international crimes such as war crimes, crimes against humanity or genocide, irrespective of where it is committed and what the nationality of the perpetrator or the victim is. There are only a few examples where the universal jurisdiction was applied in order to prosecute against members of former foreign authorities or non-State armed groups. For example, the Oberlandesgericht Düsseldorf (Germany) pronounced on the basis of universal jurisdiction a judgement on 12 July 2007 against Bosnian Serb Nikola Jorgic who was the leader of a paramilitary group involved in acts of ‘‘ethnic cleansing’’ of the Muslim population in Bosnia. The Oberlandesgericht Düsseldorf found him guilty of genocide and sentenced him to life imprisonment, see on this La Rosa/Wuerzner, p. 336.
ohchr, human rights in armed conflicts, p. 23.
Kälin/Künzli, p. 244.
See ‘How the Court works’, available under
icj, The Gambia v. Myanmar, Request for provisional measures, 11 November 2019, para. 68, available at
Ibid, para. 131.
icj, The Gambia v. Myanmar, Judgment of 22 July 2022 on Preliminary Objections, available at
Ibid., para. 94 ff.
Ibid., para. 98.
Ibid., para. 99.
Ibid., para. 106 ff.
Ibid., para. 109.
Ibid., para. 113.
See Chapter 18 1.2.2.
The Arab Charter of Human Rights currently lack an enforcement mechanism. The Charter has however established a process where the Committee receives and reviews State reports, which have to be submitted every three years by the respective States. Based on its review, the Committee can make recommendations if appropriate. For more information, see Mervat Rishmawi, Open Society Foundations and the Cairo Institute for Human Rights Studies, ‘The League of Arab States Human Rights Standards and Mechanisms: Towards Further Civil Society Engagement – A Manual for Practitioners,’ 2015.
ohchr, p. 89.
Kälin/Künzli, p. 269 ff.; ohchr, p. 100 f.
The inter-State procedure is stipulated in the AfCHPR as follows: Any State party can, if it “has good reasons to believe that another State Party to this Charter has violated the provisions” draw the attention of that State to the matter (Article 47). The State to which the communication is addressed can submit a written explanation. When the matter can not be “settled to the satisfaction of the two States involved,” either State can bring it to the attention of the Commission (Article 48). Independent of these provisions, a State party can also refer the matter directly to the Commission (Article 49), see on the whole ohchr, p. 75 and 76.
ohchr, p. 76.
See Article 2 of the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and People’s Rights (hereafter Protocol of the African Human and Peoples’ Rights Court), available at
For the sake of completeness, is must be mentioned that Member States of the Organisation of the African Unity (oau) can also request from the court an advisory opinion, see Article 4 of the Protocol of the African Human and Peoples Rights Court. On the inter-State procedure before the African Commission and Court on Human and Peoples’ Rights, see homepage of the African Commission on Human and Peoples’ Rights, available at
See Open Society, Justice Initiative, Factsheet African Court on Human and Peoples' Rights, available at
ohchr, p. 87 ff.
The exhaustion of domestic remedies rule is not applied according to Article 50 AfCHPR when “the procedure of achieving these remedies would be unduly prolonged.” According to Article 46 iach this requirement is not applicable inter alia, “where the alleged victim has been denied access to domestic remedies”; and (c) where there has been “unwarranted delay in rendering a final judgement.” Similar findings have been provided by the ECtHR in its practice.
This is particularly true, since there are no mass complaint procedures standardly provided by international law, as mentioned later under remedies for individuals.
In the last years, there are predominant cases concerning the Ukraine/Russia conflict, see on this the list of inter –State applications to the ECtHR, available at
icj, Barcelona Traction, Light and Power Company, limited, Bellgium v. Spain, para. 91; see on this Ulfstein/Risini, ejil Talk Blog.
Sivakumaran, Non-International Armed Conflict, p. 500.
For example, Inter-American Commission of Human Rights, Avilan et a v. Colombia, para. 202 or Lucio Parada Cea et al v. El Salvador, para 82; see Sivakumaran, Non-International Armed Conflict, p. 501 with further references.
Inter-American Commission Report No. 55/97, Case No. 11.137, Argentina, oea/Ser/l/v/ii.97, Doc. 38, October 30, 1997, p. 44, para. 161; see Zelgved with further references, (remedies for individuals for violation of ihl), p. 515.
Inter-American Court of Human Rights, Las Palmeras v. Colombia, paras 32–34 and paras 205–210; see for an in-depth analysis of this issue Sivakumaran, Non-International Armed Conflict, p. 501 ff.; Zelgved, p. 515 ff. and Kalshoven, Cases of Inter-American Court of Human Rights, p 259 ff.
Inter-American Court of Human Rights, Bamaca-Velasquez v Guatemala, paras 208–209.
See also view of Sivakumaran, Non-International Armed Conflict, p. 503.
African Commission on Human and Peoples’ Rights, Communication 227/1999, drc/Burundi, Rewanda, Uganda, 20th Report of the African Commission on Human and Peoples’ Rights, ex.cl/279(ix), paras 70 and 78.
Article 28 Statute of the African Court Human and Peoples’ Rights.
For example, in an inter-State complaint against Turkey, Cyprus invoked ihl rules before the European Commission on Human Rights. The European Commission did not, however, examine this point, European Commission on Human Rights (4 ehrr 482 at 552, 553,1976, Commission Report), hereto Zelgved, fn. 75 with further references.
In the case Hassan v. the United Kingdom, the ECtHR stated regarding a detainment of an Iraqi by the UK that the Geneva Convention and the European Convention provide safeguards from arbitrary detention during armed conflicts and that the grounds of permitted deprivation of liberty according to Article 5 should be accommodated, as far as possible, to the taking of prisoners and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions (para. 104 and 105).
See on this Zelgved, p. 519 and fn. 75 with further examples.
Ford, p. 9; The principle of complementary is also anchored in Article 17 of the Rome Statute and will be, as mentioned before, met in situation of arbitrary withholding of consent during armed conflicts, particularly if the withholding is committed by State authorities.
Also, all the other admissibility requirements such as that prosecutor have reasonable belief that a crime within the jurisdiction of the Court has been committed and investigation would not serve the interests of justice, or sufficient gravity of that act (Article 17 and 53 of the Rome Statute) are met in a situation of arbitrary withholding of consent to relief during armed conflict.
This topic was particularly discussed with regard to the vertical removal of immunity in the case where the arrest and surrender of Al-Bashir by Jordan was not provided, see on this Akande/De Souza Dias, ejil Talk Blog; see also Akande, ejil Talk Blog.
A particularly difficult intention to prove is the intention of genocide, see Bartels, p. 291, 294 f.
Hereto also Rottensteiner, p. 565.
Regarding an intention of a group in general and of an individual, see, Rottensteiner, p. 564.
For example, icty, Prosecutor v. Dragan Nikolic; and also icty, Prosecutor v. Milorad Krnojelac; on this topic, see Gillard, p. 34.
On the overall topic, see Rottensteiner, p. 559 and 565.
icty, Prosecutor v. Radislav Kristic, para. 653.
Farquhar, p. 37.
Bartels, p. 305.