Alannah Travers

The Right to Humanitarian Assistance

SOAS Project on The Right to Humanitarian Assistance – January 2025

Executive summary:

This research project, undertaken by the SOAS Centre for Human Rights Law in Autumn 2024, investigates the right to humanitarian assistance within the frameworks of International Humanitarian Law (IHL), International Criminal Law (ICL), and International Human Rights Law (IHRL), focusing on the crises in Gaza and Sudan. It aims to advance a rights-based approach to humanitarian assistance by mapping relevant legal instruments, examining case studies, and analysing legal discourse and challenges in practice.

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Objectives and scope:

The project considers the legal discourse on humanitarian assistance in the contexts of Gaza and Sudan, by examining the framing of aid as a legal obligation versus a humanitarian or operational challenge. It also explores the influence of international actors, such as the UN, ICC, and ICRC, on shaping narratives around state responsibilities. As set out, it focuses in particular on the following three key areas of international law:

1. International Humanitarian Law (IHL)

- Recognises the right to humanitarian assistance in situations of armed conflict. Foundational treaties, including the Fourth Geneva Convention and Additional Protocols, impose obligations on state and non-state actors to ensure unimpeded humanitarian access. Customary IHL principles, such as Rule 55 of the ICRC’s study, reaffirm these rights.

- Case law, including Prosecutor v. Radovan Karadžić, underscores the criminality of obstructing aid as a coercive tactic.

2. International Criminal Law (ICL)

- Criminalises the deliberate denial of humanitarian assistance when it amounts to war crimes, crimes against humanity, or genocide. For example, the Rome Statute of the ICC (Articles 7 and 8) prohibits using starvation as a method of warfare.

- Recent ICC jurisprudence, including arrest warrants for Israeli officials, highlights accountability mechanisms for such violations.

3. International Human Rights Law (IHRL)

- Though not explicitly articulated as a standalone right, IHRL incorporates access to essential goods and services through rights to life, food, health, and water. Instruments like the ICESCR and ICCPR obligate states to uphold these rights even during emergencies.

- The ECtHR has addressed related obligations in its interpretation of Articles 2 and 3 of the European Convention on Human Rights (ECHR).

Key Findings:

Gaza

• The Israeli blockade and restrictions on humanitarian aid are framed by critics as violations of IHL and IHRL. The ICJ and ICC have issued rulings and arrest warrants that highlight the legal and humanitarian dimensions of these practices.
• Operational challenges, such as inadequate crossings and targeted attacks on aid infrastructure, exacerbate the crisis - and continue to do so.
• Humanitarian organisations face difficulties balancing neutrality and advocacy for legal accountability.

Sudan

• The conflict has created widespread displacement, famine, and violence. Humanitarian access is impeded by insecurity, looting, and logistical barriers.
• Localised initiatives, such as Emergency Response Rooms, supplement international efforts but are hindered by resource and protection challenges.
• Both state and non-state actors manipulate aid delivery for political leverage, undermining compliance with IHL principles.

Recommendations:

- Strengthen international mechanisms for monitoring and enforcing the right to humanitarian assistance.

- Promote the adoption of detailed protocols outlining rights and obligations related to aid provision.

- Enhance support for local actors and community-driven responses.

- Address funding shortfalls through multilateral coordination

Our research shows the interconnectedness of humanitarian assistance and international legal obligations. By focusing on Gaza and Sudan, the project highlights the need for robust legal frameworks, enhanced accountability, and a rights-based approach to addressing humanitarian challenges. These measures are critical for ensuring the protection of civilians and upholding the principles of international law in conflict and crisis settings. Aside from the obvious security risks for aid workers and civilians caught up in this horror, key challenges include the barriers imposed by parties to the conflict, as well as the politicisation and weaponisation of aid, compounded by insufficient funding.

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1. International Humanitarian Law (IHL)

Focus Areas:

- Recognition of the right to humanitarian assistance under IHL (sources).

There is a clear right to humanitarian assistance under IHL, addressed in the IV Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949:

• Article 23

“Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) That the consignments may be diverted from their destination;

(b) That the control may not be effective; or

(c) That a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make such permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.

Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.”

• Article 24

“The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.

The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph.

They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means.”

• Article 55

“To the fullest extent of the means available to it the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods.

The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements.”

• Article 59

“If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.

Such schemes, which may be undertaken either by States or by impartial humanitarian organisations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.

All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.

A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.”

The right to humanitarian assistance is also recognised under customary IHL, e.g. Rule 55 of the International Committee of Red Cross (ICRC)’s Study on Customary IHL: https://casebook.icrc.org/case-study/icrc-customary-international-humanitarian-law

a) Starvation and Access to Humanitarian Relief:

Rule 55. The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control. [IAC/NIAC]”

The right has been confirmed in numerous case law starting from Prosecutor v Radovan Karadžić (Judgment) IT-95-5/18-T (ICTY, 24 March 2016), where the ICC found obstruction of humanitarian aid during the Siege of Sarajevo and in Srebrenica to be an international crime. It was also found that the accused used obstructing humanitarian aid as a method of coercion towards the local inhabitants to leave the area.

‘In March 1995, the Accused issued Directive 7, ordering the Drina Corps to create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica. Following the issuance of Directive 7, restrictions on humanitarian aid and UNPROFOR re-supply convoys intensified, resulting in disastrous conditions in the Srebrenica enclave.’ www.icty.org/x/cases/karadzic/tjug/en/160324_judgement_summary.pdf

b) Identification of right-holders and duty-bearers:

Again, these are explicitly specified in the Geneva Convention.

- Right Holders:

Geneva Convention Relative to Protection of Civilian Persons in Time of War 1949

1. Civilians

Part II - Articles 13 - 26

Article 27 (Additional Protection for Women and Children)

“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”

Article 59 (quoted before)

Duty bearers:

“Concerning occupied territories, the Fourth Geneva Convention imposes an obligation on the occupying power to ensure food and medical supplies for the population. The duty to distribute the aid can be delegated to an impartial NGO e.g. Red Cross or Red Crescent.”

Article 59 -

There is a further Human Rights dimension of the duty of occupying powers, specified in the case of Cyprus v Turkey (2001) ECHR 331.

Obstruction of humanitarian aid, as shown in case law often has been committed indirectly

as could be clearly seen in the Karadžić case.

Also, in Prosecutor v Bosco Ntaganda (Judgment) ICC-01/04-02/06 (ICC, 8 July 2019) it was made clear that non-state actors (in this case rebel groups) are also under the duty to ensure that humanitarian aid is accessible to the population. i.e. the accused was charged on the following relevant counts:

g) Pillage as a war crime (Count 11) - one of the goods pillaged was harvest of a village, which left the villagers without food supply

h) Forcible transfer of population as a crime against humanity (Count 12) -

l) Destroying the adversary’s property as a war crime (Count 18) - burning down houses in several villages

Obstruction of humanitarian aid will not always be caused by direct interference e.g. repeated attacks on civilian population which force them to flee the area, destruction of infrastructure, all will create significant barriers to the access of humanitarian aid.

As could be seen in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14 third parties i.e. states also bear the duty to respect international humanitarian law.

c) Scope of the obligation (access and modalities of assistance).

- Parties to a conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, as long as the aid is impartial and humanitarian in nature.

Additional Protocol I (Article 68 - 70)

- The delivery of humanitarian relief in international and non-international armed conflicts.

Additional Protocol II (Article 18):

- Humanitarian personnel should be protected, but also the personnel should not exceed the permission they have - i.e. to provide humanitarian assistance

Additional Protocol I (Article 71)

- The affected state must consent to receive humanitarian aid. However, the state cannot arbitrarily withhold their consent if the civilian population faces severe deprivation.

- In case of occupation, the occupant must ensure that there is a provision of essentials such as water, food, medical supplies etc to the occupied population. The occupant must also ensure that a fair value is paid for the essential goods.

Fourth Geneva Convention (Article 55, 59)

d) Application and interpretation by States, ICRC, UN bodies, etc.

Examples of the application and interpretation by States (I will focus here on other states than Sudan and Gaza, because these were covered very well already by my colleagues):

Myanmar

• Rohingya refugees flying to Bangladesh experienced desperate shortage of essentials in refugee camps - people in camps could rely only on the generosity of individuals e.g. their relatives
• HRW observed that the military junta has been deliberately blocking humanitarian aid
• Also there was severe shortage of funding for the humanitarian aid - only 18% of the required assistance was received
• HRW called to neighbouring countries to facilitate emergency cross-border aid
• Local communities who attempted to support refugees were harassed by security forces, humanitarian aid workers frequently arrested
• Junta confiscated and often destroyed the aid.

Ukraine

Russia was consistently delaying establishing humanitarian corridors, even that was prompted to do it by NGOs and the International community. It could be interpreted as an attempt to force the civilian population to relocate to Russia controlled territories. Civilians were prevented from leaving by continuous shelling. For the same reasons the access of humanitarian organisations to provide aid has been very limited in multiple cities. (Amnesty Report). It has been noted by HRW that flawed Ukrainian legislation criminalising collaboration with occupying Russia had humanitarian aid workers prosecuted and imprisoned.

Syria

• 7 out of 10 people need humanitarian assistance

• Humanitarian access in Syria is challenged by active conflict, geopolitical dynamics, and interference by parties in control and armed groups. In some areas, border crossings are closed periodically and there are armed hostilities or air strikes
• Government has been obstructing aid delivery (HRW)
• Security council members i.e. Russia forced closing border crossings for aid delivery

e) Key challenges in practice and responses from states, the ICRC, and regional and international bodies.

1. Security concerns v Obligations under IHL to provide humanitarian assistance

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.

Israel invoked security concerns and the right to self defence when accused of deliberate obstruction of the aid.

Page 10 –

It appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention

Only Article 53 of the Fourth Geneva Convention contains a relevant provision of this kind, and finds that, on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in that Article were “rendered absolutely necessary by military operations” so as to fall within the exception.

“the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001) and 1373 (2001)”

There are strict rules in IL stating when the right to self-defence arises and when the security argument can be invoked i.e. there must be an immediate threat. The Court found that in this case these rules were not fulfilled.

2. The access to humanitarian aid has been often weaponised, as could be seen in most recent conflicts - aid blockage, persecution of aid workers are very often present – e.g. Look at (d).

3. Ethics of humanitarian relief

• Humanitarian NGO began to resemble firms - where their product is giving a sponsor an ‘ethical brand ‘ reputation. Their survival and efficiency is often dependent on their ability to attract sponsors.

• Some of the aid organisations i.e. Oxfam, CARE, and Save the Children are funded by private capital (Barnett)
• The possibility of companies known from their unethical practices (e.g. Walmart) to get involved and sponsor humanitarian aid - the moral dilemma whether this should be acceptable
• The question whether private companies supporting humanitarian aid are really disinterested/neutral, in some cases they may be directly or indirectly supporting the occupant(s)
• Critique from recipients of the aid that international NGO spent more on themselves than on the aid itself
• Who leads the organisation - people from within war-torn societies, people with long standing relationships with communities in the war zones, people with no roots on the ground?

4. Accountability of the humanitarian organisations (Barnett)

• Potential accountability to funders - and then we go back to point 3 - who are their funders?
• Accountability to the people they are expected to support - but who could enforce that?
• What victims want may compete with humanitarian organisations objectives i.e. victims not interested in using resources towards health/educational services for women

5. Logistical challenges

• On regular basis humanitarian aid has been appropriated by military and security forces to prolong the conflict (Barnett) - therefore there is the dilemma whether the humanitarian efforts sometimes are not harmful

6. Attacks on humanitarian aid workers and infrastructure (Barnett)

• Even that it is a war crime, it is quite common, often resulting in death of staff

• Sometimes aid workers are seen as Western agents. Impartiality is questioned.
• Risk to national staff disproportionately higher than to expatriate staff
• Workers themselves express concerns that the humanitarian agencies’ impartiality became compromised (clear relation to funding sources!) and therefore it no longer provide the expected level of security
• Form of terrorism?

7. Increased militarisation of humanitarian aid - often soldiers act as aid workers distributing the aid (Barnett)

• How does this work in the context of core principles of humanitarian aid: neutrality, impartiality and independence?
• USA activities in Iraq and Afghanistan since 2001 - e.g. the simultaneous dropping of bombs and relief food rations,, using USAID to rebuild infrastructure destroyed during conflict (Barnett).

