Chanu Peiris
Good afternoon and thank you for joining this discussion on humanitarian action amidst coronavirus and counter terrorism measures. I’m Chanu Peiris, Manager of the International Law Programme here at Chatham House and with us to discuss this timely topic is Itay Epshtain, Senior Humanitarian Law and Policy Consultant serving as Special Advisor to the Norwegian Refugee Council and the Association of International Development Agencies, and Emanuela-Chiara Gillard, an Associate Fellow of the International Law Programme at Chatham House.
Now, according to the World Food Programme, the world is not only facing a global health pandemic, but also a global humanitarian catastrophe, with COVID-19 contributing to the worst humanitarian crisis since World War II. With deepening conflict, in a number of countries being partially responsible for the current situation, the continued violation of a number of rules, such as the rules aimed at ensuring civilians’ access to objects indispensable to their survival have been brought dramatically to the fore. Manu, can you perhaps start by telling us a little bit more about the key elements of the rules regulating humanitarian relief operations?
Emanuela-Chiara Gillard
Certainly, it’s a pleasure to join you today, and the rules of IHL regulating humanitarian relief operation have strangely received very limited attention, until quite recently and this is unwarranted, because more civilian deaths and suffering occur as a result of the crises caused or exacerbated by armed conflict, than by the actual conduct of hostilities themselves.
Now, the key elements of the rules of IHL regulating humanitarian relief operations are straightforward and, essentially, the same in both international and non-international armed conflict. The starting point is that primary responsibility for meeting needs lies with the party that has control over the population. If this party is unable or unwilling to meet the needs, then offers of impartial assistance can be made. The consent of the state, in whose territories the relief operations will be conducted, is required, but may not be arbitrarily withheld. There are two situations in which a state has no margin of manoeuvre to withhold consent, the first is situations of occupation. If there are unmet needs, the occupier must agree to relief operations. And secondly, situations where the Security Council has imposed relief operations, and we’ve only seen that one instance, Syria, at the moment. And then, the important step is once this consent has been obtained, all sides, state, non-state actors, must allow and facilitate the rapid and unimpeded passage of humanitarian relief consignment and operations, but are entitled to take measures of control, impose technical arrangements to regulate such passage.
So, it’s important to bear in mind it is a two stage process: an initial authorisation of the operations and then, subsequently, an obligation to allow and facilitate the passage, coupled with an entitlement to take technical – to impose technical arrangements. Now, in recent conflicts, and Syria in particular, have led us to focus very much on the first step, the initial green light to be in the country and to operate. But the reality is that in practice, it is usually at the second stage that problems arise for humanitarian actors.
Chanu Peiris
Itay, could you tell us a little bit about how COVID is complicating the humanitarian response further?
Itay Epshtain
Thank you, Chanu, and thank you everyone on the call. Perhaps I could share with you the address by the UN Secretary General to the Security Council last month, when addressing the COVID-19 pandemic, he outlined three priority areas where further support and action are needed. First, ensuring humanitarian access, opening corridors for safe and timely movement of both goods and humanitarian personnel. Second, mobilising strong and flexible funding for the COVID-19 response plan and existing humanitarian appeals. And third, and we will focus on this during today’s talk, protecting the most vulnerable population and those least able to protect themselves. He stressed that international humanitarian, human rights and refugee law continue to apply, even, especially in challenging times like these. These interrelated priorities could serve as a useful litmus test to the adaptation and gaps faced by the humanitarian community.
Out of the 51 priority countries in the Global COVID-19 Response Plan, 19 are subject to centralised autonomous sanctions regimes or have designated groups present. That is an issue Emanuela will develop later this afternoon. 25 are engaged or engulfed in armed conflict, whether international or non-international, seven of which are, at least, in parts, under belligerent occupation. It triggers the application of international humanitarian law, IHL, the duties of parties to the conflict and the rules on humanitarian relief. Some have already been referred to by Emanuela and it presents challenges, in terms of the execution of prophylactic public health measures to prevent communicable diseases from spreading, providing impartial and best attainable quality medical care and of the provision of humanitarian relief, medical or otherwise.
In recent weeks ACAPS, the humanitarian experts’ network, collected real time information about the impact of COVID-19 and have reported several concerns that were consistent across all regions, against a scenario of partial containment of the pandemic at this point. Across the world humanitarian and development operations continue, but they are shrinking, and they are challenged. There’s been a reduction in programmes, with some already closed. Protection and education programmes, I would say, are particularly difficult to deliver and are not being prioritised and national donor responses, from what we can see. And containment measures are already resulting in loss of livelihoods and economic downturn, reducing food security for the most vulnerable, among them people living in informal, congested urban settlements, people living in conflict areas, internally displaced and refugees. We see exclusion of marginalised groups, domestic and gender-based violence that are on the rise across the world.
