The question of consent

Certain IHL provisions relating to relief operations are written in imperative terms.Footnote ⁵ Though IHL refers to the notions of “consent”Footnote ⁶ and “agreement”Footnote ⁷ in the context of relief operations, the requirement of consent must weigh not on the principle of providing assistance but only on the modalities of its provision. On this topic, Emmanuela-Chiara Gillard's article is instructive: the arbitrary refusal to allow relief operations constitutes a violation of IHL.Footnote ⁸

However, this conclusion too quickly skirts questions regarding the validity of consent from non-State parties to a conflict, as well as the “legality” of “unauthorized” operations mounted by non-governmental organizations (NGOs). Indeed, NGO relief activities are always provided with the de facto consent of the State or non-State party to the conflict in control of the territory concerned. This de facto consent obviously carries some legal weight, even when it is obtained from a non-State party to the conflict. It implies, inter alia, the obligation to respect humanitarian principles and personnel, and the prohibition on depriving people of goods and services essential to their survival. From a legal perspective, therefore, an agreement between an NGO and a non-State party to a conflict pursuant to which the NGO will provide impartial humanitarian assistance should not be considered as an act of direct participation in the hostilities, a hostile act or a crime under international law.

As for propositions intended to overcome the arbitrary refusal by a State party, they mainly rely on imposing sanctions to force the consent and the access. Such argumentation circumvents the prohibition of interference and intervention contained in IHL,Footnote ⁹ and risks feeding the notion that relief operations can only occur in the shadow of international military interventions.

Between the notions of “sovereign State” and “party to the conflict”: The stakes surrounding consent

There is a substantial difference between humanitarian principles adopted in the framework of the UN and those contained in IHL. Indeed, the Guiding Principles of UN humanitarian assistance were adopted in 1991 to regulate humanitarian relief operations in situations of natural disasters and other emergencies.Footnote ¹⁰ They do not mention armed conflicts and do not use the notion of “parties to the conflict” used in IHL. On the contrary, they stress that the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the UN Charter, and that humanitarian assistance should be provided with consent and, in principle, on the basis of an appeal made by the affected country. Even if the Guiding Principles do recognize that relief operations must be provided in accordance with the principles of humanity, neutrality, impartiality and independence,Footnote ¹¹ when it comes to the issue of consent, they recreate a constraint that IHL had previously limited. This constraint – requiring the State's consent – weighs more heavily on relief operations led by States or international organizations than on those led by private humanitarian organizations. Indeed, respect for sovereignty is a core principle of international law that is binding on States in their interactions with other States.

In contrast, IHL limits the national sovereignty principle, especially in non-international armed conflicts where one State is opposed to one or more non-State armed groups, or multiple non-State armed groups are fighting each other. Thus, IHL privileges the notion of “parties to the conflict” over the notion of State/High Contracting Party. Common Article 3 uses the expression “parties to the conflict”, imposing the same respect for fundamental humanitarian guarantees on both States and non-State armed groups. It also creates a right of humanitarian initiative for the International Committee of the Red Cross (ICRC) and any other impartial humanitarian bodies. It affirms that aid efforts and special agreements signed in non-international armed conflicts to facilitate the application of IHL will not affect the legal status of the parties to the conflict. Lastly, IHL affirms that humanitarian operations should not be regarded as interference in the armed conflict or as a hostile or unfriendly act.Footnote ¹²

Accordingly, the various references to consent listed above refer to “parties to the conflict”. The rationale is not to defend State sovereignty and territorial integrity but to bind all authorities (legitimate or de facto) using armed force or exerting control over territory and to remind them of their obligations. There is only one instance in which IHL refers to the consent of the State concerned, rather than to the consent of the parties to the conflict: Article 18(2) of Additional Protocol II (AP II), relative to relief operations in non-international armed conflicts. Opinions on the legal meaning of that specific provision were not unanimous during the negotiation of AP II, as some States showed more concern with preserving their national sovereignty than undertaking to facilitate relief action in all circumstances. However, logic should dictate that it is not possible to apply such an exceptional provision broadly and that States which did not ratify AP II cannot claim the benefit of that provision.Footnote ¹³ That same logic would hold that this prerogative was given to the State party to the conflict so that it could exercise consent over the territory under its control, and not so that it could forbid relief to (or impose relief and relief organizations affiliated with itself on) territory and populations over which it no longer maintains effective control.Footnote ¹⁴