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2. Avenues of legal enforcement:

The ICRC proposed specifying the rights and obligations of the victims and the providers of humanitarian assistance in order to ensure tailored help and avoid ambiguity - https://international-review.icrc.org/sites/default/files/S0020860400023159a.pdf

“It would not be sufficient merely to recognize the right to humanitarian assistance; an effort should be made to work out in detail the rights and duties of the various groups involved in an operation to provide such assistance, both the victims and the organizers of the operation. Only in this way can the right to humanitarian assistance be complete. Some of the rights and duties, and matters to be settled in relation to them, are listed below:”

• The right of victims to demand humanitarian assistance in cases when their basic human rights cannot be ensured by regular services;
• the question whether the victims themselves or others acting on their behalf are authorized to demand humanitarian assistance ;
• the conditions under which humanitarian assistance becomes necessary, generally when the population is not adequately supplied with basic necessities;
• the right and the duty to offer humanitarian assistance;
• the types of assistance to be rendered to satisfy basic needs;
• the duty of States to authorize the transit of shipments and personnel;
• the procedure for demanding and for deciding whether to pro- vide humanitarian assistance;
• the procedure for the reception and utilization of humanitarian assistance;
• various facilities for the goods and personnel necessary to develop this activity;
• monitoring the use made of the assistance to ensure that this is in conformity with agreed objectives;
• the status of personnel involved in humanitarian assistance activities;
• international coordination of humanitarian assistance.

1. International Courts

• ICJ

The ICJ has the authority to interpret IHL and its application to humanitarian assistance. It can issue decisions in contentious cases which are binding on the parties involved (obstruction of humanitarian aid). The Court can also order provisional measures to protect rights pending final judgements. These are legally binding and can be used to ensure immediate humanitarian access.

• Nicaragua v United States (1986) - “There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.”

• South Africa v Israel (2024) - “(5) The State of Israel shall, pursuant to point (4) (c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:

(a) the expulsion and forced displacement from their homes;

(b) the deprivation of:

(i) access to adequate food and water;

(ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;

(iii) medical supplies and assistance; and

(c) the destruction of Palestinian life in Gaza:

• South Africa v Israel (2024) - “It is necessary to “[t]ake all necessary and effective measures to ensure, without delay, in full cooperation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance”

• ICC

Under Article 5 of the Rome Statue of the ICC, the ICC has jurisdiction over four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. While the scope of ICC power in relation to humanitarian assistance is rather limited, it could be argued that violations related to humanitarian aid can potentially fall under its jurisdiction, specifically under war crimes and crimes against humanity.

• Rome Statute of the ICC Art 8(2)(b)(xxv) criminalises “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies”
• Rome Statute of the ICC Art 8: The denial of humanitarian assistance could potentially constitute “wilful killing” or “murder” under Article 8 if civilians die as a clear result of unlawful denial of aid
• Rome Statute of the ICC Art 7: For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

• Systematic denial of humanitarian assistance could potentially be prosecuted as a crime against humanity if it leads to murder, extermination, or other inhumane acts (?)

1. UN Mechanisms

• General Assembly:

• General Assembly Resolution 302 (IV) of 8 December 1949: establishment of UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East) which plays a significant role in providing humanitarian assistance to Palestinian refugees. It provides a legal basis for its humanitarian work and is tasked with providing “assistance and protection to Palestine refugees pending a just and lasting solution to their plight” it provides essential services such as education, healthcare, relief, social services, and emergency assistance to Palestinian refugees

• Security Council:

• In some cases, the Security Council has the power to authorise cross-border humanitarian access without state consent
• Example: Authorisation of access into Syria without the Syrian government's consent through Resolution 2165, adopted on July 14, 2014 (though the authorisation was enabled by multiple resolutions). Under Resolution 2165, UN humanitarian agencies and their partners could use routes across conflict lines and four specific border crossings (Bab al-Salam, Bab al-Hawa, Al Yarubiyah, and Al-Ramtha) to ensure humanitarian assistance reaches people in need in Syria.
• Humanitarian assistance exemptions in sections - provisions in place aiming to minimise the unintended consequences of sections of humanitarian aid
• Resolution 2664 (2022): “Decides that without prejudice to the obligations imposed on Member States to freeze the funds and other financial assets or economic resources of individuals, groups, undertakings, and entities designated by this Council or its Sanctions Committees, the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs by the United Nations, including its Programmes, Funds and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations, international organizations, humanitarian organizations having observer status with the United Nations General Assembly and members of those humanitarian organizations, or bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals, or OCHA-coordinated humanitarian “clusters,” or their employees, grantees, subsidiaries, or implementing partners while and to the extent that they are acting in those capacities, or by appropriate others as added by any individual Committees established by this Council within and with respect to their respective mandates, are permitted and are not a violation of the asset freezes imposed by this Council or its Sanctions Committees”

1. The European Court of Human Rights (ECtHR):

• Serves as a crucial legal avenue for enforcing the right to humanitarian assistance, primarily through its interpretation and application of the European Convention on Human Rights (ECHR)
• While the ECHR does not include a provision directly relating to the right to humanitarian assistance, it protects rights related to humanitarian needs, such as the Right to Life (Article 2) or the Prohibition of Inhuman or Degrading Treatment (Article 3)

• Right to Life (Article 2): States are obligated to take necessary measures to protect lives, which includes ensuring access to humanitarian aid in emergencies. The Court has ruled that failing to provide adequate assistance can constitute a violation of this right, particularly when individuals are in life-threatening situations.
• Prohibition of Inhuman or Degrading Treatment (Article 3): This article prohibits states from subjecting individuals to conditions that could lead to suffering or harm. The ECtHR has interpreted this to mean that states must ensure access to basic necessities, including food, water, and medical care, especially during crises.

• Although the ECtHR was created to guarantee respect for the ECHR, the Court has declared itself competent to receive applications concerning violations of international human rights law (IHRL) as well as international humanitarian law (IHL) in situations of armed conflict and military occupation and State anti-terrorism regulations and practices
• The ECtHR has thus passed judgment on cases concerning situations of armed conflict such as Northern Ireland, Cyprus, Chechnya, Ukraine and Russia, Georgia and Russia, Armenia and Azerbaijan. The ECtHR has also passed judgment on cases concerning Turkey’s antiterrorism military operations and regulations and other antiterrorist legislations and practices in European countries after the terrorist attacks of 2001 in New York, United States. It has also ruled on the conditions of the United Kingdom’s military intervention in Iraq in 2003 as part of the United States-led Multi-National Force. The ECtHR’s jurisprudence addresses a certain number of legal points that are subjects of international debate

https://guide-humanitarian-law.org/content/article/3/european-court-of-human-rights/

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3. International Criminal Law:

Humanitarian assistance in the context of international crimes/armed conflicts.

The role of International Criminal Law (ICL) in safeguarding humanitarian assistance during armed conflicts is much focused on. ICL addresses the denial of aid, especially when it intersects with international crimes such as genocide, war crimes, and crimes against humanity. Under the Rome Statute of the International Criminal Court (ICC), obstructing humanitarian aid can constitute a serious violation, particularly when it results in the severe deprivation of essential resources. For instance, the Rome Statute explicitly identifies "intentionally using starvation of civilians as a method of warfare" as a war crime (Article 8(2)(b)(xxv)). Such actions, which deliberately impede relief supplies and endanger civilian populations, lie at the core of contemporary humanitarian challenges.

Denial of humanitarian assistance as an international crime:

The deliberate denial of humanitarian aid may rise to the level of an international crime when it results in significant harm to civilians. Notably, the ICC has recently issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, accusing them of crimes against humanity. These charges include using starvation as a method of warfare and intentionally targeting civilians. (Associated Press, 2024).

Starvation as a method of warfare:

Starvation as a method of warfare is explicitly prohibited under international law. This principle is reinforced by the ICC’s arrest warrants against Israeli officials, which allege the use of starvation tactics against civilians in Gaza. These actions underscore the gravity of such practices under ICL and highlight the international community’s responsibility to prosecute and prevent such violations.

Challenges and ICJ jurisprudence on Gaza:

The International Court of Justice (ICJ) has addressed issues of humanitarian access in Gaza. In January 2024, the ICJ ordered Israel to take all measures within its power to prevent acts of genocide against the Palestinian people. This included ensuring the provision of humanitarian assistance (ICJ, 2024). In March 2024, the ICJ reaffirmed these measures, further ordering Israel to ensure "the unhindered provision at scale… of urgently needed basic services and humanitarian assistance, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary". (Times of Israel, 2024).

Duty to prevent genocide and denial of aid:

States have an obligation under the Genocide Conventions to prevent genocide. The ICJ’s orders to Israel show the connection between the denial of aid and risk of genocide. Obstructing aid can contribute to conditions conducive to genocidal acts (ICJ, 2024).

ICC’s recent actions:

On 21 November 2024, the ICC issued arrest warrants for Netanyahu and Gallant based on allegations of:

1. War Crimes: Using starvation as a method of warfare, a violation of international humanitarian law.

2. Crimes Against Humanity: Including murder, persecution, and other inhumane acts. These charges involve systematic killings, deprivation of fundamental rights based on discriminatory grounds, and acts causing great suffering as part of a widespread attack on civilians (ICC, 2024). Despite these charges, Israel has categorically rejected the ICC’s authority, calling the decision legally flawed and politically motivated (Reuters, 2024).

Jurisdictional/immunity challenges:

Israel’s objection to ICC jurisdiction was deemed premature, reinforcing the ICC’s authority even over non-Rome Statute signatories. Additionally, the ICC reaffirmed that heads of state are not immune from prosecution under customary international law, a stance that remains controversial.

Global responses to the ICC decision:

Reactions to the ICC’s actions have been politically driven and politically mixed, with countries such as South Africa, Belgium, and Colombia vocally supporting the ICC’s decision and pledging compliance. In contrast, the US, Hungary, France and Austria have condemned the decision, claiming that it undermines international law and/or unfairly equates democratic leaders with terrorist organisations/breaches the principle of head of state immunity. The UK has acknowledged the ICC’s independence but refrained from clear positions on compliance. See: Just Security, 2024.

In Iraq, the GoI has expressed its strong support for the ICC’s decision to issue arrest warrants for Israeli officials. Basim Alawadi, the Iraqi Government Spokesperson, stated:

"The Government of Iraq (GoI) highly appreciates the brave and just stance taken by the International Criminal Court (ICC) in issuing arrest warrants for the Zionist Prime Minister and his former Defense Minister. These warrants are based on indictments accusing them of committing war crimes and crimes against humanity against the Palestinian and Lebanese peoples. This historic decision reaffirms that, no matter how long injustice prevails or attempts are made to sustain it, justice and truth will ultimately prevail and stand against oppression. The decision also serves as a form of justice for the innocent lives and martyrs lost during the criminal war waged by the Zionist entity against Gaza and Lebanon for over a year. While we commend this significant step towards achieving justice on a global scale, we reiterate our call to end the war. We urge all free nations to act on this decision and hand over the accused to the competent courts so they may face justice for the flagrant violations they have committed against humanity."

What a fascinating litmus test!

Academic perspectives:

Abdelghany Sayed, a researcher in international law at Kent Law School and former legal analyst at the Office of the Prosecutor of the International Criminal Court, has condemned a December 2024 Washington Post editorial on the ICC’s arrest warrants for Israeli officials: ‘The International Criminal Court is not the venue to hold Israel to account’. He highlights jurisdictional limitations and the ICC’s complementarity principle, which emphasises the court’s role when domestic systems fail to prosecute crimes. Sayed argues that prosecuting Israeli officials strengthens the ICC’s legitimacy and counters accusations of selective justice (Al Jazeera, 2024). Sayed also portrays the ICC's actions as minimal but necessary, driven by the magnitude of Israeli conduct – rather than bias.

Conclusion:

International Criminal Law seeks to stress the importance of ensuring humanitarian assistance during conflicts. The deliberate denial of such aid, particularly when used as a method of warfare, can constitute international crimes such as war crimes and genocide. Recent ICJ jurisprudence on Gaza and the ICC’s actions highlight the legal obligations of states and the international community to prevent and address such violations. By prosecuting those responsible for obstructing aid and committing atrocities, ICL seeks not only justice but also the preservation of humanitarian principles in times of crisis.