And perhaps as a final remark, look at states and non-state groups that are in control of population. They should introduce prevention and mitigation response measures, in a manner that does not violate obligations they have under international law. And nothing else is more significant than in relation to migrants, internally displaced persons and refugees and situations of armed conflict. In those, IHL remains the key legal framework to provide crucial safeguards to civilians, if caught in conflict as they face a public health emergency. And we are witnessing both operational challenges to humanitarian access and service delivery across all sectors. They come with an almost unprecedented pandemic of enormitive dilemmas on the interpretation and application of the law.
Back to you, Chanu.
Chanu Peiris
Yeah, so, what does the law have to say about all of this, Manu?
Emanuela-Chiara Gillard
Thank you. Well, we are in the second stage of the rules regulating humanitarian relief operations, so the allow and facilitate imposed technical arrangements and, unfortunately, the law says very little, in relation to both sides of this equation. In terms of what allow and facilitate requires, we have very little. Passage must be as rapid as possible. There should be no harassment of humanitarian actors, obviously no attacks against them. Administrative procedures should be reduced, and restrictions can be imposed on the activities and freedom of movement only in case of imperative military necessity. And, in fact, as I read those words, I think that they need to also be interpreted more broadly in the context of a pandemic. I think that no-one is questioning the entitlement of states to take measures, as Itay was saying, to prevent and mitigate the spread of the virus. The question is, what can these technical arrangements be? So, the other side of this balance and, again, the law says nothing about the permissible technical arrangements. It’s clear that their effect must not be such as to leave the populations or segments of the population without the assistance we – they need.
Now, ordinarily, when we’re discussing technical arrangements in situations of active hostilities, what we’re looking at is particular times when humanitarian relief convoys can transit routes, the possibilities of carrying out searches. These are the kinds of arrangements we all – we normally discuss, but it’s evident that in a situation like a pandemic, there are others that come into play, measures that a state should, in fact, be taking to protect population from the virus, what measures could they be requiring of humanitarians? And this is very much what humanitarian actors should be now agreeing among themselves and negotiating with the various parties to the conflict, what are the minimum steps that we should be taking to ensure that we do not spread the virus, we do not put beneficiaries at risks, we don’t put others at risk? In the context of the UN Global Humanitarian Response Plan that Itay mentioned at the outset, the World Food Programme and the World Humanitarian Organisations have come up with a number of recommendations for states very focused on aviation, steps that can be taken by the aviation sector to ensure that goods come in. We need to come up with the similar good practices that take both the need to respond and also, the entitlement, in fact, the obligation of parties to make sure the virus isn’t spread further, in terms of movement of staff, in terms of movement of relief goods, and also in terms of the actual conduct of humanitarian activities, such as distributions. These must be carried out in a manner that are safe.
Chanu Peiris
And Itay, how has this been addressed in the occupied Palestinian territory, in terms of the types of restrictions you’re seeing?
Itay Epshtain
Thank you, Manu. So, I’ll try and pick up on where Manu has left off and the protection of the population living in occupied territories, certainly in the face of this pandemic, is determined by the standards set out primarily in international humanitarian law, in IHL. Let me try and elaborate on those.
Primarily, it sets out that the occupying power has to protect the health and life of the occupied population, in addition to regulations that administer numerous aspects of the administration of occ – regulate numerous aspects of the administration of occupied territory. You can see that’s set out or flows from Article 43 of the 1907 Hague Regulations. In the context of a contagious disease, these measures would include, and these are just examples, supervisions of public health and education of the public, the organisation of medical examinations in disinfection, the establishment of stocks, of medical supplies and protective equipment, the isolation and accommodation in hospital of people suffering from communicable diseases, COVID-19, and the opening of new hospitals and medical centres. It also requires the occupying power to import the necessary medical supplies, such as medications and vaccines, should they become available, in the future, when the resources of the occupied territory are inadequate.
The Fourth Geneva Convention also provides for the case in which the occupying power is unable to adequately supply the occupied territory. This could be the case, for example, if the medical supplies are needed to fight a pandemic in the very territory of the occupying power. Under Article 59, if the population of an occupied territory is inadequately provisioned with medical supplies, the occupying power then must agree to receive a consignment of medical supplies offered by states or impartial humanitarian organisations. Malu – Manu has already alluded to these rules. This duty is, I would say, absolute and the Convention does not embody any ground that the occupier can invoke to instruct relief. However, the occupier can adopt measures of control and impose technical arrangements, provided that the needs of the local population are, ultimately, met in accordance with humanitarian principles.