In non-international armed conflicts, the notions of “parties to the conflict” and “effective control” are crucial keys to reading and interpreting IHL. Provisions of common Article 3 regarding special humanitarian agreements and the right of humanitarian initiative tend to validate both the ability of the non-State party to consent to relief operations, and the agreements made by and with them. IHL thus attempts to create a duty to facilitate and consent to the relief on the parties that are actually in control of the territory at issue and are therefore able to commit to providing or permitting humanitarian operations in the field. These central provisions governing non-international armed conflict should prevail when trying to interpret and apply apparently more restrictive provisions concerning the State's consent.Footnote ¹⁵ The obligation to consent lies obviously on the party that is effectively in territorial control.

Rules 55 and 56 of customary international humanitarian law concerning the authorization of humanitarian operationsFootnote ¹⁶ confirm that the general practice supports the link between the consent ability and the effective territorial control of each party and limits the consent to the right of control of the humanitarian nature of the relief. This link between consent and territorial control is also supported by the recent evolution in the terminology used in the UNSC's resolutions on the protection of civilians in conflicts, as well as in its resolutions on the situations in Syria and the Central African Republic. In them, the UNSC addresses “all Parties to the conflict”Footnote ¹⁷ and demands that the “Parties” abide by their obligations to respect and facilitate relief operations, thus including the responsibilities and obligations of the non-State parties to the conflict.Footnote ¹⁸ It is hard to contemplate how non-State parties to the conflict can have obligations to facilitate relief operations and to respect populations without also having their legal capacity to consent to such operations recognized.Footnote ¹⁹

It would be pertinent to limit the legal obstacles to providing relief born of the inter-State character of the humanitarian organizations within the UN family. This should include, in particular, the possibility of signing special agreements with non-State parties to the conflict, such as non-State armed groups, which is a necessary prerequisite in terms of relief operations and which is already granted by IHL to impartial humanitarian bodies. Provisions of common Article 3 providing that such special humanitarian agreements shall not affect the legal status of the parties to the conflict could enable this evolution and provide an appropriate framework within which to protect humanitarian actors from the criminalization of aid delivered to victims of conflict living in areas under the effective territorial control of armed groups placed on “terrorist” lists.

The medical mission: Beyond consent and borders

Among the diverse forms of humanitarian action, IHL regulates the medical mission around a permanent imperative: to collect and treat all sick and wounded without discrimination other than that based on medical criteria.

This is historically the first and primary relief activity regulated by IHL.Footnote ²⁰ Subsequent legal developments have extended that protection to all types of conflicts, and to all wounded and sick. They have also widened the scope of IHL to protect other categories of victims of conflict and other types of relief activities.

The “obligation of results” contained in common Article 3 is found in a series of IHL rules protecting the entire operational chain of medical relief: special status for the wounded and sick and for medical staff and facilities; equipment and safe modes of transportation; and a specific protective emblem.Footnote ²¹

IHL protects the legal autonomy of the medical mission within the mandatory rules of medical ethics pertaining to that profession. As such, the medical mission is not subject to the criteria, formalities and conditions regarding consent that other relief activities are subject to, including those relating to access and control over relief organizations, nature of relief and beneficiaries.

Therefore, and in accordance with medical ethics, any shackles imposed by a State or a non-State party to the conflict on medical activities, whether cross-border or otherwise, should invariably be considered as arbitrary from the point of view of IHL.

This special legal protection is commensurate with the constant threats and attacks affecting medical missions due to the strategic value assigned to them by some belligerents.Footnote ²² Destroying or controlling medical facilities and therefore access to medical care is often used and abused to impose terror on the population and deter opposition groups from participating in hostilities. Moreover, the outrageous and illegal nature of such direct attacks should not distract us from equally lethal indirect attacks, especially the abusive use of some domestic legal provisions converting medical relief into a weapon of war to the advantage of the State party to the conflict.