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4. International Human Rights Law (IHRL):

Recent humanitarian situation snapshot: According to the United Nations Office for the Coordination of Humanitarian Assistance (OCHA), as of 11 November 2024 75% of total planned coordinated movements for humanitarian assistance in north Gaza and 59% in south Gaza were either impeded, denied by Israeli authorities or caused humanitarian organisations to cancel facilitation requests for humanitarian access owing to logistical, operational or security reasons.[1] From 27 October to 9 November, UN partners reported significant challenges for the provision of humanitarian aid concerning health, nutrition, food security, logistics, water, sanitation and hygiene (WASH), shelter and non-food items (NFIs), protection, education and emergency telecommunications (ETC).[2]

The Rights-based Approach (RBA) to Humanitarian Aid:

Gaza

The rights-based approach to humanitarian aid is purported to focus on rights instead of needs[3]. However, when rights give way to other policy concerns or its political costs are too high, RBA might not be taken seriously.[4] In the Palestinian context, the RBA has been a source of frustration for humanitarians instead of a tool for making humanitarian governance more accountable to affected people and less subject to the whims of Israel.[5] The failure to secure the rights of Palestinians has shown that invoking rights in humanitarian work has offered little effect as human rights are secondary to international relations.[6]

Universal Periodic Review (43rd Session – May 2023):

In the most recent cycle of Israel’s Universal Periodic Review (43rd Session), the country was inconsistent, and at times contradictory, in supporting recommendations related to Palestinians. Israel supported a limited number of recommendations linked to Palestinians to address (Note: I’ve only highlighted the ones that can be linked to humanitarian assistance):[7]

- Inequalities and fight (racial) discrimination

- NGOs, journalists, human rights defenders carrying out their work unhindered

Israel ‘noted’ (ie: rejected) the majority of recommendations linked to Palestine/Palestinians addressing (Note: This included the sole recommendation for unrestricted access to humanitarian aid):[8]

- Ending the apartheid system against Palestinians and combat all forms of discrimination

- Repeal legislation endorsing racial discrimination used to justify the oppression and discrimination of Palestinians

- Recognising the right to self-determination of Palestinians/ending illegal Israeli occupation/stopping settlement expansion

- Protect the rights of Palestinian civilians living under occupation according to international humanitarian and human rights law

- Ending aggression, attacks and excessive use of force against and unlawful killings of Palestinians and ensure those responsible are held accountable

- Ending illegal detention of Palestinians and corresponding torture, including lack of hygiene, basic services and denial of medical care

- Protection and promotion of human rights in the Occupied Palestinian Territories related to land, housing and basic services

- Lifting the Gaza Strip blockade and guarantee full access to all basic services (including drinking water) for the Palestinian population

- Guaranteeing the right to adequate housing

- Combating violence and discrimination against all women and girls including in Occupied Palestinian Territory

- Cooperate with UN bodies, human rights mechanisms and international judiciary, including allowing them unfettered access to Israel and Occupied Palestinian Territory and heeding to their recommendations to improve human rights and humanitarian situation

- Ensuring unhindered access of aid, goods and services

The Right to Humanitarian Assistance in International Human Rights Law:

Human rights law related to the provision of humanitarian assistance is approached from the possible right to receive assistance instead of the obligation of the state.[9] Nonetheless, based on the definition of humanitarian assistance, the most applicable human rights are the right to life, food, health and water.[10]

Broadly, the phrasing of “the right to humanitarian assistance” is not mentioned in many international and regional treaties (relevant to Israel) except in Article 22 of the Convention on the Rights of the Child (CRC) albeit still limited to the “fulfilment of other rights in the Convention” instead of an individual independent right.[11] Humanitarian assistance was also referred to as a human right in the African Charter on the Rights and Welfare of the Child[12] and the Kampala Convention.[13]

In terms of customary international law, state practice is not widespread outside the African Union. States have not acknowledged the right to receive humanitarian assistance as such, very visibly through the lack of General Assembly or Security Council resolutions mentioning it as an independent right as well as the absence of states’ interpretative comments on applicable provisions in human rights treaties they are a signatory of.[14]

The silence in human rights law with respect to civilian access to humanitarian assistance was raised as early as 1993 by the Representative of the UN Secretary General, Francis Deng.[15] Separately, the Special Rapporteur on Internally Displaced Persons confirmed that humanitarian aid is “intrinsically linked to human rights” and the Independent Expert on Human Rights and Solidarity asserts that humanitarian assistance is linked to solidarity rights.[16] The Guiding Principles on Internal Displacement speaks of the “right to request and receive” humanitarian assistance.[17]

It is worth noting that Israel has ratified all human rights treaties except the Convention for the Protection of All Persons from Enforced Disappearance (CED) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW).[18]

International Covenant on Economic, Social and Cultural Rights (ICESCR):

In its 2004 advisory opinion, the ICJ (‘the Court’) confirmed that the State’s human rights obligations persist during armed conflict unless a party lawfully derogates from them due to a national emergency.[19] The Court also specifically recognised that the State’s obligations include economic, social and cultural rights per the ICESCR. The ICESCR does not contain a derogation clause, leading to differing views on the possibility of derogation.[20] However, the Office of the United Nations High Commissioner for Human Rights explained that the “obligations considered to be of immediate effect to meet the minimum essential levels of each of the rights” cannot be derogated from.[21]

The ICESCR, of which Israel is a State party, recognises the right to “an adequate standard of living”, “adequate food, clothing and housing and to the continuous improvement of living conditions” and “the right to enjoy the highest attainable standard of physical and mental health”.[22] Further, the Committee on Economic, Social and Cultural Rights (CESCR) highlighted that State parties are obliged to make sure “minimum essential levels” of rights covered in the ICESCR are met and are of immediate effect:

“[…] a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. …[and] must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations’[23].

Referring to subsistence rights, the CESCR confirmed that in order for States to justify their lack of compliance, they must prove that “every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations”.[24] Luopajarvi contends that arbitrary refusal of foreign assistance would not meet this criterion.[25] Arbitrary refusal of assistance would occur when no reason is provided, when it is done based on factual errors or to discriminate against a particular group.[26]

Right to food

Article 11(2) of the ICESCR mentions the right to be free from hunger that is highlighted as a fundamental right. The UN Special Rapporteur on the Right to Food declared that the distribution of food as aid in emergencies is part of State’s obligation to ensure the right to food.[27]

The CESCR has also affirmed that States have a “core obligation to take necessary action to mitigate and alleviate hunger … even in times of natural or other disasters”.[28] To meet this core obligation, States must make sure that people in their jurisdiction have “access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger”.[29] To determine if the State has violated the right to food, the CESCR emphasised the importance of differentiating “the inability from the unwillingness of a State party to comply”.[30]

Further, the previous UN Commission on Human Rights had confirmed the right of every person:

“to have access to safe and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger so as to be able fully to develop and maintain their physical and mental capacities”.[31]

Following that, the Human Rights Council and the General Assembly have adopted the same position[32] while stressing international cooperation.[33] The Special Rapporteur on the Right to Food has mentioned that States might be obligated to provide food aid in certain situations because the positive obligations on States through the ICESCR necessitates international cooperation in making sure the right to food is not violated in a country.[34]

The United Nations Food and Agriculture Organisation (FAO) has outlined that the most basic form of the right of food, which is the freedom from hinger, is part of customary international law.[35]

The Additional Protocol to the American Charter in the Area of Economic, Social and Cultural Rights recognises the right to food in Article 12. Specifically, it contains obligations on States to enhance the distribution of food, encourage better international cooperation for that purpose and eliminate malnutrition.[36] However, only 16 States have ratified it.

Right to water

The right to water does not exist as a specific right in core international human rights conventions but in relation to the right to health or the right to food in the CRC[37], CEDAW[38], CRPD[39], Additional Protocol to the ACHPR on the Rights of Women in Africa[40] and the African Charter on the Rights and Welfare of the Child.[41]

Neither the core international instruments such as the UDHR, ICCPR, ICESCR nor regional treaties recognise the specific right to water. However, the CRC and CEDAW highlights State parties to ensure children and women have adequate supply of drinking water respectively. The CPD also outlines the obligation to ensure equal access to clean water for persons with disabilities.

The CESCR recognises the right to water according to Article 11 (1) of the ICESCR given its links to an “adequate standard of living”.[42] This means that access to water must be “‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses”[43] and that minimum obligations regarding water are “non-derogable”.[44] The CESCR also argued that that adequate water comprises availability, quality and accessibility, with the latter should be provided to particularly “vulnerable sections of the population” such as IDPs.[45]

Moreover, states are obliged to ensure access to adequate sanitation to fulfil the right to water.[46]

Right to health

The CESCR elaborated on the right to health as beyond the right to health care, although it does not confer the right to be healthy, including:

“a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment”.[47]

In the same General Comment and with reference to Article 12(2)(c) on States’ duty to prevent, treat and control epidemic, endemic, occupational and other disasters, the CESCR interprets the right to treatment to include “‘the provision of disaster relief and humanitarian assistance in emergency situations”.[48] It could be argued that ‘other disasters’ could include outbreaks as a result of a humanitarian crisis, such as the polio outbreak in Gaza, in addition to outbreaks that themselves constitute a crisis, such as COVID-19.

The duty to respect the right to health means that states should not deny access to health services and refrain from discrimination while the duty to protect necessitates States to put in place legislation making sure that those services provided by third parties are equally accessible to all.[49]

The UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has explained that this right encompasses safe drinking water, sanitation, adequate food and ‘timely and appropriate health care’.[50] The Special Rapporteur also asserted that State have both a duty to cooperate to fulfil the right to health generally but also specifically in the provision of humanitarian assistance during a humanitarian crisis, like the provision of water and medical assistance[51] and in terms of facilitating access to essential health facilities.[52]

In the Committee for Economic, Social and Cultural Rights’ Concluding Observations, it urged Israel to provide unrestricted access for the provision of urgent humanitarian assistance.[53]

International Covenant on Civil and Political Rights (ICCPR):

The ICCPR protects the “right to life”[54] and mentions in Article 4 (2) more specifically that the right is non-derogable in relation to situations where “public emergency threatens the life of the nation”.[55] Humanitarian assistance can make a difference on whether an individual stays alive in a humanitarian crisis. Therefore, it can be said that when humanitarian assistance is not provided, it can lead to death and presents a violation to the right to life.[56] Since the ICCPR clearly mentions that the right to life is non-derogable, this means that states are bound to protect this right during a humanitarian crisis. The Human Rights Committee, through its General Comment 6, has also reaffirmed the State’s obligation to put in place positive measures to protect the right to life[57] including the reduction or elimination of malnutrition, epidemics and similar situations that could threaten the right to life.[58] Kuijt argues that these positive measures can be understood in relation to the provision of humanitarian assistance since it preserves the survival of people experiencing a humanitarian crisis.[59] Additionally, Luopajarvi asserts that the obligation to accept foreign humanitarian assistance can be inferred from the right to life, especially when affected States are unable to meet international obligations derived from component rights.[60]

Moreover, Article 6 of the ICCPR prohibits the arbitrary deprivation of life in comparison to Article 2 of the ECHR prohibiting the intentional deprivation of life which is seen as having a lower threshold than the former and offering greater protection.[61] Other regional instruments such as the ACHR and the ACHPR also contain provision on the right to life. The former is similar to the ICCPR such that the right to life must be ‘respected’ and ‘protected by law’ and shall not be arbitrarily deprived, obliging the State party to protect this right[62]. The relevant provision in the ACHPR is similarly phrased, with a provision including respect for the personal integrity of all individuals[63].

In its Concluding Observations on the fifth periodic report of Israel, the Human Rights Committee recommended that Israel take necessary measures to provide unrestricted access for urgent humanitarian assistance and make its exist permit system more transparent and effecting, including by prioritising requests for patients in need of medical treatment and those accompanying patients, especially child patients.[64]

Convention on the Rights of the Child (CRC):

The CRC protects “the child’s right to life and provides that states shall ensure to the maximum extent possible the survival and development of the child”[65] although there have not been any interpretative comments in relation to the provision of humanitarian assistance.[66]

The CRC also highlights that, with respect to the right to health, State parties are obligated to provide sufficient and nutritious food to children.[67]

With regards to the right to health, the CRC highlighted State parties’ obligation to ensure “necessary medical assistance and health care to all children” linked to the highest attainable standard of health for children, particularly with respect to the right to access such facilities.[68]

The Committee on the Rights of the Child’s Concluding Observations on the combined fifth and sixth periodic reports of Israel asserted that Israel should allow humanitarian agencies unimpeded access to families and children[69] and highlighted its grave concern of 16,800 denials of humanitarian access[70], denied coordination of humanitarian aid missions, prevention of access to medical care and reports of denied or delayed permit applications of children seeking access to specialised medical treatment.[71] The Committee reiterated its previous recommendations to ensure safe and unrestricted humanitarian access to and within the Gaza Strip and respect the humanitarian notification system to maximise the safety of aid operations and humanitarian workers.[72]

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD):

Kuijt claims that since state obligations on non-discrimination exists separately and independently irrespective of the existence of the right to humanitarian aid, the principle of non-discrimination foregrounds said right.[73] Further, Article 5 of ICERD notes that State parties, like Israel, must “undertake to prohibit and to eliminate racial discrimination” regarding the “right to security of person and protection by the State against violence or bodily harm whether influenced by government officials or by any individual group or institution, the right to freedom of movement, the right to housing, public health, medical care, social security and social services, the right to education”, all relevant to protection and/or provision of humanitarian assistance.[74] Relevant case law with respect to the application of ICERD at the International Court of Justice (ICJ) includes Georgia v Russia. The court affirmed that humanitarian aid fulfils substantive human rights.[75]

ICERD also recognises States’ obligation to protect the “right to public health and medical care” without racial discrimination.[76]

No relevant concluding observations on humanitarian assistance.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):

CEDAW recognises the obligation of States to ensure adequate nutrition for women during pregnancy and lactation.[77]

The Additional Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa mentions the right to food security for women as a unique group, of which 16 out of the 27 States of the African Union have ratified it.