Relief consignments cannot be blocked for capricious, for arbitrary, for otherwise unlawful reasons, but I would say that gauging the decision of an occupying power during a pandemic would be challenging, or at least very context dependent. I would suggest analysing these decisions against the human rights-oriented duty of ensuring the highest attainable standards of health and living conditions for each individual in occupied territory. And, accordingly, the occupying power should address epidemics, taking into account the health of local population as the primary objective of its action, including in facilitating collective and individuals’ relief distribution.
I will not spend a lot of time on the direct and secondary impacts of COVID-19 in occupied Palestinian territory, but I would say and briefly mention the obstacles to referrals for urgent medical treatment outside the West Bank and Gaza and the backlog that we’re already seeing of elective surgery, due to public health prevention measures. Likewise, I won’t go into the details of impacts on communities in at risk groups, but would just say that reports indicated deterioration in mental health and psychosocial wellbeing across the oPt, in gender-based violence, response providers reporting a continuing demand for services, with an increasing number of calls from young men and adolescent boys to hotlines, complaining of abuse by parents and siblings. Risks associated with schools and childcare disruptions and a chronic lack of safe places and recreational areas for children are also of concern.
Turning briefly to access and availability of basic goods and services, as well as the quality of those goods and services. One particular disturbing feature, the impact and the availability of residential shelter, water and sanitation facilities and livelihoods is the destruction, continued destruction of communal and private property in the West Bank.
Finally, let me address the broad impact on humanitarian access, supply chains, funding, staffing and any measures humanitarian organisations take in response to the crisis, including changes in focus areas, targeting modality of scaling of interventions. A recent survey we conducted amongst 74 humanitarian and development organisations operating in oPt addressed the impact of COVID-19 on programming and operations, with 78% of surveyed organisations reporting changes to the modality of service delivery. Particular sectors of humanitarian and development programmes have been prone to the effects of the public health emergency: education, community development, gender-based violence protection programming, have seen suspension in 36 to 38% of instances. Protection, including child protection, has been adversely affected in 21 to 26% of instances, in other sectors a lesser impact is reported.
Reflecting on the impacts of COVID-19 has been had on beneficiaries in oPt, 7 – 67% of organisations reported loss of livelihoods and economic downturn, 47% reported increased food insecurity among their beneficiaries. There are concerns that rural communities, particularly Bedouin and herding communities, are more vulnerable to COVID-19, due to their limited access to food security, hygiene, healthcare. And 43% of organisation communicated concerns that overcrowding urban areas, including Gaza, East Jerusalem and West Bank refugee camps will face considerable health and economic risks. 39% of organisations indicated increased reports of gender-based violence, particularly against women and girls, with 7 – 27% reporting increased tensions and breakdown of social cohesion, including discontent with Palestinian national authorities. That last point should possibly serve as a reminder that all of the responsible authorities, Israel as the occupying power, the Palestinian authorities in the West Bank of Gaza, they all bear the duty to provide essential health services and apply public health measures throughout this pandemic in a non-discriminatory fashion.
Chanu Peiris
Manu, in your recent paper on 70 Years of the Geneva Conventions you conclude by saying, and I quote, “Finally an overarching challenge to compliance with IHL in the past decade is the interplay between IHL and counter terrorism measures. This is a source of tensions that could undermine the protections set out in IHL and can hinder principled humanitarian action and activities to promote compliance with the law by organised armed groups.” How are counter terrorism measures affecting humanitarian action?
Emanuela-Chiara Gillard
One of the key elements of the International Counter Terrorism Network framework is stemming the flow of assets to groups designated as terrorist. Many such groups are non-state armed groups involved in non-international armed conflict, with control over civilians in extreme need of assistance. We have Al-Qaeda in the Arab Peninsula, in relation to Yemen, Boko Haram in Nigeria, Al-Shabaab in Somalia, and Hamas in Gaza. There is a risk that in the course of their operations, incidental payments that humanitarians must make, in order to operate or the diversion of goods, could fall within the hands of designated groups and, therefore, fall within the scope of the prohibition, giving rise to liability for humanitarian actors and their staff, the humanitarian organisations and their staff. So, this is a problem that has existed, of which we’ve been aware of for a decade, at least. It isn’t specifically related to the COVID pandemic. However, it adds an additional layer of complications. So, when you hear about the range of restrictions that humanitarians are facing, these could be export restrictions that states have legitimately imposed on the export of medical items, protective items. These could include sanctions and it tends to be the comprehensive sanctions that are most problematic, but it is also country specific sanctions, as well as counter terrorism measures such as these, that preclude making funds or assets available to designated entities that really expose humanitarian actors to an additional risk of liability.