This is particularly important in non-international armed conflicts because of the legal asymmetry between the parties to the conflict. In such contexts, there is a clear need to ensure that reference to sovereignty and domestic law does not contradict or eviscerate the fundamental principles of IHL protecting the medical mission. From an operational perspective, some legal questions must now receive clear answers. Can the State use sovereignty arguments to prevent medical care from being provided to people over whom it no longer has effective control? Can the State use the provisions of domestic law to turn (lack of) access to medical care into a weapon of war? As for access, the arbitrary and abusive interpretation of domestic law on medical care should be limited by clear international guidelines.

In non-international armed conflicts, the most common threat to medical care to the wounded and sick comes from a “police reporting” standard clause present in almost every domestic law. Such clauses require doctors to report certain communicable diseases or specific patients (such as people with gunshot wounds) to health authorities or the police. In time of peace, such clauses can be justified by legitimate State concerns with regard to public health and safety. In such a scenario, respect for medical confidentiality is generally taken into consideration when balancing the benefits of such a practice. However, in armed conflict, the validity and interplay of such domestic clauses with IHL is almost never addressed by IHL experts, either in theory or by challenging the practices of national authorities. Indeed, asking for patients' names, entering hospitals to interrogate or arrest patients, forcing the wounded to be treated in military facilities,Footnote ²³ or criminalizing medical activity under the guise of a “fight against terrorism” or the maintenance of law and order should be objected to in a coherent, consistent and systematic manner.

The fact that humanitarian NGOs do not benefit from immunity from domestic law creates risks that should be clarified from an IHL perspective; IHL should limit the application of such controversial provisions, especially with regard to the medical mission and the criminalization of certain medical activities that are considered to “support terrorism”. This is particularly important in non-international armed conflicts due to the legal asymmetry created in favour of the State party to the conflict and has been pushed to its height in the current Syrian conflict.Footnote ²⁴

However, the two Additional Protocols to the Geneva Conventions give a clear answer to these questions. Articles 16 and 10 of Additional Protocol I (AP I) and Article 10 of AP II establish the principle of administrative, security and legal immunity for medical staff, whatever the circumstances and whoever the beneficiary. The only corollary is the requirement for staff to fully comply with the rules of medical ethics.Footnote ²⁵

In light of domestic legal provisions that require reporting despite otherwise applicable medical confidentiality obligations, AP IFootnote ²⁶ explicitly forbids medical staff from releasing information on the wounded and sick to the opposing side, regardless of any provisions in domestic law. It also forbids the transmission of data to the party to which the sick or wounded person belongs if the health-care personnel have reason to fear that such information could harm patients or their families.

The residual reference to domestic law left in Article 16(3) does not suffice to change the prohibition into a self-executing obligation. It remains an exception to a prohibition leading, even within domestic law, to a case-by-case judgment balancing the necessity to protect legal principles such as medical confidentiality against procedures purportedly designed to protect law and order. The decision is primarily taken by the medical practitioner in line with the overarching binding principles of medical ethics and the best interests of the patient. In case of disagreement, the final judgment is left to a judge and not to administrative authorities.

Ultimately, Article 16 of AP I confirms this dual obligations mechanism by spelling out only one exception to medical confidentiality under humanitarian law, in cases concerning the notification of communicable diseases.Footnote ²⁷ Such notification to the health authorities for the sake of public health arguably does not infringe on the patient's right to medical confidentiality since it can be provided on a “no names” basis.

By doing so, Article 16 recognizes that reporting patients with gunshot wounds is no longer a legal obligation in a period of conflict, but rather falls within the judgement of the doctor, who is duty-bound to prioritize his/her ethical obligation to “do no harm”. This position has been established by the jurisprudence of various countries under their domestic law, which recognizes and arbitrates the duality of obligations relating to medial confidentiality, even during peacetime.Footnote ²⁸ It also corresponds with the rules of the Istanbul Protocol regarding doctors' obligations when faced with instances of torture, which clearly state that medical ethics must prevail over other conflicting legal obligations.Footnote ²⁹

In non-international conflicts, the wording of AP II Article 10 differs slightly but retains the same objective. It is thus erroneous to read this article as “forcing” medical staff to notify the authorities of wounded patients and to blindly obey domestic law.Footnote ³⁰

National sovereignty and IHL interpretation: The new role of the UN Security Council

