CYIL vol. 12 (2021)

CYIL 12 (2021) TOWARD STRENGTHENING ACCOUNTABILITY FOR CRIMES AGAINST CHILDREN … developmental, cultural, or social barriers, children might also have problems to clearly articulate their needs. 101 There are no international legal definitions of the notions of “humanitarian access” or “humanitarian assistance.” 102 The MRM Field Manual defines the denial of humanitarian access for children as an intentional deprivation of or impediment to the passage of humanitarian assistance indispensable to children’s survival, by the parties to the conflict, including willfully impeding relief supplies as provided for under the Geneva Conventions; and significant impediments to the ability of humanitarian or other relevant actors to access and assist affected children, in situations of armed conflict. The denial should be considered in terms of children’s access to assistance as well as humanitarian agencies’ ability to access vulnerable populations, including children . 103 States maintain the primary responsibility to ensure the basic needs of the civilian population within their territories and under their control. However, if they are unable to meet them, humanitarian organizations have the “right of humanitarian initiative.” It would be unlawful for a state to refuse the access if the refusal was arbitrary or capricious. In the situations that might lead to violations of certain fundamental right, states cannot refuse or withhold their consent to grant access. 104 One of the most devastating consequences of the denial of humanitarian access is the starvation of civilians which, as a method of warfare, is prohibited both in international and non-international conflict. 105 The prohibition of collective punishment may be violated if the consent is withheld to punish the population or with the intent to discriminate against a particular group perceived as favoring the enemy. 106 The key IHL provision regulating consent stipulates that if the civilian population is not adequately provided with supplies to secure basic needs, humanitarian and impartial relief actions will be conducted without any adverse distinction subject to the agreement to the parties concerned. In the distribution of relief consignment, priority will be given to privileged categories, including children. 107 There is no IHRL treaty provision that would explicitly deal with the issue of the denial of humanitarian access. However, withholding the consent to humanitarian assistance might violate other fundamental human rights and freedoms, including the right to life and the prohibition of torture and cruel, inhuman, and degrading treatment. 108 The Rome Statute does not address the denial of humanitarian access, but defines for the first time as a war crime “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.” 109 This provision is only 101 Fatima, Protecting Children , pp. 384–386. 102 Ibid. , p. 380. 103 UNICEF, Field Manual, p. 10. 104 Fatima, Protecting Children , p. 378. 105 Additional Protocol I, Article 54(1); Additional Protocol II, Article 14. 106 Fatima, Protecting Children pp. 392–393. 107 Additional Protocol I, Article 70. 108 Fatima, Protecting Children , pp. 414–416. 109 Rome Statute, Article 8(2)(b)(xxv).

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