Do Non-State Armed Groups Have a Legal Right to Consent to Offers of International Humanitarian Relief?

Abstract

During non-international armed conflicts, fighting parties have repeatedly denied international humanitarian relief to the civilian population under their territorial control leaving them at the brink of starvation. Debates on criminal accountability for violating the prohibition of the use of starvation against the civilian population as a method of warfare have yet to address the question of ownership of the right to consent to offers of international humanitarian relief before criminalising their denial. In respect of such right to consent at the strategic level, there are divergent interpretations on the application of the principle of symmetrical rights and obligations of fighting parties in the realm of international humanitarian relief. Humanitarian and state-centric perspectives, respectively, grant or deny non-state armed groups an independent right to consent to offers of international humanitarian relief. The humanitarian perspective argues that the asymmetry of such right in favour of the government party to the conflict and at the expense of the non-state armed groups is no longer justified, especially when the right of control at the operational level (after an offer has been accepted) is equally bestowed upon all parties to the conflict. The state-centric perspective defends the exclusive right of the government party to the conflict and fears that an equal right to strategic consent for non-state armed groups would increase their legitimacy. This study argues that neutrality upheld by international humanitarian relief actors, including impartial humanitarian bodies, such as the ICRC, and the Security Council gives rise to an interdependent exercise of the right to strategic consent by all fighting parties instead.