No relevant concluding observations on humanitarian assistance.

Convention on the Rights of Persons with Disabilities (CPD):

The CPD recognises the right to an adequate standard of living including adequate food, clothing and housing.[78]

In its Concluding Observations, the Committee on the Rights of Persons with Disabilities recommended Israel to establish a uniform registration and identification system for all refugee and asylum-seeking adults and children with disabilities to ensure access to adequate humanitarian services and aid and to essential services and disability supports.[79]

Challenges:

Hesselman suggests that the main challenge with International Human Rights Law is “not a lack of duty-bearers, but a lack of rights holders that can claim assistance”.[80] Yet, some consider humanitarian assistance a “group” right when human rights are usually invoked on an individual basis.[81] There are also gaps in defining situations in which States could legally reject humanitarian assistance.[82]

Human Rights Mechanisms

Stoffels asserts that the very nature of the violation of the right to humanitarian assistance reduces the efficacy of International Human Rights Law enforcement mechanisms, in that a) humanitarian assistance as an individual right (the right to life) is abused by a State or non-State actors on a collective scale and the mechanisms in place to guarantee individual protection cannot provide redress against those violations, b) the right to humanitarian assistance is linked to emergencies and measures are effective only it they are implemented immediately, c) measure designed to promote the progressive realisation of the right to humanitarian assistance is ineffective since violations are committed in a specific and abnormal context and d) violations are committed by States but also non-State actors of whose conduct the State bears no responsibility.[83] Many existing mechanisms are either seen as reactive rather than preventive or have no provision for the adoption of interim measures. The utilisation of the individual communications procedure requires the exhaustion of domestic remedies, with no provision for interim measures.[84] The Human Rights Committee refers to individual cases and as such plays a more reactive than preventive role.[85] In contrast, the extra-conventional monitoring mechanisms such as that established by Resolution 1235 (XLII) of the United Nations Economic and Social Council allows applicability to a larger number of States outside the treaty framework. This procedure analyses situations of human rights violations, taking into consideration the recurrence of violations over time instead of the number of individuals affected and therefore allows the analysis of violations of a collective scale.[86] In addition, fact-finding mechanisms can be set up to generate reports which are then used by Human Rights Committee and other international organisations to pressure States to comply with their obligations, although this mechanism depends on the consent of the State for investigation, the political will of member states to deal with violations apart from the fact that the recommendations are not binding.[87]

Nevertheless, human rights treaty bodies have already begun monitoring compliance with component rights obligations in relation to disasters (HRCtee, CESCR, CERD, CEDAW and the Informal Working Group established by the Committee on the Rights of Persons with Disabilities).[88] The Universal Periodic Review and thematic special procedures, either through the establishment of Independent Experts or Special Rapporteurs on specific topics or based on pre-existing mandates can further contribute to the development of monitoring compliance.[89]

*****

[1] United Nations Office for the Coordination of Humanitarian Assistance, Humanitarian Access Snapshot – Gaza Strip – October 2024, https://www.ochaopt.org/content/humanitarian-access-snapshot-gaza-strip-october-2024#:~:text=Some%2043%20per%20cent%20of%20all%20humanitarian%20movements,Thirty-seven%20per%20cent%20were%20facilitated%20without%20major%20issues., Accessed 18 November 2024.

[2] United Nations Office for the Coordination of Humanitarian Assistance, Gaza Humanitarian Response Update – 27 October – 9 November 2024, https://www.unocha.org/publications/report/occupied-palestinian-territory/gaza-humanitarian-response-update-27-october-9-november-2024, Accessed 18 November 2024.

[3] Jacob Høigilt, The futility of rights-based humanitarian aid to the Occupied Palestinian Territories (2019) 43 Disasters 169.

[4] Ibid, 183.

[5] Ibid, 183.

[6] Ibid, 183.

[7] Office of the High Commissioner for Human Rights, 'Universal Periodic Review: Israel' https://www.ohchr.org/en/hr-bodies/upr/il-index accessed 15 December 2024.

[8] Ibid.

[9] Emilie Kuijt, ‘A humanitarian crisis: reframing the legal framework on humanitarian assistance’ in Zwitter, A., Lamont, C. K., Heintze, H.-J., & Herman, J. (eds.) Humanitarian Action Global, Regional and Domestic Legal Responses (Cambridge University Press 2014), 54-80.

[10] Ibid, 59.

[11] Emilie Kuijt, 'Humanitarian assistance and State Sovereignty in International Law: Towards a Comprehensive Framework' (School of Human Rights Research Series Universiteit Leiden 2005) https://hdl.handle.net/1887/36434, Accessed 18 November 2024.

[12] African Charter on the Rights and Welfare of the Child, adopted 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), Article 23.

[13] African Union Convention For The Protection And Assistance Of Internally Displaced Persons In Africa (Kampala Convention), Article 5(9).

[14] Kuijt (n11), 59.

[15] Report of the Representative of the Secretary-General, Mr. Francis Deng, ‘Further promotion and encouragement of human rights and fundamental freedoms, including the question of the programme and methods of work of the commission human rights, mass exoduses and displaced persons Internally displaced persons’ UN Doc E/CN.4/1994/44 (25 January 1994), paras 21-22.

[16] Report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, Addendum Mission to Somalia, UN Doc A/HRC/13/21/Add.2 (21 January 2010) § 34; ‘Report of the independent expert on human rights and international solidarity (Mr. Rudi Muhammad Rizki)’ UN Doc A/HRC/4/8 (7 February 2007) para 13 and para 43.

[17] Addendum ‘Guiding Principles on Internal Displacement’ (Guiding Principles on IDPs) (11 February 1998) UN Doc E/CN.4/1998/53/Add.2 Principle 3.

[18] Office of the High Commissioner for Human Rights (OHCHR), UN Treaty Body Database – Israel, <tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx> accessed 18 November 2024.

[19] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 106.

[20] Emanuele Sommario,'Derogations from Human Rights Treaties in Situations of Natural or Man-Made Disasters' in A. de Guttry, M. Gestri, G. Venturini (eds.) International Disaster Response Law (T.M.C. Asser Press: 2012) 323.

[21] Office of the High Commissioner for Human Rights, Frequently Asked Questions on Economic, Social and Cultural Rights. Fact Sheet No. 33, at 16.

[22] International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, Article 11 (1) and Article 12.

[23] Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 3: The Nature of

States Parties Obligations (Art 2(1) of the Covenant), UN ESCOR, Comm. Economic, Social and Cultural

Rights, 5th sess., Annex 3, UN Doc. E/1991/23 (1990), para. 1.

[24] CESCR, General Comment No 12: The Right to Adequate Food (Art 11), UN Doc E/C.12/1999/5 (1999), para 17.

[25] Katya Luopajarvi, ‘Is There an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?’ (2003) 15 International Journal of Refugee Law 678.

[26] Walter Kalin, 'The Human Rights Dimension of Natural and Human-Made Disasters' (2012) 55 German Yearbook of International Law 119

[27] ‘Report of the Special Rapporteur on the right to food, Addendum Mission to Guatemala’ UN Doc A/HRC/13/33/Add.4 (26 January 2010) para 66.

[28] CESCR (n24), para 6.

[29] Ibid, para 14.

[30] Ibid, para 17.

[31] UNCHR Res 10 (2000) UN Doc E/CN.4/2000/10 ‘The right to food’ (17 April 2000) para 1.

[32] UNCHR Res 19 (16 April 2004) UN Doc E/CN.4/2004/19 § 2; UNHRC Res 7/14 (27 March 2008 ) ‘The right to food’ para 2; UNHRC Res 10/12 (26 March 2009) ‘The right to food’ § 2; UNHRC Res 13/4 (24 March 2010) ‘The right to food’ para 2; UNHRC Res 16/27 (25 March 2011) ‘The right to food’ § 2; UNGA Res 59/202 (31 March 2005) UN Doc A/RES/59/202 para 2; UNGA Res 60/165 (2 March 2006) UN Doc A/RES/60/165 para 2; UNGA Res 61/163 (19 December 2006) UN Doc A/RES/61/163 para 2; UNGA Res 62/164 (18 December 2007) UN Doc A/RES/62/164 para 2; UNGA Res 63/187 (18 December 2008) UN Doc A/RES/63/187 para 2; UNGA Res 64/159 (10 March 2010) UN Doc A/RES/64/159 para 2.

[33] UNGA Res 60/165 (2 March 2006) UN Doc A/RES/60/165 para 14; UNGA Res 61/163 (19 December 2006) UN Doc A/RES/61/163 para 18; UNGA Res 62/164 (18 December 2007) UN Doc A/RES/62/164 para 14 and 22; UNGA Res 64/159 (10 March 2010) UN Doc A/RES/64/159 para 17.

[34] Report of the Special Rapporteur ‘The right to food’ (21 October 2008) UN Doc A/63/278 para 12; Report of the Special Rapporteur on the right to food ‘Promotion and Protection of all Human Rights, Civil, political, economic, social and cultural rights, including the right to development’ (11 February 2009) UN Doc A/HRC/10/5 para 5.

[35] FAO Legislative Study ‘Right to Adequate Food in Emergencies’ (2002).

[36] Additional Protocol to the American Convention on Human Rights, On Economic, Social and Cultural Rights, 17 November 1988, OAS Treaty Series No 69, art 12

[37] Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UNTS 3, Article 24(1)(c).

[38] Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, 1249 UNTS 13, Article 14(2)(h).

[39] Convention on the Rights of Persons with Disabilities (CRPD), 13 December 2006, 2515 UNTS 3, Article 28.

[40] Additional Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 11 July 2003, OAU Doc. CAB/LEG/66.6, Article 15(a).

[41] African Charter on the Rights and Welfare of the Child, adopted 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), Article 14(2)(c).

[42] CESCR, General Comment No. 15: The Right to Water (Arts 11 and 12 of the Covenant), UN ESCOR,

CESCR, 29th sess., Agenda Item 3, UN Doc. E/C.12/2002/1 (2002), para. 3.

[43] Ibid, para 2.

[44] Ibid, paras 37, 40.

[45] CESCR General Comment 15 (20 January 2003) UN Doc E/C.12/2002/11 ‘The Right to water (Arts. 11 and 12 of the International Covenant on Economic Social and Cultural Rights’ paras 12, 16.

[46] Ibid, para 29; CESCR Statement on the Right to Sanitation (19 November 2010) UN Doc E/C.12/2010/1.

[47] CESCR General Comment 14 (11 August 2000) UN Doc E/C.12/2000/4 ‘The right to the highest attainable standard of health’, paras 3, 4, 8.

[48] Ibid, para 16.

[49] Ibid, para 34-35.

[50] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (31 January 2008) A/HRC/7/11 para 45.

[51] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (13 February 2003) UN Doc E/CN.4/2003/58 para 29; Report of the Special Rapporteur (11 February 2005) UN Doc E/CN.4/2005/51 para 62; and Report of the Special Rapporteur (31 January 2008) UN Doc A/HRC/7/11 para 60.

[52] Report of the Special Rapporteur ‘The right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (12 September 2005) UN Doc A/60/348 paras 60, 64.

[53] UN Committee on the Economic, Social and Cultural Rights (CESCR), Concluding Observations on the Fourth Periodic Reports of Israel, E/C.12/ISR/CO/4, 12 November 2019, para 11a.

[54] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, Article 6.

[55] CCPR General Comment 5: ‘Derogation of rights (Art. 4)’ (31 July 1981) and General Comment 29 pursuant to Article 4 ‘States of Emergency’ UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001), as well as the General Comments on Article 4: CCPR General Comment 6: ‘The right to life (art. 6)’ (30 April 1982)

[56] Kuijt (n11), 187

[57] CCPR General Comment 6: 'The right to life (art. 6)' (30 April 1982) UN Doc CCPR/C/21/Rev.1/Add.3, para 2.

