As the world remains shocked at the atrocities committed against civilians in the northern Rakhine state, Myanmar government has once again blocked all aid agencies from delivering vital supplies of food, water, and medicine to thousands of civilians trapped in military campaign zone.

The Guardian quoted the Office of the UN Resident Coordinator in Myanmar that "because the security situation and government field-visit restrictions rendered us unable to distribute assistance," suggesting authorities were not providing permission to operate. Further to this United Nations High Commission for Refugees (UNHCR), the United Nations Population Fund (UNFPA), and the United Nations Children’s Fund (UNICEF), the UN World Food Programme (WFP) and sixteen major non-government aid organisations – including Oxfam and Save the Children – have also complained that the government has restricted access to the conflict area.

It is not the first time that humanitarian actors face the challenge of providing humanitarian aid to the victims. Governments, especially those who fight rebels in their territories, keep humanitarian agencies at bay doubting their independence, impartiality, and neutrality. The states also use control over humanitarian aid access as a strategy to weaken the rebel controlled territories.  These restrictive measures may consist of regulation of movement, blockades, penalization, and arrests of relief staff, and various bureaucratic strategies for restricting access, like preventing aid workers from entering the country. Restrictions on access can take any dimension like denials or delays in processing travel permits, limitations on the number of staff, and arbitrary bureaucratic limitations on the passage of relief supplies. In the present case of Myanmar also, its leader Aung San Suu Kyi’s office accused aid workers of helping "terrorists," a claim that prompted fears for the safety of aid workers. Myanmar authorities have also denied international staff access by holding up visa approvals.

Not only the States, various rebel and militia groups have also been responsible for obstructing relief efforts. Their tactics range from harassing checkpoints to outright denials of access. In some cases, aid organizations themselves have been targeted for killing, attacks on relief convoys, looting of supplies, and even the killing of relief personnel. Irrespective of from where restrictions on access have occurred, it leads to thousands of deaths from malnutrition and disease, and as these numbers increase world over, it is a serious concern for the humanitarian world.  

These challenges have increased manifold, as most of the present day conflicts like one in Myanmar are not traditional international armed conflicts, where international law provisions offer access as a matter of right for humanitarian agencies. If international law does not give a cogent answer on the right of access to aid agencies in Rakhine State, is Myanmar Government justified in its action? 

Sanctity of Humanitarian Aid under International Law

International humanitarian law (IHL) provides legal sanctity to the work of humanitarian agencies in supporting governments for fulfilling their obligations to protect civilians when states are unable to do it. The Fourth Geneva Convention of 1949 through its articles 55 and 81, and article 70 of the Additional Protocol I to the Geneva Conventions have given the states a duty to provide humanitarian aid to the civilian population under their control. This includes non-nationals, whether free or detained and the people of occupied territories of the adverse party. Further, if states are unable to do so, they are bound to accept the offer of third parties like impartial aid agencies to provide the required support.

At the same time in cases of internal conflicts (non-international armed conflicts as well as in other internal disturbances, like in the present Myanmar’s case) International law, does not give aid agencies any unfettered rights to reach out to the civilians. Right to access in such situations are subjected to the consent of state parties and scrutiny by them under Article 70 of Additional Protocol I, Article 18 of Additional Protocol II, and Articles 23 & 59 of Geneva Convention IV. Such a liberty of states to control the movements of aid agencies inside their boundaries is primarily because in cases of conflicts of non-international nature States doesn't want unnecessary international attention unless they decide so.

However, these restriction based upon the sovereign authority of the state is not absolute. As per the ICRC Commentaries to the Geneva Conventions, this consent requirement does not give unfettered discretion to allow or not to allow relief action. According to the Commentaries, if the humanitarian organization is impartial and neutral, then denial of relief action would amount to a violation of the rule prohibiting starvation of civilians as a method of combat. Further states have the primary responsibility to protect and ensure their basic need for survival of the civilians under Articles 55-56 of Geneva Convention IV. States are required to permit and facilitate the free passage of relief supplies and personnel and to guarantee their protection under Articles 23, 30 & 59 of Geneva Convention IV and Articles 70-71 of Additional Protocol I, and Art.18 of Additional Protocol II. There are also other international human rights documents, which provides for the right to freedom for movement for all, including for humanitarian personnel under Article 13 of Universal Declaration of Human Rights (UDHR) and Article 12 of International Covenant on Civil and Political Rights (ICCPR). Further, individual’s rights to survival and development including the right to food, medical treatment, and shelter are given under Article 25 of UDHR.