That’s a short answer, Chan. I know it could be a very long conversation, in terms of the range of restrictions, their knock-on effect. It is not just humanitarian actors that must comply with these measures, it is everyone, including banks. We see banks extremely reluctant to provide banking services to humanitarian actors, which makes it impossible for them to operate in certain contexts. We could also be discussing extremely problematic, very broad interpretations of not providing goods and services to designated groups. So, for example, an extremely troubling development has been the criminalisation, in certain contexts, and the punishment of the provision of medical care to wounded fighters, who are designated as terrorists. Now, it’s a foundational principle of IHL that everyone is entitled to provi – to receive medical assistance and that those who provide it must not be punished. So, an extremely troubling development, due to this interplay between counter terrorism measures and the protections afforded by IHL and part of the range of issues and limitations that humanitarian actors need to grapple with, in the course of the pandemic.
Chanu Peiris
Itay, Hamas is a designated group under the – by the EU and a number of other states, so how is this affecting the COVID response?
Itay Epshtain
So, I would say, routinely, in Gaza, the restriction on freedom of movement of both persons that disrupts the economic, social and cultural life of the area, without justification. And the use of methods of warfare, maritime and air blockade and closure on land and in the absence of active hostility, violates the duty to restore and ensure public order and compromises the abilities of authorities in Gaza and humanitarian actors assisting them in preventing and responding to an eruption of contagious diseases.
In the immediate future, we need to contend with the reality under which Hamas is designated, is a designated group and it is the Executive in Gaza, it is the ruling party, while ensuring that the civil authorities have – are capacitated to respond and that counter terrorism regulations and political directives do not undermine co-ordination of the international aid efforts.
I would say that equating Hamas, again, it is a designated group, with the civil authorities of Gaza, requiring support to mitigate and respond to the spread of COVID-19 would turn targeted financial sanctions into measures that can have a far broader adverse impact on an entire population of two million people that are at risk of infection, even if, for now, they have averted some of the worst that could have happened.
Basic principles of good governance, I would say, dictate that while the Executive, Hamas, sets the strategies that the civil administration then follows, these two remain distinct and therefore, there’s no reason to presume that the provision of funds or other assets to a ministry, or to any other part of the civil authorities, civil administration. And Gaza would be considered as a prescribed provision to Hamas, the ruling party and in the position of Civil Servants in the health, shelter, water sanitation, education sectors, which require training and expert advice, is similarly clear. There is no basis on which they could be considered members of a designated entity merely by virtue of their employment in the Civil Service, in a context where the ruling party is a designated entity.
If it was demonstrated that funds or other assets were transferred from civil administration structures to Hamas, then, those who are providing them: donors, donor states, international organisations, INGOs, would have to consider the risk of this happening with the funds or other assets that they have provided, from a – from the perspective of diversion and the risk of diversion. No evidence of that has surfaced today, despite an ongoing defamatory campaign led by the Government of Israel and affiliated lawmakers, including in the UK. If you refer to the oPt COVID-19 response plan, despite the limitations on movement within the West Bank, including East Jerusalem, and between the West Bank and the Gaza Strip, the plan speaks to, for example, the provision of training and equipment to Multidisciplinary Response Teams, quarantine centres in Gaza, supplies, the provision of supplies and technical support to designated COVID-19 hospitals in the Strip, as well as installing handwashing stations, sanitation items and discharge of waste water and medical waste at healthcare facilities at a community level. So, we’re seeing, despite all of these limitations that have to be addressed and tackled, we’re seeing in the response plan quite a comprehensive approach and the provision of assets to the ministries and other public authorities in the Strip.
Chanu Peiris
I think it’s time for Q&A and they’ve come filtering in. I’ll start with a question from Françoise Hampson, who asks, “Leaving aside the delivery of stuff and personnel, do parties to an armed conflict, including non-state actors, have an obligation to protect populations under their control through policies such as isolation or practices such as testing, even thought the threat of harm doesn’t come directly from the conduct of hostilities? And if so, is the source of the obligation IHL or international human rights law?”