[58] Ibid, para 5.

[59] Kuijt (n11), 188.

[60] Luopajarvi (n25), 271.

[61] LA Rehof (1999) ‘Article 3’, in G Alfredsson & A Eide (eds.) The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers 1999) 91-94.

[62] American Convention on Human Rights, 22 November 1969, OAS Treaty Series No 36, Article 4.

[63] African Charter on Human and Peoples' Rights, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev 5, Article 4.

[64] UN Human Rights Committee, Concluding Observations on the Combined Fifth Periodic Reports of Israel, CCPR/C/ISR/CO/5, 5 May 2022, para 39.

[65] CRC (n37), Article 6.

[66] Kuijt (n11), 189.

[67] CRC (n37), Article 24(2)(c).

[68] CEDAW (n38), Article 24.

[69] UN Committee on the Rights of the Child (CRC), Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Israel, CRC/C/ISR/CO/5-6, 13 September 2024, https://www.refworld.org/polic... [accessed 15 December 2024], para 39(b)

[70] Ibid, para 50(a).

[71] Ibid, para 50(c).

[72] Ibid, 53(a) and (f)

[73] Kuijt (n11), 173.

[74] International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195, Article 5.

[75] Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, p. 353 para 80.

[76] ICERD (n74), Article 5(e)(iv).

[77] CEDAW (n38), Article 12(2).

[78] CRPD (n39), Article 28.

[79] UN Committee on the Rights of Persons with Disabilities (CRPD), Concluding Observations on the Initial Report of Israel, CRPD/C/ISR/CO/1, 9 October 2023, para 42(b).

[80] Marlies Hesselman, ‘A Right to International (Humanitarian) Assistance in Times of Disaster’ in Flavia Zorzi Giustiniani and others (eds), Routledge Handbook of Human Rights and Disasters (1st edn, Routledge 2018) accessed 18 November 2024.

[81] Kuijt (n11), 172.

[82] Hesselman (n80), 77.

[83] Ruth Abril Stoffels, ‘Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps’ (2004) 86 Revue Internationale de la Croix-Rouge/International Review of the Red Cross 515.

[84] Ibid, 526.

[85] Ibid.

[86] Ibid.

[87] Ibid, 527.

[88] D. Cubie and M. Hesselman, 'Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systemic International Oversight (2015) 33 Netherlands Quarterly of Human Rights 9.

[89] Ibid, 34-38.

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5. Legal Discourse on Humanitarian Assistance in Gaza:

The United Nations General Assembly asserted in 1970, that “The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights”. In the ICJ’s Nicaragua v USA (1986) judgement, the court found: “[t]here can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.”

International law has been an important component of the discourse surrounding humanitarian assistance to Gaza over the past year. Various actors – including states, international organisations, and non-governmental organisations – have invoked the legal frameworks set out above to address the obligations of all parties involved. The discourse, examples of which are given below, seems mostly to have sought to frame the provision of humanitarian assistance as a legal obligation under international humanitarian law, rather than (only) a humanitarian or operational issue. Such a framing can be seen to demonstrate the responsibilities of parties to the conflict to adhere to legal standards designed to protect civilians and ensure the delivery of essential aid. However, this legal discourse has evidently not led to the necessary scale of response. Therefore, while international law can be seen to have served as a foundation for calls to action and accountability regarding humanitarian assistance, it has as yet failed to deliver.

Focus Areas:

- Examination of international law invoked by parties and international responses in Gaza and Sudan.

- Analysis of the legal vs. humanitarian framing of humanitarian assistance by states, the UN, and other actors.

- Considerations of obligations among various actors regarding humanitarian aid.

The invocation of international law in addressing humanitarian crises in Gaza and Sudan shows the dynamic between legal obligations and operational realities. In Gaza, United Nations experts have consistently emphasised the primacy of international humanitarian law (IHL), underscoring obligations under the Geneva Conventions to ensure the unimpeded delivery of humanitarian aid (OHCHR, 2024). Reports from the Office of the High Commissioner for Human Rights (OHCHR) have condemned the escalation of violence and its catastrophic impact on civilians, highlighting the violation of fundamental human rights, including the right to life under the International Covenant on Civil and Political Rights (ICCPR) (OHCHR, 2023). Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the occupied Palestinian territories, has detailed in her report ‘Anatomy of a Genocide’ the extent to which Israel’s blockade and military operations have endangered the survival of the Palestinian population in Gaza (Albanese, 2024). Albanese asserts that the deliberate obstruction of humanitarian aid breaches international law and creates conditions that may amount to genocidal acts. Such assessments have reinforced calls for immediate international intervention to ensure the unhindered flow of essential aid, reflecting a broader understanding of the intersection between humanitarian imperatives and legal accountability.

The UN General Assembly has further condemned the intensification of the blockade in Gaza, framing it as a violation of Article 70 of Additional Protocol I to the Geneva Conventions, which mandates the facilitation of humanitarian relief in international conflicts (ReliefWeb, 2024). This framing aligns with the International Committee of the Red Cross (ICRC), which has repeatedly stressed that restricting aid constitutes a breach of IHL principles that protect civilians and humanitarian workers during conflict (ICRC, 2024). Similarly, Legal Action Worldwide has described the blockade as "persecution," and a crime against humanity under the Rome Statute, while also invoking the Responsibility to Protect (R2P) doctrine to urge states to prevent further atrocities and ensure humanitarian access (Legal Action Worldwide, 2023).

Responses from the international community reflect a mix of legal and operational framings. The United States has linked the provision of humanitarian aid in Gaza to its continued military support for Israel, emphasising logistical challenges while refraining from explicit accusations of legal breaches (New York Post, 2024). In contrast, Norway has advocated for an advisory opinion from the International Court of Justice (ICJ) on Israel’s obligations as an occupying power, framing the crisis as a legal issue under customary international law (The Guardian, 2024). Egypt, France, and Jordan have characterised Israel’s actions as collective punishment prohibited under IHL, with Egypt’s foreign ministry highlighting the blockade’s humanitarian impact (Joint Press Statement, 2024).

In Sudan, the obstruction of humanitarian operations has similarly raised profound legal and moral concerns. The targeting of aid workers and the deliberate restriction of essential supplies violate not only IHL but also the principles of humanity and neutrality that underpin global humanitarian efforts. These challenges have been compounded by political instability and the inadequacy of international responses, and the urgent need for a more robust enforcement of legal norms to protect civilians and aid providers alike.

The obligations of various actors in these contexts are clear. Under Article 23 of the Fourth Geneva Convention, Israel, as an occupying power, is required to ensure the delivery of humanitarian aid and meet the basic needs of the civilian population (Lieber Institute, 2023). The broader international community, under Article 1 of the Geneva Conventions, has a collective duty to ensure compliance with IHL, as reflected in Norway’s call for ICJ involvement (Norwegian Government, 2024). Meanwhile, humanitarian organisations, bound by principles of neutrality and impartiality, are increasingly invoking legal frameworks to advocate for access and protection.

Despite these obligations, the denial of aid continues to be framed by some actors, particularly Israel, as a security measure justified under Article 23. Israeli officials argue that restrictions are necessary to prevent the diversion of resources to Hamas, citing proportionality and necessity (Human Rights Watch, 2023). However, international observers, including the ICRC and Human Rights Watch, have challenged this rationale, pointing to the disproportionate harm inflicted on civilians and the insufficient volume of aid permitted into Gaza. These dynamics reveal a tension between operational pragmatism and the legal imperative to prioritise civilian welfare, a challenge mirrored in other conflict zones such as Sudan.

Ultimately, the denial of humanitarian assistance constitutes not merely a failure of logistics but a profound breach of international law with devastating consequences for civilian populations. The emerging consensus among UN bodies, NGOs, legal scholars, recent ICC arrest warrants and ICJ interventions signal a growing recognition of the importance of integrating legal accountability with humanitarian action, perhaps offering a future path towards more effective and principled responses to crises in Gaza, Sudan, and beyond (ICC, 2024).

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Examination of international law invoked by parties and international responses (Gaza):

United Nations -

1. UN Office of the High Commissioner for Human Rights (OHCHR) / Experts

o On October 7, 2024, UN experts called for an end to violence and emphasised the need for accountability and compliance with international humanitarian law, condemning actions that have led to massive civilian suffering. They reiterated the necessity of adhering to the Geneva Conventions and customary international law, highlighting the human cost of the escalation and the blatant disregard for international law: https://www.ohchr.org/en/press-releases/2024/10/7-october-un-experts-call-end-violence-and-accountability-after-year-human

o UN experts and officials have also framed the denial of aid as a potential violation of the right to life under the 1966 ICCPR:

In November 2023, a group of UN experts highlighted the severe impact of restricted aid access on Gaza's civilian population, emphasising that such actions could lead to violations of fundamental human rights, including the right to life: "The reality in Gaza, with its unbearable pain and trauma on the survivors, is a catastrophe of enormous proportions." They further noted that "intentional starvation amounts to a war crime," underscoring the gravity of obstructing essential supplies to civilians. https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-prevent-genocide-against

Additionally, in October 2024, UN experts marked one year since the onset of intensified hostilities in Gaza by issuing a statement that condemned the ongoing violence and its catastrophic effects on civilians. They asserted that the international legal order was breaking down in Gaza, with genocidal attacks, ethnic cleansing, and collective punishment of Palestinians, all of which pose severe threats to the right to life. https://www.ohchr.org/en/statements/2024/10/international-order-breaking-down-gaza-un-experts-mark-one-year-genocidal

o UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, has extensively addressed the right to humanitarian aid in Gaza: consistently emphasising that Israel's blockade and military actions in Gaza severely impede the delivery of essential humanitarian assistance, thereby violating international law. https://www.soas.ac.uk/about/news/litmus-test-palestine-un-special-rapporteur-francesca-albanese-speaks-soas

In her March 2024 report titled "Anatomy of a Genocide," Albanese detailed how Israel's actions, including the blockade, have created conditions that threaten the survival of the Palestinian population in Gaza. She highlighted that the deliberate obstruction of humanitarian aid constitutes a breach of international humanitarian law and may amount to genocidal acts. https://www.ohchr.org/en/documents/country-reports/a79384-report-special-rapporteur-situation-human-rights-palestinian

Albanese has also called for immediate international intervention to ensure the unimpeded flow of humanitarian aid into Gaza. She has urged the international community to take decisive action to end the blockade and facilitate the delivery of essential supplies to the civilian population, warning that the failure to address the obstruction of humanitarian aid not only exacerbates the suffering of the Palestinian people but also undermines the integrity of international law. https://www.ohchr.org/en/special-procedures/sr-palestine

2. UN General Assembly (UNGA)

o A resolution passed in mid-October 2024 condemned the intensification of the blockade in Gaza, emphasising Israel’s obligations under Article 70 of Additional Protocol I to the Geneva Conventions (1977), which requires facilitating humanitarian relief in international conflicts: https://reliefweb.int/report/occupied-palestinian-territory/israelpalestine-statement-high-representative-urgent-need-respect-international-humanitarian-law-gaza

3. UN Relief and Works Agency for Palestine Refugees (UNRWA)

o UNRWA highlighted the near collapse of humanitarian operations due to restricted aid access, asserting that Israel's actions violated obligations under the Fourth Geneva Convention concerning the welfare of civilians under occupation (Oct 2024): https://www.reuters.com/world/what-are-legal-questions-raised-by-israels-ban-un-palestinian-aid-agency-unrwa-2024-10-29/

Analysis of the legal vs. humanitarian framing of humanitarian assistance by states, the UN, and other actors:

1. United States

o The US has increasingly called on Israel to increase humanitarian aid to Gaza, linking the provision of aid to continued American military support. https://nypost.com/2024/11/20/us-news/us-didnt-withhold-weapons-to-israel-after-letter-promised-more-aid-in-gaza-report Aid deliveries severely decreased in October (2024), leading to dire humanitarian conditions. https://www.wsj.com/world/middle-east/the-u-s-warned-israel-to-increase-gaza-aid-the-results-are-in-dispute-3c65e4e3

o US officials have warned Israel that restricting humanitarian aid access would be inconsistent with international law and could affect ongoing military support. This operational perspective is tied to legal obligations under IHL. However, unsurprisingly, the US has not publicly referenced a breach of the Rome Statute or other criminal provisions. https://apnews.com/article/israel-hamas-hezbollah-latest-18-november-2024-f8b998f646051a1ef19303b51225a7ee

2. Norway

o Norway has proposed seeking an International Court of Justice advisory opinion on Israel's legal obligations as an occupying power, particularly concerning the facilitation of humanitarian aid under IHL and customary international law. This request and focus frames humanitarian assistance as a legal rather than purely operational issue. https://www.theguardian.com/world/2024/nov/19/norway-to-ask-icj-for-advisory-opinion-condemning-israels-stance-on-unrwa

3. Egypt, France, and Jordan

o These states, for example, have criticised Israel’s actions in Gaza as a violation of international humanitarian law. Egypt’s foreign ministry has framed the blockade as "collective punishment" prohibited under IHL. https://www.diplomatie.gouv.fr/en/country-files/egypt/news/article/joint-press-statement-egypt-france-jordany-cairo-30-03-24

4. Iraq

o Official statement following the ICC arrest warrant decision (21st November) on behalf of GoI - if of interest:

The Government of Iraq (GoI) highly appreciates the brave and just stance taken by the International Criminal Court (ICC) in issuing arrest warrants for the Zionist Prime Minister and his former Defense Minister. These warrants are based on indictments accusing them of committing war crimes and crimes against humanity against the Palestinian and Lebanese peoples.