Cross-border relief activities have always been an alternative to the arbitrary denial of State consent to relief activities. Historically, only private humanitarian NGOs have carried out relief activities which were “unauthorized” by the State.Footnote ³¹ The specific legal framework of the medical mission justifies the legal freedom claimed by organizations like Médecins Sans Frontières (MSF), compared to others like the ICRC, which have been given a legal mandate by IHL that includes more constrained relief activities in terms of consent from parties to the conflict.Footnote ³²

Whatever the state of the legal debate regarding access for humanitarian relief or for the medical mission, the main obstacle to the implementation of IHL goes well beyond the arbitrary nature of withholding consent for relief operations. Indeed, interpretation of IHL applicable to a given armed conflict cannot be left to the sole decision of a State party to that conflict, without jeopardizing the application of IHL principles to the conflict.

The use of international military forces was developed in the early 1990s to impose humanitarian aid and override consent by the concerned parties.Footnote ³³ But beyond the fact that this solution is not always available due to the lack of consensus within the UNSC, and not always effective in terms of improving the safety of the population, it also runs counter to the prohibition of intervention and interference contained in IHL and the non-violent and neutral character of relief operations.Footnote ³⁴

The UNSC's stalemate on the use of force in the Syrian case prompted it to explore other ways to strengthen the right to assistance and to humanitarian access. In passing its resolutions on the Syrian crisis, the UNSC has developed a coherent doctrine on the interpretation of IHL, making clear that the right to assistance and to humanitarian access is no longer the monopoly of the State party to the conflict.Footnote ³⁵ This counters certain abusive sovereignty-based interpretations of IHL that have led to arbitrary denial of assistance and to the use of aid as a weapon of war.

Thus, the UNSC has recognized the concept of arbitrary denial of humanitarian access, and pointed out that such arbitrary denial can constitute a violation of IHL.Footnote ³⁶ It has further asserted that the obligation to consent weighs on both parties, including the non-State party. As a consequence, consent does not lie solely with the State in the case of non-international armed conflicts, nor is it a right that the State can abuse in order to weaken the opposing party or punish the population.Footnote ³⁷

The UNSC has also established that the medical profession must be neutral, that all medical facilities must be demilitarized, and that medical staff, material and transportation must be granted freedom of movement. It has thus clearly prioritized the rules of IHL regarding the neutrality and independence of medical missions over the rules in domestic law that could transform doctors and medical facilities into proxies for the authorities.Footnote ³⁸

Finally, the UNSC was led to revive a lapsed provision of IHL, by deciding to open four border posts for relief operations without the consent of the Syrian State in order to avoid a deadlock caused by the UNSC's inability to reach a consensus on the use of coercion.Footnote ³⁹ The creation of a monitoring mechanism for relief convoys under the responsibility of the UN Secretary General mirrors IHL's requirement that relief operations in the context of international armed conflicts be entrusted to a neutral body, the “Protecting Powers” (or delegated to the ICRC as a “substitute for the Protecting Powers” in the event that the parties to the conflict fail to come to an agreement about the Protecting Powers). This mechanism effectively removes from the parties to the conflict their prerogative to inspect and control relief – and consequently, their right to consent and their capacity to limit such relief.

The Syrian armed conflict being of a non-international character, the ICRC was not in a position to legally impose such a mechanism and remained constrained by the requirement that it fulfil its full humanitarian mandate only with the Syrian government's consent.

At the same time, MSF decided that due to the medical nature of its activities, those activities could legally be carried out without governmental consent in areas outside of the Syrian government's territorial control, where MSF's principled humanitarian activities were consented to by the de facto authorities in territorial control of those areas. In line with the same legal reasoning, and because of the Syrian government's refusal to consent to MSF's presence and activities, MSF abstained from providing direct relief in areas under the government's territorial control.

By reviving this mechanism and applying it to a non-international armed conflict such as Syria, the UNSC returned to IHL the effectiveness and autonomy it needs when faced with an abusive interpretation of law by the belligerents. It has also, paradoxically, restored the spirit and independence of the law and distanced it from the logic of sovereignty or recourse to international force. This unanimously adopted humanitarian resolution on a conflict, which has rendered manifest a collective political impotence to bring to a halt such unprecedented levels of violence and atrocity, may bring with it the foundation for a new humanitarian consensus within the international community.