Emanuela-Chiara Gillard
Excellent question. Absolutely, they do have an obligation. Where is the source? And I think the answer is, it depends, and Itay, please come in as well, ‘cause you’ve been looking at this a lot more closely. I would say that if we’re looking at a situation of occupation, the occupying power has clear obligations, in this regard, under IHL. If we are looking at a situation of international armed conflict and a state has an obligation towards its civilians, its – the civilians in the area it controls, I would say under human rights law. If there are people deprived of their liberty, I think that if it’s in relation to the conflict, obligations would also come in under IHL, and then, there’s the interesting question of what about organised armed groups? They might be controlling territory and people. I would say they have obligations to ensure their wellbeing. Would I find them under IHL? I would say yes, customary law. I’m just hesitating, ‘cause it’s more difficult, as we know, to impute obligations on organised armed groups under international human rights law, but in situations where they do have effective control and the capacity to, oh, or are actually carrying out governmental-like activities, then, that could also be a basis through human rights law. Itay probably has…
Itay Epshtain
Yeah.
Emanuela-Chiara Gillard
…a part to add.
Itay Epshtain
Maybe I could just complement that and thank you, Professor Hampson, for that question. I think this is one of those instances where, when it comes to the law of belligerent occupation, I think that this is probably a very simple answer to this. There is an obligation to administer the territory for the benefit, and its resources, for the benefit of the protective population, of the population in the hands of the enemy. And I think that obligation, once it’s unpacked in international humanitarian law and the Fourth Geneva Convention, but, also, I think that could be complemented or animated by a – by international human rights law. And, certainly, thinking of one occupying power, in relation to occupied Palestinian territory, Israel is a state party to numerous human rights conventions of covenants. Some elements of those are non-derogable and so apply, even in the – in a time of a public health emergency. So, I think that’s easier.
And perhaps it’s equally simple, in terms of an international armed conflict, when you say – you look at the complementarity and the application in tandem of international humanitarian law, the law upon conflict and international human rights law. Perhaps another way of looking at this is looking at this with through the angle of derogation, of permissible prescribed derogation for international human rights obligations. So, clearly, you see now with the – from the Committee on – Convention on Civil and Political Rights, that they’ve made it very clear once – I mean, there is a procedural issue on reporting derogation, but secondly, in terms of substance, members of the Committee have responded, saying that, clearly, “Derogation would not be possible if it undermines obligations – other – under – oth – their other human rights instruments for international humanitarian law, to the extent that they are not – there’s no permissible derogation.”
There, when it comes to the rights to life and health, I would not – I struggle to see how that would be a derogable right. So, an occupying power could dismiss that. A belligerent could dismiss that obligation. It’s very difficult to see that and I think it’s further animated by these human rights obligations.
Chanu Peiris
The next question we have is from Ian Scobie, who asks, “If a state impedes or prevents humanitarian relief to its own population or another, for instance a landlocked state or one under occupation, what remedies are available, if any?”
Emanuela-Chiara Gillard
Excellent and very important question, practically, Ian, thank you. It’s something that was tackled in the Oxford Guidance on the Law Regulating Humanitarian Relief Operations, which I understand has been shared. What can you actually do? And I think even before we get to that, one of the problems, as a matter of law, let me start off by saying negotiate, negotiate, negotiate, ‘cause that is how you obtain humanitarian access, that’s how you resolve problems. So, that is how humanitarian actors should try and resolve problems, address impediments. But we’re having a legal discussion here, what does the law say? And it is challenging, it’s challenging even to determine at what point a state has violated its obligations. So, something that the Oxford Guidance looks at closely is, “At what point can a state be considered as having arbitrarily withheld consent to offers to conduct humanitarian relief operations?” So very much the first step, at what point? And we set out a number of instances in which a state can be considered as having done so, essentially when it violates obligations under – other obligations, so, for example, the prohibition on starvation of population, or the entitlement to receive medical care. If it withholds consent in a manner that would amount to that, a violation of that rule, then it is withheld arbitrarily and, therefore, unlawfully.
That’s far easier to establish as a matter of law and practice than when has a state violated its obligation to allow and facilitate, or when has an organised armed group violated it? This is far more difficult to determine. Not every impediment is a violation of the law. So, the conclusion in the Oxford Guidance is that rule is not something that needs to be looked at in a bilateral relationship, because a state has not allowed this particular organisation to operate, then it has violated the obligation. No, you’ve got to look at the overall effect of the limitations on all the actors that can operate. And if the overall effect is, essentially, to make it impossible for sectors of the population to receive the goods essential to their survival that they need, then, you can say you have violated that obligation. So, that’s already difficult as a matter of law and fact, to get to the stage of yes, we – the obligation has been breached.