This historic decision reaffirms that, no matter how long injustice prevails or attempts are made to sustain it, justice and truth will ultimately prevail and stand against oppression. The decision also serves as a form of justice for the innocent lives and martyrs lost during the criminal war waged by the Zionist entity against Gaza and Lebanon for over a year.

While we commend this significant step towards achieving justice on a global scale, we reiterate our call to end the war. We urge all free nations to act on this decision and hand over the accused to the competent courts so they may face justice for the flagrant violations they have committed against humanity.

-- Basim Alawadi, Iraqi Government Spokesperson, November 21, 2024.

5. China

o China has also expressed its concern over the humanitarian situation in Gaza, urging Israel to cease using humanitarian assistance as a bargaining tool. https://www.chinadaily.com.cn/a/202411/13/WS673466a7a310f1265a1cd270.html

o Chinese envoy Fu Cong has said that humanitarian issues should not be politicised or weaponised, calling on Israel to immediately open all crossings and remove obstacles to humanitarian access and that Israel, as the occupying power, must fulfil its obligations under international law. https://un.china-mission.gov.cn/eng/hyyfy/202411/t20241113_11525368.htm

Israel’s framing:

Under IHL, parties to a conflict are obligated to allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need. Israel contends that its policies are compliant with these obligations, balancing humanitarian considerations with legitimate security concerns. https://www.justsecurity.org/90789/israels-rewriting-of-the-law-of-war/

In this sense, the Israeli government is seen to articulate its commitment to IHL as a compromise. Israel asserts that it facilitates humanitarian aid to Gaza, balancing the need to provide relief to civilians with measures to prevent aid from being diverted to Hamas. While facilitating aid, Israel imposes certain restrictions aimed at preventing the diversion of resources to Hamas and other militant groups. These measures include inspections and limitations on specific goods that could be used for military purposes. Israel argues that such precautions are necessary to safeguard its national security and to comply with IHL provisions that prohibit the provision of support to parties engaged in hostilities. https://www.bbc.com/news/articles/cvgej83z93qo

Despite these assertions, international organisations and human rights groups are highly critical of Israel's approach, alleging that the restrictions imposed hinder the effective delivery of humanitarian assistance and may constitute violations of IHL. The volume of aid allowed into Gaza has been insufficient to meet the needs of the civilian population, leading to a humanitarian crisis. The United Nations and other entities have called on Israel to lift or ease these restrictions to facilitate unimpeded humanitarian access. https://press.un.org/en/2024/sc15821.doc.htm

a) Israeli Defense Forces (IDF)

o The IDF has justified its blockade on security grounds, citing Article 23 of the Fourth Geneva Convention, which allows restrictions on aid if there is a "serious reason" to believe it would benefit enemy forces. Israeli officials argue that Hamas’s control of Gaza complicates compliance with IHL. https://lieber.westpoint.edu/applicability-article-23-fourth-geneva-convention-gaza/

o However, international observers such as Human Rights Watch challenge this interpretation, arguing that proportionality and necessity are not satisfied. https://www.hrw.org/news/2023/10/27/how-does-international-humanitarian-law-apply-israel-and-gaza

o N.B. Israel continues to deny the ruling(s) of the ICJ, which determined that it is an occupying power in the Gaza Strip. https://gisha.org/en/in-its-response-to-the-high-court-israel-denies-the-ruling-of-the-international-court-of-justice-which-determined-that-it-is-an-occupying-power-in-the-gaza-strip/

b) Israeli Supreme Court

o Another recent ruling reaffirmed the state's right to limit aid during ongoing hostilities but emphasised that basic needs of civilians must be met in accordance with the principles of distinction and necessity under IHL. https://www.timesofisrael.com/high-court-gives-government-six-days-to-submit-answers-on-gaza-humanitarian-crisis/

In April 2024, Israel's High Court of Justice addressed a petition from the Gisha human rights organisation and other NGOs, which urged the Israeli government to enhance the delivery of humanitarian aid to the Gaza Strip amid ongoing conflict. The petitioners raised concerns about the limited number of operational border crossings, the exclusion of Ashdod Port for aid shipments, and the underutilisation of supplies from Israel and the West Bank. They also highlighted reports from the United Nations indicating that over half of the planned humanitarian missions to northern Gaza were denied by Israeli authorities, exacerbating the humanitarian crisis.

In response, the government reported that it had taken measures to increase the supply of humanitarian aid to Gaza. These measures included opening a new crossing into northern Gaza, extending operational hours for goods crossings, adding aid coordinators within Gaza, and facilitating the entry of over 100 trucks for internal distribution of aid. The government maintained that there were no limitations on the amount of aid entering Gaza.

Despite these assertions, humanitarian organisations contended that the situation on the ground had not shown meaningful improvement. They highlighted ongoing challenges such as reduced aid deliveries, looting of aid supplies, and a deteriorating humanitarian situation, with reports indicating that Gaza had become uninhabitable and that famine was imminent.

The High Court's interim order and the government's subsequent response underscores the complexities and challenges in addressing the humanitarian crisis in Gaza, balancing security concerns with the urgent need to meet the basic needs of civilians in accordance with international humanitarian law.

NGOs and legal experts:

1. Legal Action Worldwide

o A legal analysis by eminent professors also concluded that the conduct of both IDF forces and members of Hamas may amount to crimes against humanity under the Rome Statute, including persecution. “Under the Responsibility to Protect (R2P), all States, including those in the region and Israel, have a responsibility to prevent the commission of the listed international crimes and protect the civilian population. This includes ensuring humanitarian corridors are established” - https://legalactionworldwide.org/accountability-rule-of-law/the-situation-in-israel-and-gaza-legal-analysis/

o Legal Action’s analysis described the intensified blockade as "persecution," a crime against humanity under the Rome Statute and a framing which brought international criminal law into the discourse.

2. International Committee of the Red Cross (ICRC)

o The ICRC has repeatedly stated that the restriction of humanitarian aid in Gaza breaches the fundamental principles of IHL, particularly the obligation to ensure the safety of civilians and medical personnel: https://www.icrc.org/en/article/gaza-humanitarian-crisis-icrc-efforts-provide-lifesaving-support

ohttps://www.icrc.org/en/document/Frequently-asked-questions-icrcs-work-Israel-and-occupied-territories

o https://www.icrc.org/en/document/statement-gaza-and-israel-president-icrc

3. Human Rights Watch

o HRW has set out how international humanitarian law applies in Israel and Gaza, and the obligations of parties to allow and facilitate humanitarian relief. HRW says that Israel’s actions could amount to collective punishment under Article 33 of the Fourth Geneva Convention, and details its likely breaches of Article 49 of the Fourth Geneva Convention here: https://www.hrw.org/report/2024/11/14/hopeless-starving-and-besieged/israels-forced-displacement-palestinians-gaza

The UN and international NGOs, as above, have framed the denial of humanitarian aid as a breach of international law, invoking IHL and human rights treaties. This perspective focuses on accountability and compliance with legal obligations. Obviously, the ICC’s issuance of arrest warrants against Israeli officials for alleged war crimes reflects the prioritisation of a legal framework. The US has described the crisis in operational terms, focusing on the logistics of aid delivery, with less emphasis on explicit legal breaches. UNRWA’s discourse has combined both operational and legal framings, and the practical challenges as well as legal violations.

Considerations of obligations!

· Israel (occupying powers):

o Obliged under Article 23 of the Fourth Geneva Convention to ensure adequate humanitarian access and basic needs of the civilian population.

· Wider international community:

o Under Article 1 of the Geneva Conventions, all states must ensure respect for IHL. Calls for ICJ advisory opinions (e.g. by Norway) reflect this duty: https://www.regjeringen.no/en/aktuelt/norway-asks-the-un-to-clarify-israels-obligations-under-international-law/id3066928/

· Humanitarian organisations:

o Bound by principles of neutrality and impartiality but increasingly invoking legal arguments to demand access and protection.

The New Humanitarian's most recent investigation (3 December 2024), Targeted Aid Killings: How Israel Starved a Population and Sowed Chaos in Northern Gaza, examines the severe humanitarian crisis in northern Gaza amid Israeli military operations. The report highlights the deliberate targeting of aid efforts, leading to widespread starvation and chaos among the civilian population. It details how Israeli forces allegedly bombed aid convoys and distribution points, exacerbating food shortages and undermining humanitarian assistance. The article shows the dire consequences of these actions for Gaza's civilian residents, emphasising the need for unimpeded humanitarian access and adherence to international humanitarian law. https://www.thenewhumanitarian.org/investigations/2024/12/03/targeted-aid-killings-how-israel-starved-population-and-sowed-chaos-northern-gaza-palestine

In light of the escalating humanitarian crisis in Gaza following October 7, the denial of humanitarian aid has emerged as a significant breach of international law. The combined analyses of UN experts, states, NGOs, and legal institutions underlines the gravity of this situation. While Israel points to security concerns and operational challenges as justification for withholding aid deliveries, the prevailing legal consensus asserts that the blockade and restrictions on aid delivery constitute violations of international humanitarian and human rights law, including the Geneva Conventions and the ICCPR. These actions not only hinder the fulfilment of basic civilian needs but also challenge the integrity of international legal frameworks designed to protect civilian populations during conflict. The recent ICC arrest warrants and calls for advisory opinions from the ICJ signal a move towards prioritising accountability and legal action, rather than words. Moving forwards, the international community must better balance operational considerations with commitment to upholding legal norms, ensuring the unimpeded flow of humanitarian assistance and safeguarding civilian life in accordance with established international obligations (and looking to create new ones…). https://www.ox.ac.uk/news/2024-10-22-new-legal-research-gaza-war-urges-immediate-action

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6. Country Study: Sudan

- Focus Areas:

- Overview of the humanitarian situation across Sudan (who is affected, how, and where).

- Identification of humanitarian aid providers (INGOs, national actors, emergency response rooms).

- Examination of challenges faced by providers (access, protection, funding).

- Analysis of the political discourse on humanitarian assistance, including security and access issues.

Humanitarian Study on the Current Conflict in Sudan:

The ongoing conflict in Sudan, which erupted/worsened in April 2023, has escalated into one of the most severe humanitarian crises in history. The fighting between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) has devastated the country, leading to widespread displacement and dire humanitarian conditions. As of November 2024, more than 25 million people in Sudan are in urgent need of humanitarian assistance, with 5.6 million people displaced internally and 1.2 million seeking refuge in neighboring countries such as Chad, Egypt, and South Sudan. The conflict has particularly affected vulnerable groups, including children, women, and displaced communities, who face heightened risks of malnutrition, gender-based violence, and lack of access to basic services.

Nearly 13.6 million children are among those in dire need of assistance, with 1.5 million suffering from acute malnutrition. In regions hit hardest by famine, such as Darfur, children under five are at particular risk, with over 500,000 facing the threat of death without urgent intervention (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2024). Women, especially in conflict zones like Darfur and Khartoum, have seen a sharp rise in gender-based violence (GBV), including sexual violence, with reports indicating that women and girls are being abducted and subjected to rape at checkpoints controlled by the RSF (Médecins Sans Frontières [MSF], 2024). These assaults have occurred with little access to support services for survivors, exacerbating the trauma and suffering of these vulnerable populations (OCHA, 2024).

The displacement caused by the conflict has severely strained local resources, especially in states like Gedaref and Gazira. In Gedaref, displaced populations have relied on community-driven initiatives, such as emergency kitchens run by local Emergency Response Rooms (ERRs), while markets in Gazira struggle to meet the increased demand from displaced families (Sudanese Red Crescent Society, 2024). Despite these efforts, the overwhelming scale of displacement has made it increasingly difficult to provide sufficient food, water, and medical care.