Further, if the restrictions on humanitarian access results in the deprivation of basic necessities, the attacks on relief organizations, and the destruction of sources for survival contribute to violations of various international norms especially it may constitute Grave Breaches under IHL and crimes under the International Criminal Law especially the International Criminal Court’s Rome Statute. Following are the provisions of IHL and Rome Statute, which penalize the restriction of humanitarian aid.

Grave Breaches Under IHL

Under Articles 50, 51, 130,147 respectively of the four Geneva Conventions provides for willfully causing great suffering torture or inhuman treatment as grave breaches for which the perpetrator can be prosecuted. Denial of aid to a starving civilian population during a conflict situation may amount to same.

Crimes under International Criminal Law

  1. Genocide

Genocide is an act of  ‘killing members of the group with a Intend to destroy in part or as a whole’. It is also committed by causing death by withholding aid. Denial of aid may also cause ‘serious bodily or mental harm.' The same can also be characterized as deliberately inflicting on the group conditions of life calculated to bring about death through deprivation of food and medical supplies.  [The Rome Statute Art. 6 and the interpretation of Art.6(a) in Elements of Crime]

  1. b) Crime Against Humanity
  • Murder can be interchangeable with caused death due to the deprivation of access to food and medicines as per the interpretation of Elements of Crime. (The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Extermination can include ‘mass killing by inflicting conditions of life calculated to bring about the destruction of part of a population, both direct and indirect including one caused by the deprivation of access to food and medicines [The Rome Statute Art. 7 and interpretation of Art.7(1)(b) of Elements of Crime]
  • Torture- intentional infliction of severe pain and suffering, whether physical or mental, in custody or under the control of the accused. This can be applied in situations where the aid and support are denied to a group who is under the party's control. [The Rome Statute Art. 7 (2)(e)].
  • Persecution – is defined as ‘intentional and severe deprivation of fundamental rights which includes deprivation of access to food, water, medicine and other elements of survival [The Rome Statute Art. 7 (2)(g) and Art. 23 GC IV, Arts. 5-6 ICCPR]
  • Other Inhuman Acts- 'intentionally causing great suffering, or serious injury to body or to the mental health. This can be applied in situations where the aid and support is denied to a group who is under the party's control. [The Rome Statute Art. 7 (1)(k)].
  1. C) War Crimes-

During international armed conflicts

 Intentionally starving of civilians during international armed conflict (IAC) as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies. [The Rome Statute Art. 8 (2)(b)(xxv)].

  • During IAC Willful killing [The Rome Statute and Elements of Crime Art. 8 (2)(a)(i)] and Torture and inhuman treatment (IAC)- [The Rome Statute and Elements of Crime Art. 8 (2)(a)(ii)-1(i)] and

During non- international armed conflicts

  • Violence to life and person - [The Rome Statute and Elements of Crime Art. 8 (2)(c)(i)]
  • Intentionally directing attacks - against buildings, materials, medical units and transport, and personnel using the distinctive emblems. [The Rome Statute and Elements of Crime Art. 8 (2)(e)(i)]
  • Intentionally directing attacks - against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peace keeping missions under UN Charter. [The Rome Statute and Art. 8 (2)(e)(ii)-(iii)]
  • Pillaging a town or place - destroying or seizing the property of an adversary unless such destruction or seizure is demanded by military necessity, which includes food sources and supplies. [The Rome Statute and Art. 8 (2)(e)(xii)]

Conclusion

Hence actions including the present Myanmar governments decision to block aid in the conflict affected areas in Myanmar could amount to violations which would attract penal action under the International law. Given the nature of attack and atrocities happening against an ethnic group, the chances of the commission of a crime of genocide weigh more in the present case, with individual counts of murder, extermination, and persecution. It is high time that other major nations to intervene and re-establish humanitarian aid in the affected area and further limit such atrocities being committed.

Professor Sanoj Rajan is the ICCR India Chair Visiting Professor at CUHK Faculty of Law. He is also an Affiliate Expert with Harvard Humanitarian Initiative at Harvard University, Massachusetts, USA and an honorary Visiting Professor for the International Criminal Justice program offered by the International Christian University at Kinshasa, Congo. Before joining CUHK he was Professor and Dean at the School of Law, Ansal University, India. His other present engagements include the Founding Governance Board member for Statelessness Network Asia Pacific (SNAP), visiting faculty for International Law at Foreign Service Institute under Ministry of External Affairs, Government of India and Indian Society of International Law, New Delhi.

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