What happens when this is the case? And I think we need to look at this in two – from two perspectives. From the point of view of the party that is withholding consent or failing to allow and facilitate, as required. Obviously, there’s a possibility of take – imposing sanctions against that particular party and the Security Council has done that, on a small number of occasions, framed in different ways, but, essentially, obstructing access is a basis for the imposition of sanctions. Individual criminal responsibility: there was a war crime of starvation in the ICC Statute, which included wilfully impeding humanitarian relief operations. This was initially only in relation to international armed conflict. The Secur – the statute was amended at the end of last year to also include the crime in international armed conflict. So, this is the kind of liability, in terms of international criminal law, pressure, in terms of sanctions.
What does it mean for the actors that want to conduct relief operations, are they entitled to do so if they – if consent is withheld arbitrarily? And the position here is different, according to the actor wishing to conduct relief operations, and I’m really going to enter into the thickets of international law. This isn’t something that’s addressed by IHL. We’ve got to look at the general rules of public international law, and here, if we’re looking at a state or an organised armed group that is providing assistance without consent, it would be entering into a territory and it would be violating its territorial integrity and this is a violation of public international law. And the fact that a state has withheld consent doesn’t, somehow, authorise them to do this. It might be possible, in a very small number of situations, under the doctrine of necessity, which would preclude an otherwi – the wrongfulness of an otherwise wrongful act. So, it’s a very small window of opportunity, but it could be something that we might be seeing in Syria today, in relation to the North East and maybe this is something we can come back to later.
The position is different for the staff of NGOs. They don’t violate public international law if they enter the territory of a state without its consent, but they might be, via exposing themselves to the risk of liability under the domestic law of that state. And again, to use Syria as an example, Syria has criminalised entry into its territory without a Visa. So, anyone who is entering the territory of Syria, without authorisation, exposes themselves to the risks of liability. A long answer.
Itay Epshtain
Maybe I could add, briefly, onto Professor Scobie’s question and to Emanuela’s response. I think we need to draw a distinction between a sovereign state, which is able to deprive its own population from relief and reject offers of international assistance, and both the legal and, I would say, practical realities of occupied territory, it has an obligation to provide and it has an obligation, a corollary obligation, to receive where it cannot adequately provision. And there, there are no grounds for rejection there. There are grounds to introduce arrangements to facilitate, but there are no grounds to reject those genuine offers of impartial humanitarian relief, when the population is not adequately provided to.
I would say, in relation to this, and I think – and this is perhaps more drawing on my practical experience, I think we’re quite adept in analysing, in a particular situation, where the denial of consent or the withholding of consent is done for – in an arbitrary fashion, it’s capricious, or it’s done for unlawful reasons that it compromises other obligations that the occupying power would have. What complicates it are the prophylactic measures, the public health measures that are introduced in response to COVID-19. They prevent the movement of humanitarian personnel. They prevent us from introducing relief schemes and goods into affected areas. And there you have to analyse, and this is why in my initial comments I said this is very “context dependent”, you have to analyse whether or not these restrictions are imposed or undertaken in good faith or not. Are they actually meant to accomplish the objective of preventing the spread, mitigating the spread of the contagious disease, or are they meant to do something that would be otherwise wrongful, that would be wrongful to deprive the population from receiving offers of relief and relief consignments?
I have to say, right now, what we’re facing, in relation to the movement of humanitarian personnel within the West Bank, between the West Bank and East Jerusalem, and into Gaza, makes that analysis very difficult. On the one hand, we’re seeing measures that were introduced both by Israel as a sovereign within its territory, as an occupying power, but also, with bi-Palestinian authorities in the West Bank and Gaza. And we have to analyse through all these layers of limitations, restrictions on movement, to assert whether they’re genuine, in terms of their objective and purpose and scope, or whether they’re actually wrongful and, therefore, we would consider them to be arbitrary or unlawful withholding of consent to provide humanitarian relief and will proceed, nonetheless, with all the risks that are associated. But I would say that even for those with international legal personality, the third states that furnish and finance these relief schemes, that they’re able to determine that consent is unlawfully withheld, they can proceed, nonetheless. Again, I limit that comment, or I caveat that comment to occupied territory. Then you would view the humanitarian relief as a form of lawful countermeasure. They’re interceding, they’re intervening in the provision of that relief to provide reparations to victims that could otherwise not – could not claim reparations. But again, and I – that is a view I share with Manu, I think that interpretation, both as a matter of legal theory and application, is limited to the context of occupied territory. That would be inherently different when it comes to sovereign territory.
Chanu Peiris
I have a question from David Rickard, who asks, “In the context of the pandemic, how is – how are the isolationist policies overall shaping the atmosphere for humanitarian action?” Particularly he asks about Syria and Yemen.