The Darfur region remains the most heavily affected by the conflict. The RSF has established near-total control over the five states of Darfur, intensifying the violence and hardship for civilians. Over 3 million people have been displaced within Darfur, with many seeking refuge in neighboring Chad. Al-Fashir, a key urban center in North Darfur, has seen a massive influx of displaced families, overwhelming the already limited facilities. Recent reports of violence include entire villages being burned to the ground, particularly in West and North Darfur, where targeted killings, sexual violence, and looting of civilian properties have been rampant (Democracy Now, 2024). The health crisis in the region is dire, with malnutrition rates among children under five skyrocketing, and many camps reporting over 50% of children malnourished (World Food Programme [WFP], 2024). Cholera outbreaks continue to spread, exacerbated by inadequate sanitation and the lack of clean water (MSF, 2024). Humanitarian organizations face significant challenges accessing the region, with armed groups frequently looting convoys, and more than 70% of health facilities in Darfur being non-functional (OCHA, 2024). Local groups and NGOs, including MSF, are attempting to provide basic services, but their efforts remain limited by resource constraints and security risks (OCHA, 2024).

In Khartoum, the capital, urban warfare between the SAF and RSF has rendered much of the city uninhabitable. Over 2 million people have fled Khartoum, with many seeking refuge in nearby states such as Gazira. The ongoing fighting has left neighborhoods in ruins, with aerial bombardments by the SAF contributing to the destruction. Sexual violence in Khartoum is rampant, particularly at RSF-controlled checkpoints, where women and girls face constant threats of abduction and assault (ReliefWeb, 2024). The city’s infrastructure has collapsed, with only 30% of healthcare facilities operational and overwhelmed by trauma injuries and infectious diseases (Democracy Now, 2024). Food insecurity is a growing issue in the capital, with over 80% of families still in the city relying on minimal aid distributions, which are frequently interrupted by fighting (ReliefWeb, 2024).

Gazira State, traditionally Sudan’s agricultural hub, has seen its role severely undermined by the conflict. Over 119,000 people have fled to eastern Gazira following intensified clashes and attacks, particularly around villages near Aj Jazirah. The violence, perpetrated by the RSF, has led to mass killings, looting, and sexual violence (Radio Tamazuj, 2024). The destruction of crops and farmlands due to flooding and ongoing violence has contributed to widespread food insecurity in the region, further exacerbating the already dire situation (UN-OCHA, 2024). Emergency Response Rooms (ERRs) have attempted to address the immediate needs of displaced populations, but food shortages and limited access to medical care remain critical concerns (Al Jazeera, 2024). Additionally, health facilities are overwhelmed, with many unable to operate due to staff shortages and infrastructure damage (OCHA, 2024).

The humanitarian situation in Gedaref State remains similarly dire, with thousands of internally displaced persons (IDPs) seeking refuge. Overcrowding in camps and inadequate sanitation have increased the risk of disease outbreaks such as cholera and malaria. Emergency response efforts by local organizations and ERRs have been essential, but food and medical supplies are still insufficient to meet the needs of the displaced (MSF, 2024).

In the Kordofan region, North and South Kordofan face a combination of famine conditions and displacement due to ongoing conflict. In North Kordofan, reports indicate that communities are on the brink of famine, relying on locusts and foraged food to survive (Democracy Now, 2024). In South Kordofan, towns like Kadugli remain under siege, with minimal aid delivery as armed groups block or loot humanitarian convoys (ReliefWeb, 2024). Despite these challenges, ERRs continue to provide limited assistance to isolated areas, although the scale of the need far exceeds available resources (ReliefWeb, 2024).

Eastern Sudan, including Kassala, serves as a key transit point for refugees fleeing violence in Khartoum and Darfur. The influx of displaced populations has overwhelmed the region’s infrastructure, with water shortages and a lack of medical facilities becoming critical issues (MSF, 2024). As displaced families move through Kassala on their way to neighboring countries like Ethiopia and Eritrea, border areas have become increasingly insecure, with smuggling networks exploiting the situation (OCHA, 2024).

Despite these dire circumstances, international and local humanitarian organizations are striving to provide aid, though logistical challenges, safety concerns, and funding shortfalls have hindered their ability to fully meet the needs of those affected. The humanitarian response, while commendable, remains insufficient given the scale of the crisis, and more significant international support is necessary to mitigate the ongoing suffering of millions in Sudan.

Humanitarian Assistance Providers in Sudan:

The ongoing conflict in Sudan has exacerbated an already dire humanitarian crisis, leaving millions in need of critical support. Humanitarian assistance providers, including international NGOs (INGOs), United Nations agencies, and grassroots-led Emergency Response Rooms (ERRs), have stepped in to address these urgent needs. However, these efforts are constrained by severe challenges, including violence against aid workers, restricted access, and chronic funding gaps (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2024). This section provides an in-depth examination of key humanitarian actors, their interventions, and the hurdles they face in delivering aid to Sudan’s most vulnerable populations.

International Non-Governmental Organisations (INGOs)

NGOs have been at the forefront of providing aid to Sudan, with organizations such as the Norwegian Refugee Council (NRC), Médecins Sans Frontières (MSF), and the International Committee of the Red Cross (ICRC) leading significant efforts. The NRC has been instrumental in delivering shelter, water, food assistance, and legal protection services to vulnerable populations (Norwegian Refugee Council [NRC], 2024). In Darfur alone, the NRC has supported approximately 500,000 displaced individuals, focusing on heavily affected areas such as Al-Fashir and Geneina, where large-scale violence and displacement continue (NRC, 2024). To expand its operations, the NRC has partnered with local Emergency Response Rooms (ERRs), enabling it to reach previously inaccessible areas, including South Kordofan and Gedaref. These partnerships have proven effective, with ERR collaborations accounting for 30% of the NRC’s total reach in 2024, facilitating the delivery of over 50,000 food packages monthly in conflict zones (NRC, 2024).

MSF has also played a critical role in the Sudan crisis, focusing on providing mobile clinics, emergency surgeries, and maternal healthcare in regions like West Darfur and Khartoum (Médecins Sans Frontières [MSF], 2024). In October 2024, MSF treated 25,000 malnourished children in camps across Darfur and conducted more than 2,000 emergency surgeries in Gedaref (MSF, 2024). However, in January 2025, MSF was forced to suspend operations at Bashair Hospital in Khartoum due to repeated attacks on its facilities and staff. Despite this setback, MSF continues to operate mobile field clinics in displacement camps near Nyala and Kassala, delivering life-saving medical care (MSF, 2025).

The ICRC has concentrated its efforts on medical evacuations, rebuilding water infrastructure, and providing essential supplies in remote conflict zones. In South Kordofan, the ICRC restored three water facilities in Kadugli, ensuring clean water access for 50,000 residents (International Committee of the Red Cross [ICRC], 2024). Additionally, the organization distributed hygiene kits to 10,000 families in the region to combat a cholera outbreak that emerged in late 2024 (ICRC, 2024).

United Nations Agencies

United Nations agencies, particularly the World Food Programme (WFP) and UNICEF, have played crucial roles in addressing food insecurity, health services, and child protection needs. The WFP has delivered over 130,000 metric tons of food assistance since April 2023, with a particular focus on famine-stricken areas like North Darfur and Kordofan (World Food Programme [WFP], 2024). In December 2024 alone, the WFP provided aid to 4 million people, including 2 million children suffering from severe acute malnutrition (WFP, 2024). However, the WFP’s operations have been hindered by bureaucratic delays, resulting in 40% of planned food distributions being postponed in critical areas like West Darfur and South Kordofan, leaving thousands without much-needed support (WFP, 2024).

UNICEF has prioritized child protection and health interventions. In 2024, the organization vaccinated 1.8 million children against measles and distributed water purification tablets to over 1 million households in Darfur to mitigate the spread of waterborne diseases such as cholera (United Nations Children’s Fund [UNICEF], 2024). Additionally, in Gedaref, UNICEF collaborated with local ERRs to establish temporary classrooms, allowing 10,000 displaced children to continue their education amidst the crisis (UNICEF, 2024).

Emergency Response Rooms (ERRs)

ERRs have emerged as grassroots-led humanitarian hubs, offering essential assistance in areas that INGOs struggle to access due to security and logistical barriers (Sudanese Civil Society Network, 2024). In Gedaref, ERRs have established 30 operational community kitchens that provide daily meals to over 20,000 displaced individuals (Sudanese Civil Society Network, 2024). During a cholera outbreak in late 2024, ERRs distributed sanitation kits to 15,000 families, significantly reducing the disease’s spread (Sudanese Civil Society Network, 2024).

In Gazira, ERRs coordinated with local farmers to distribute 15,000 food parcels in December 2024, alleviating food insecurity caused by the influx of displaced populations (Sudanese Civil Society Network, 2024). Mobile health clinics deployed by ERRs in the region also provided antenatal care to 3,000 pregnant women in rural areas, addressing critical gaps in maternal healthcare (Sudanese Civil Society Network, 2024).

ERRs in South Kordofan have collaborated with local organizations to set up emergency shelters for 25,000 displaced families in Kadugli. These shelters have been crucial in protecting civilians from the harsh weather and ongoing violence that characterize the region’s humanitarian crisis (Sudanese Civil Society Network, 2024).

The combined efforts of INGOs, UN agencies, and ERRs have been vital in mitigating the impact of Sudan’s conflict on its most vulnerable populations. However, these organizations face significant challenges in addressing the scale of the crisis (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2024).

Challenges Faced by Humanitarian Providers in Sudan

The ongoing conflict in Sudan has created an environment fraught with significant challenges for humanitarian organizations. Accessing vulnerable populations, providing adequate protection, and addressing funding shortfalls are among the most pressing issues confronting aid providers (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2024). Despite their critical role in mitigating the crisis, these organizations face persistent obstacles that hinder their ability to deliver life-saving assistance effectively (World Food Programme [WFP], 2024).

Access Issues

Humanitarian access remains a critical challenge in Sudan, with aid providers frequently exposed to violent threats and logistical barriers (OCHA, 2024). Between April 2023 and January 2025, humanitarian workers faced at least 25 attacks, including kidnappings, killings, and armed assaults. Darfur, in particular, has emerged as one of the most dangerous regions for humanitarian operations (WFP, 2024). Over 70% of aid convoys in Darfur have been looted by armed groups, forcing organizations such as the WFP to suspend deliveries in several critical areas (WFP, 2024). These attacks not only endanger the lives of aid workers but also leave communities without access to essential supplies such as food and medicine (WFP, 2024).

Bureaucratic restrictions further exacerbate access challenges. Both the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) impose onerous conditions on aid delivery, including the requirement of permits for every convoy and the confiscation of supplies under the pretext of “security checks” (OCHA, 2024). In South Kordofan, for example, local authorities delayed aid shipments for over three weeks in December 2024, leaving thousands without food or water during a critical period (OCHA, 2024). Such bureaucratic and logistical obstacles undermine the timely delivery of humanitarian aid and deepen the suffering of already vulnerable populations (United Nations Children’s Fund [UNICEF], 2024).

Protection Risks

The conflict in Sudan has also created a dire protection crisis, with gender-based violence (GBV) and targeted attacks on civilians becoming increasingly prevalent. Between October 2024 and January 2025, over 5,000 incidents of GBV were reported in Darfur alone, primarily in displacement camps where women and girls face heightened risks of sexual exploitation and abuse (UNICEF, 2024). However, access to adequate support services remains woefully insufficient, with only 40% of survivors receiving medical or psychological care (UNICEF, 2024). This gap in service provision is attributed to funding shortages and societal stigma, which deter many survivors from seeking help (UNICEF, 2024).

The deliberate targeting of civilians, particularly ethnic minorities, further compounds the protection crisis. Armed groups have destroyed over 100 villages in West Darfur, displacing tens of thousands of civilians and killing scores of others (OCHA, 2024). These attacks have led to a mass exodus of over 50,000 people into neighboring Chad, where they face overcrowded refugee camps and limited resources (OCHA, 2024). The ongoing targeting of civilians underscores the need for enhanced protection measures and accountability for violations of international humanitarian law (OCHA, 2024).

Funding Gaps

The financial shortfall in Sudan’s humanitarian response is a critical barrier to addressing the scale of the crisis. The 2025 Sudan Humanitarian Response Plan has requested $4.2 billion to meet the needs of 21 million people, out of a total of 30.4 million in need (World Food Programme [WFP], 2024). This represents a significant increase from 2024, reflecting the growing severity of the crisis (WFP, 2024). However, as of January 2025, the plan remains only 60% funded, forcing humanitarian organizations to prioritize immediate, life-saving interventions over long-term recovery efforts (OCHA, 2024).

This funding gap has particularly affected key sectors such as health, education, and shelter, leaving many vulnerable populations without adequate support. For example, in Darfur, food assistance programs have been scaled back, and health facilities lack the resources to address cholera outbreaks and malnutrition (WFP, 2024). Similarly, education initiatives for displaced children have been put on hold, jeopardizing the future of an entire generation (UNICEF, 2024). Addressing the funding shortfall is critical to ensuring that the humanitarian response in Sudan can meet both immediate and long-term needs (OCHA, 2024).

⁠Political Dynamics Influencing Humanitarian Assistance: The humanitarian crisis in Sudan is a product of both the complex internal political dynamics and external geopolitical factors. The Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) have utilized humanitarian aid as a strategic tool, leading to severe impediments in the distribution of aid and the suffering of the Sudanese people (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2024; Médecins Sans Frontières [MSF], 2024).

Control of Aid

Humanitarian assistance in Sudan is often used as a mechanism for political control by both the SAF and RSF. Both factions have reportedly diverted humanitarian aid to territories they control, ensuring that assistance is funneled to populations loyal to their respective sides (International Committee of the Red Cross [ICRC], 2024). This practice leaves vulnerable groups, especially in areas controlled by opposing forces, without adequate support. An internal document by the ICRC in 2024 highlighted how aid organizations face constant restrictions on movement and access due to the political strategies of both factions, who block or divert aid to strengthen their positions (ICRC, 2024). Such practices not only delay relief efforts but often lead to the exclusion of marginalized communities, exacerbating the dire conditions in parts of Sudan (ICRC, 2024).

The diversion of humanitarian aid is particularly critical in areas where civilians are trapped in conflict zones. This has raised concerns about how international organizations, such as the UN, manage to navigate these political dynamics while trying to adhere to humanitarian principles. According to a report by the Sudanese Ministry of Humanitarian Affairs (2024), humanitarian convoys to some regions have been obstructed or confiscated, and in some cases, food and medical supplies are seized by the warring factions (Sudanese Ministry of Humanitarian Affairs, 2024).

Ceasefire and Politicisation

Ceasefire agreements are meant to allow humanitarian aid to reach affected populations, but in Sudan, these agreements have often been politicized and manipulated. The Treaty of Jeddah, signed in May 2023, is one such example. While its primary goal was to create a window for the safe passage of humanitarian aid, both the SAF and RSF have repeatedly violated the terms of the ceasefire, often using it as a tool to gain leverage in peace talks (OCHA, 2024). The negotiations for a broader peace agreement have been delayed time and again, with both sides using ceasefire compliance as a bargaining chip (OCHA, 2024). As a result, the intermittent fighting and lack of stability prevent sustained aid access (OCHA, 2024).

Moreover, the politicisation of ceasefires often leads to the suspension or stalling of aid delivery, as factions demand concessions before allowing aid convoys to pass through certain territories. These disruptions are devastating for civilians who are left without food, medicine, and other essentials (OCHA, 2024). The UN Office for the Coordination of Humanitarian Affairs (OCHA) has called this a “cat-and-mouse” game, where humanitarian access is continuously tied to political negotiations that fail to materialize into lasting agreements (OCHA, 2024).

International Response

The international community has been slow to respond to Sudan’s humanitarian needs, with several reports indicating that the scale of international assistance is far below what is required. The United Nations, in its 2024 appeal for Sudan, sought $2.7 billion in funding, but as of late 2024, only about half of this sum had been met (OCHA, 2024). Despite urgent pleas from humanitarian organizations, international assistance has been hindered by several factors. First, geopolitical considerations often cloud the humanitarian response. The involvement of foreign powers in the Sudanese conflict, especially with countries like Egypt and Saudi Arabia backing different factions, has complicated international efforts (ICRC, 2024). These external interests sometimes delay or even block aid shipments, as some countries use their influence to ensure that aid benefits their preferred side in the conflict (OCHA, 2024).

In addition to political interests, logistical challenges in the region have played a significant role in the slow aid response. Western Sudan, particularly the Darfur region, has seen its borders closed by the RSF, while the SAF controls other key access routes. As a result, aid is often dependent on neighboring countries like Chad, where refugees and displaced Sudanese populations seek refuge (MSF, 2024). However, even the Chadian government struggles to handle the scale of refugees and the flow of aid, resulting in an inadequate humanitarian response in comparison to the actual needs (MSF, 2024). Reports from international humanitarian NGOs, including MSF, have emphasized the underfunding and the difficulties in cross-border aid coordination (MSF, 2024).

In conclusion, the political dynamics of the SAF and RSF, as well as the international community’s response to the Sudanese crisis, continue to impede the effective distribution of humanitarian aid. The control over aid, manipulation of ceasefire agreements, and the political agendas of both local and international actors have prolonged the suffering of millions of Sudanese civilians. There is a critical need for international coordination, the cessation of aid politicization, and increased transparency in the delivery of humanitarian assistance to ensure that aid reaches those most in need. Only through overcoming these challenges can the international community hope to alleviate the devastating impact of Sudan’s ongoing conflict on its population.

⁠Al Jazeera. (2024). https://www.aljazeera.com

Democracy Now. (2024).

International Committee of the Red Cross [ICRC]. (2024). https://www.icrc.org

Médecins Sans Frontières [MSF]. (2024). https://www.msf.org

Norwegian Refugee Council (NRC): To get insights on their response efforts, especially in displacement and protection. https://www.nrc.no

OCHA (United Nations Office for the Coordination of Humanitarian Affairs). (2024). https://www.unocha.org

Radio Tamazuj. (2024). https://radiotamazuj.org

⁠ReliefWeb. (2024).

Sudanese Civil Society Network. (2024).

Sudanese Ministry of Humanitarian Affairs. (2024).

United Nations Children’s Fund [UNICEF]. (2024). https://www.unicef.org

United Nations Office for the Coordination of Humanitarian Affairs [OCHA]. (2024). https://www.unocha.org

World Food Programme [WFP]. (2024). https://www.wfp.org

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Treaties and International Instruments:

Geneva Convention (I-IV) 1949.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

UN General Assembly, Resolution 2675: Basic Principles for the Protection of Civilian Populations in Armed Conflict (9 December 1970).

UN Charter, Articles 55 and 56.

San Remo Guiding Principles on the Right to Humanitarian Assistance.

United Nations Security Council (UNSC) Res 2165 (14 July 2014) UN Doc S/RES/2165.

European Convention on Human Rights 1950.

Case Law:

Cyprus v Turkey (2001) ECHR 331.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14

Prosecutor v Bosco Ntaganda (Judgment) ICC-01/04-02/06 (ICC, 8 July 2019)

Prosecutor v Radovan Karadžić (Judgment) IT-95-5/18-T (ICTY, 24 March 2016).

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) (ICJ, 29 December 2023).

Books and Articles:

Barber R, ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law’ (2009). Chapters 4, 5, 7

Michael Barnett and Thomas G Weiss, ‘Humanitarianism in Question: Politics, Power, Ethics’ (Cornell University Press 2008).

Fisher D, ‘Guiding Principles on Internal Displacement: Annotation’s (2nd edn, American Society of International Law 2010).

Rottensteiner C, “The Denial of Humanitarian Assistance as a Crime Under International Law” [1999] International Review of the Red Cross

Jakovljevic B, “The Right to Humanitarian Assistance - Legal Aspects” [1987] International Review of the Red Cross

Reports and Other Sources:

International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001).

Bruges Resolution, Principles on Humanitarian Assistance.

Mohonk Criteria for Humanitarian Assistance.

Amnesty International, Annual Report 2024 (Amnesty International, 2024) https://www.amnesty.org/en/documents/pol10/7200/2024/en/

Amnesty International, Myanmar/Bangladesh: Rohingya Community Facing Gravest Threats Since 2017 (October 2024) https://www.amnesty.org/en/latest/news/2024/10/myanmar-bangladesh-rohingya-community-facing-gravest-threats-since-2017/

Amnesty International, Ukraine: Humanitarian Corridors for Civilians Fleeing Russian Attacks Must Provide Safety – New Testimonies (March 2022) https://www.amnesty.org/en/latest/news/2022/03/ukraine-humanitarian-corridors-for-civilians-fleeing-russian-attacks-must-provide-safety-new-testimonies/

Amnesty International, U.S. Fails to Implement U.S. Law in Response to Israel’s Blocking of Aid (13 November 2024) https://www.amnestyusa.org/press-releases/u-s-fails-to-implement-u-s-law-in-response-to-israels-blocking-of-aid/

Doctors Without Borders, ‘The Practical Guide to Humanitarian Assistance’ The Practical Guide to Humanitarian Assistance’ (22 February 2016)

https://guide-humanitarian-law.org/content/article/3/european-court-of-human-rights/

Human Rights Watch, Israel’s Crimes Against Humanity in Gaza (14 November 2024) https://www.hrw.org/news/2024/11/14/israels-crimes-against-humanity-gaza

Human Rights Watch, Myanmar: Junta Blocks Lifesaving Aid (13 December 2021) https://www.hrw.org/news/2021/12/13/myanmar-junta-blocks-lifesaving-aid

Human Rights Watch, 'The UN Security Council Should Renew Cross-Border Aid for Syrians' (30 June 2022) https://www.hrw.org/news/2022/06/30/un-security-council-should-renew-cross-border-aid-syrians

Human Rights Watch, Ukraine: Flawed Legislation on Collaboration (5 December 2024) https://www.hrw.org/news/2024/12/05/ukraine-flawed-legislation-collaboration

ICRC, Customary IHL Database

https://ihl-databases.icrc.org/ar/customary-ihl/v2/

International Committee of the Red Cross, 2024 ICRC Report on IHL Challenges (2024) https://www.icrc.org/en/report/2024-icrc-report-ihl-challenges

Just Security, Expert Guidance: Law of Armed Conflict in the Israel-Hamas War (2024) https://www.justsecurity.org/89489/expert-guidance-law-of-armed-conflict-in-the-israel-hamas-war/

Just Security, Days, Not Weeks: Gaza, Starvation, and the Imperative to Act Now (18 November 2024) https://www.justsecurity.org/104867/gaza-starvation-imperative/

Oxfam, Inflicting Unprecedented Suffering and Destruction: Seven Ways the Government of Israel Is Deliberately Blocking and/or Undermining the International Humanitarian Response in the Gaza Strip (15 March 2024) https://policy-practice.oxfam.org/resources/inflicting-unprecedented-suffering-and-destruction-seven-ways-the-government-of-621591/

Oxfam, Israel Receives Failing Grade on U.S. Demands in Gaza (12 November 2024) https://www.oxfam.org/en/press-releases/joint-release-israel-receives-failing-grade-us-demands-gaza

ReliefWeb, Syrian Arab Republic: 2023 Humanitarian Needs Overview (ReliefWeb, December 2022) https://reliefweb.int/report/syrian-arab-republic/syrian-arab-republic-2023-humanitarian-needs-overview-december-2022-enar

Sayed A, Al Jazeera, Israel and the ICC: A legal scholar’s response to the Washington Post (2 December 2024) https://www.aljazeera.com/opinions/2024/12/2/israel-and-the-icc-a-legal-scholars-response-to-the-washington-post

The New Humanitarian, How Have Israel and Hamas Broken the Laws of War? (17 October 2023) https://www.thenewhumanitarian.org/interview/2023/10/17/how-have-israel-and-hamas-broken-laws-war

The New Humanitarian, Targeted Aid Killings: How Israel Starved the Population and Sowed Chaos in Northern Gaza (3 December 2024) https://www.thenewhumanitarian.org/investigations/2024/12/03/targeted-aid-killings-how-israel-starved-population-and-sowed-chaos-northern-gaza-palestine

The Guardian, Armed Looters Hijack Almost 100 Trucks Carrying Aid Supplies into Gaza (18 November 2024) https://www.theguardian.com/world/2024/nov/18/armed-looters-hijack-almost-100-trucks-carrying-aid-supplies-into-gaza

The Guardian, UNRWA Suspends Aid Deliveries to Gaza After Armed Gangs Attack Convoy (1 December 2024) https://www.theguardian.com/world/2024/dec/01/unrwa-suspends-aid-deliveries-gaza-armed-gangs-attack-convoy

University of Oxford, New Legal Research on Gaza War Urges Immediate Action (22 October 2024) https://www.ox.ac.uk/news/2024-10-22-new-legal-research-gaza-war-urges-immediate-action

United Nations Relief and Works Agency for Palestine Refugees in the Near East, What is the Mandate of UNRWA?