Itay Epshtain
Over to you, Manu, I’m…
Emanuela-Chiara Gillard
Sorry and I’m struggling with the term ‘isolationist policies’, but perhaps I’m going to – I am going to pick up on a question that was coming up in the discussion and is Syria lated – related and does tie in with what we’ve just said. I’m going to take this as an opportunity to discuss, a bit, the arrangements in relation to Syria, if I may, and what we have seen, in Syria over the years is, essentially, an arbitrary withholding of consent. So, it is extremely difficult for humanitarian actors to get the green light to operate.
So, what has happened is that the Security Council, in an unprecedented move, has imposed relief operations on Syria, cross-border and crossline. It adopted a resolution in which it stated that humanitarian actors, UN and its implementing partners, were authorised to deliver assistance through four named crossings, one from Jordan, two from Turkey, one from Iraq and all those already in use in July 2015. So, this is quite unprecedented. Essentially, it’s setting the requirement of consent of the host state aside, and I’m coming to your question, David.
What has happened, this measure has been renewed every, initially six months and then every year, until last December. And what happened in December was difficult negotiations that led to the renewal, just for two of the named crossings, those from Turkey, so into the North West of the country, but tho – continuation of those already in use, but removal from the list of two crossings, one from Jordan, which hadn’t been in use for 18 months. But, importantly, the one from Iraq that allowed, principally, medical assistance to come into the North East of the country.
So, I don’t know whether this is your question about isolationist policies, but it does raise the question of what happens now? When this aspect of the resolution wasn’t renewed in January, we didn’t know about COVID, but we now have a situation where there is a pandemic, a population that’s significantly cut off from the rest of the country, crossline deliveries are extremely problematic and limited, and where the source, the crossing through which medical items were coming into the country has been closed. What does that mean as a matter of needs? The Security Coun – the Secretary General has just issued a report to the Security Council outlying the extent of the needs.
Where do we find ourselves, in terms of the law? We might actually find ourselves in that situation of necessity that I was mentioning before. So, that possible opening of the door to the general rule that provides consent, arbitrary withholding of consent, does not entitle intergovernmental organisations or states to deliver assistance, unless, unless we fall – we find ourselves in a situation of necessity. And a situation of necessity, and this is something that the ILC, International Law Commission, has addressed in its articles on the responsibility of state, and may be invoked to justify an otherwise unwrongful act, if that act, so in our case the delivery of assistance, was the only way to safeguard an essential interest against a grave and imminent peril. And I think that in the current situation, we might actually be looking at safeguard an essential interest, healthcare in a time of pandemic, against a grave and imminent peril and that does not seriously impair an essential interest of the state. And, again, I feel that allowing medical consignments in, in these situations would not impair an essential interest of the injured state.
So, interestingly, we might, in fact, be finding ourselves, in relation to Syria, possibly in relation to Yemen, have to confess, I haven’t followed as closely, in one of those situations where it would, in fact, be permissible to carry out limited humanitarian relief operations without the consent of the state.
Chanu Peiris
Perhaps I might ask a question of my own. We’ve now seen, since 2001, an extended period where humanitarian action has been con – to an extent, impeded by counter terrorism measures. What are the lessons for humanitarian actors from the counter terrorism era?
Itay Epshtain
Manu, if you want to say something a bit more of a global scale and maybe I could complement that with the realities in oPts.
Emanuela-Chiara Gillard
Yes, I should share a cartoon. I’ll put a cartoon up afterwards. What have we learnt? I think we have learnt that we’re up against a situation where what I consider to be the an – the right answer is the complicated answer. And we’re fighting what seems to be a very simple question, or challenge, do not provide the bad people the assistance. And I think what I definitely have learnt, in these past two decades, is the need to stand firm, to ensure that there is an understanding of the law. If challenges are made to the law, the law is inadequate, the law is inappropriate, there’s a need to engage, and I’d say that’s very much a lesson learned. You’ve got to really try and understand what the different challenges are and to engage with them and to try and identify if it really is a problem with the law, if it’s a question of lack of clarity. And a lot of the recent exercises in developing the law have not been treaty-making, but rather efforts at clarifying, very much picking up what are these questions that are raised and how can, how does the law address them, how can other areas of law, perhaps not IHL, address them? And it’s an ongoing conversation that I think, and call me an optimist, becomes more sophisticated, more granular over time and that is possible, because when – that is something positive, ‘cause we are narrowing in on the areas of divergence of views.
And if you allow me to give you an example, in relation to sanctions and counter terrorism, I think that in the past decade the conversation has become a lot more sophisticated, in terms of what the problem is, in terms of identifying exactly what the limitations are in counter terrorism measures. People frequently refer to a broad prohibition on providing material support. That exists in US law, but if you actually look at the UN treaties, if you look at sanctions, it’s far narrower. It’s looking at the provision of assets and services. And then, it’s also a question of negotiation, trying to reconcile the differences, and let me give you the example of the Syria sanctions, because they are of immediate relevant to humanitarian action.
One of the measures, when these sanctions were adopted originally, in 2012, was a prohibition on the purchase of fuel within Syria. These – this made humanitarian operations impossible. You couldn’t drive your car. You couldn’t purchase fuel. As a result of dialogue, of understanding what the concerns of humanitarian actors were, but also what the concerns of the states that imposed the sanctions were, in 2020 we’re in a situation where humanitarian action – actors have an exemption from this prohibition. Humanitarian actors that receive funding from EU member states or other states are not subject to this prohibition. Other humanitarian actors can apply for an exemption.
So, I think, to me, this is – really exemplifies the need for dialogue to pinpoint – identify really what the points of concerns are of the various sides and to try and find ways of finding a middle ground that addresses both sides.
Itay Epshtain
Maybe just to add to that, and very much thinking on my feet, I think we’ve moved along an arc, and where we were, a few years ago, where there was a preference towards constructive ambiguity, or at least that’s – that is the way it was packaged, in relation to the interpretation and application of counter terrorism. Legislation, regulation and the way it’s manifested, I think for humanitarians, the way it’s manifested in grant agreements and the various obligations, regulatory obligations they’re bound by. But we’ve moved along an arc towards seeking clarity, understanding that these are complex regulatory environments to navigate, but seeking clarity. And I think the movement along that arc was motivated by two things, at least that has been my experience.
One, it’s been motivated by the defamation of, initially, human rights defenders and human rights groups, but increasingly, of humanitarians, allegations, unsubstantiated, erroneous allegations, that humanitarians are either directly providing assets that they are precluded from providing, to designated groups, or they’re allowing those to be diverted. And the need to be able to build confidence within the leadership of [inaudible – 51:56] organisations with their respective donors and constituent. So, I think that defamation has triggered seeking clarity to be able to pushback on erroneous and defamatory allegation.
And the second is the effect of self-censorship, where organisations that are not able to carefully unravel, analyse the way these regulatory measures apply to them, tend to take a more conservative, overly conservative, an overzealous application, if you want, of those measures that ultimately limits their programming, limits their reach, so, in which sectors they’re able to operate, which beneficiaries they’re able to serve, in which territories they’re able to present, because they’re in areas that are subject to sanction regimes, because they’re in areas that are under the control of designated groups that have controlled the population that is in need. So, I think that all – these two, wanting to open up more operational humanitarian space and reach, and the need to response – to respond to the defamatory campaigns, some are government-led defamatory campaigns, this was certainly the case in Israel/Palestine, has moved us along that arch.
Where have we landed? So, just to give you two very recent examples of our reality in oPt, and I’m conscious of the time. One is, obviously, and we’ve already touched on this, in relation to Gaza, you have two million people, they are under the authority, the actual authority of an Executive that is – that political party, Hamas, is a designated group, but also maintains line ministries, government authorities, that provide essential service to the people there, in co-operation with third states, in co-operation with international organisations inter – non-governmental organisations, in the provision of these services. And this is where you need to navigate carefully, not to fall foul of the law, but also, to be able to capacitate the service of delivery and, as we referred to already, maintaining that distinction between the designated political party and the Civil Servants that serve – answer the needs of two million people.
The other is in relation to community-based organisations that face allegations that they are somehow loosely affiliated with designated groups. So, they, themselves, are not designated groups. Members of their staff or board are not designated natural persons, but there have been allegations in the public domain that they’re somehow – they maintain relationships, they have – they are affiliated, in one way or another, with a designated group. There’s no proprietary interest of that designated group in the community-based organisation, in the local NGO, but nonetheless, these allegations require clarifying that providing them with resources and assets does not violate any prohibition on the provision of assets. Two very recent examples that we contend with, in relation to Gaza, in relation to Palestinian NGOs.
Chanu Peiris
Thank you, Itay. I’m afraid that’s time, so, before we all sign off, can I please draw everyone’s attention to the ‘Chat’ function, where my colleague, Amrat, has listed a number of publications that Manu is too humble to point to herself, which cover a number of years’ worth of work on related subjects. Itay, was there any materials you wish to draw attention to?
Itay Epshtain
Thank you, very good.
Chanu Peiris
In that case, please thank the panellists silently. Thank you, Manu, and thank you, Itay, so much for your comments today.
