Increasing numbers of territories around the world are falling outside the monopoly of the legitimate State. And the “zone of legitimate humanitarian applicability” is shrinking accordingly. The two authors build their article around this notion, and explain how, in the case of the conflicts in Ukraine and Gaza, this growing reality is dangerously paralysing the action of humanitarian actors.
International humanitarian law (IHL) sets the rules that apply in the event of armed conflict and serves as a benchmark for players providing assistance to civilian populations caught up in war. These players have developed their operational mandate based on the humanitarian principles that come from this legal framework to guarantee that neutral, impartial and independent assistance is provided. They have also done so to guard against any political exploitation that could be detrimental to the civilian populations and that would call into question this legal and ethical framework.
The Dunantist origins of these “without borders” dynamics form the basis from which the legal and operational spaces are structured to varying degrees of effectiveness. On the other hand, the third dimension – that of the political space – has always challenged what could be called the “zone of legitimate humanitarian applicability”. This is especially the case when delivering humanitarian aid in zones not under the control of States.
Indeed, the search for this legitimate space requires a consensus – getting the legal, political and operational layers to dovetail – around a protected, unconditional humanitarian zone. To achieve this, the only frame of reference used is the civilian population’s level of exposure to a critical situation. Yet from time immemorial, interaction between the three spaces has needed adjustments to be made, whether by means of legal amendments (additional protocols to the Geneva Conventions, case law, and so on), or by seeking to reach an agreement with the warring parties on creating a safe zone where the injured can be treated, or by galvanising public opinion to engage in a power struggle that can cross borders. This quest for a zone of legitimate humanitarian intervention has always gone hand to hand with developments in the humanitarian sector.
One of the main issues that arises is finding out whether humanitarian work can remain legitimate, particularly in areas that are not State-controlled, to deliver its mandate wherever there is need, and whether the IHL legal framework is enough to assert this legitimacy.
“One of the main issues that arises is finding out whether humanitarian work can remain legitimate, particularly in areas that are not State-controlled, to deliver its mandate wherever there is need.”
We will endeavour to answer the question using concrete illustrations from the field and by highlighting three aspects: the exploitation of humanitarian aid and political use of it, the impact that territorial control has on aid delivery, and finally the consequences that reappraising the multilateral system has on maintaining humanitarian principles.
The current major crises – the Russia-Ukraine conflict, on the one hand, and the war waged by Israel in the Occupied Palestinian Territories, on the other – are particularly illuminating examples of the complex nature of maintaining this zone of legitimate humanitarian applicability when working in areas controlled by players not recognised by the international community. Première Urgence Internationale (PUI) operates in both regions: in Ukraine since 2014 in Ukraine and in the Occupied Palestinian Territories since 2002.[1]And more specifically since 2009 in the Gaza Strip. This experience helps us carry out longitudinal analyses and thereby identify real changes in terms of approaches used by the various players and stakeholders at the root of the paralysing limitations placed on humanitarian work that we highlight in this article.
The exploitation and politicisation of aid
In theory, only the humanitarian needs identified and assessed in line with the standards that define a level of vulnerability should direct this quest for appropriate operational positioning. But the task is significantly complicated by a rising number of overlapping constraints interfering with these intervention rationales to the point of preventing aid workers from exercising their mandate.
In the Ukrainian context, PUI has managed to develop, since 2014, an effective way of meeting the needs of the conflict-hit populations, both in the areas controlled by the Ukrainian government and in those controlled by the de facto authorities in the east of the country. Such an approach makes sense when seen from the angle of actual needs and respect for humanitarian principles.[2]Commission européenne, Principes humanitaires de l’Union européenne (Consensus européen sur l’aide humanitaire), https://civil-protection-humanitarian-aid.ec.europa.eu/who/european-consensus_fr Yet it has had to contend with an ongoing challenge, at times meaning that PUI is faced with totally contradictory orders. Specifically, working in Non-Governmental Controlled Areas (NGCA) left our organisation open to criticism for providing support in “enemy” zones and left it liable to losing its authorisations to work on the Ukrainian side. This also undermined the organisation’s operational capacity across the whole country.
Up to 2015, the pressure was latent, but relatively restrained. Yet the situation then changed when the de facto authorities in the Luhansk and Donetsk regions required aid workers operating in zones under their control to recognise these areas as fully-fledged State authorities. Humanitarian organisations therefore found themselves in an inextricable dilemma in many respects.
“The de facto authorities in the Luhansk and Donetsk regions required aid workers operating in zones under their control to recognise these areas as fully-fledged State authorities.”
In fact, non-governmental organisations (NGOs) simply do not have the power or legal legitimacy to offer this sort of recognition, which is the sole prerogative of States under international law. The authorities in question were first and foremost looking to have a symbolic effect, but in terms of pressure and impeding operational capacity, the impact was all too real as a failure to comply with the order would lead to operations being suspended.
The impacted NGOs obviously joined forces to adopt a shared stance on the impossibility of providing this sort of recognition. Yet subsequent strategies did diverge, given the structural realities of each organisation and the estimated clout of their portfolios of initiatives. While PUI temporarily suspended operations, other humanitarian organisations, such as Médecins Sans Frontières (MSF), opted to continue their work, even though it meant running the risk of being kicked out of the region by military force. This actually happened, with MSF subsequently using this lever to run an advocacy campaign mobilising the international community. MSF then drew on the impact of this to once again gain access.[3]Médecins Sans Frontières, Ukraine : la cessation immédiate des activités de MSF à Donetsk aura des conséquences dramatiques pour des milliers de personnes, 23 octobre 2014, … Continue reading As PUI did not enjoy this level of influence, it could not take such a risk, unless it was willing to definitively lose access to these regions and therefore its capacity to respond to needs. The adjustment therefore involved accepting this temporary suspension and seeking to reach a compromise with the NGCA’s de facto authorities. The situation was made even more complex as the option of reorganising operational strategy by relocating initiatives solely to the part of Ukraine under the Ukrainian government’s control was off the table.
Beyond matters of principle in terms of balancing out assistance for all the conflict-hit areas, the European Union – which was funding some of our projects in Ukraine – required the funding to be solely spent on initiatives in the self-declared autonomous regions.[4]It is also interesting to note that DG ECHO’s position – Directorate-General for European Civil Protection and Humanitarian Aid Operations – has significantly evolved since 2022, with a growing … Continue reading A compromise was finally reached by developing operational delivery partnerships with regional players while maintaining PUI teams in the area to monitor the work being done. So conflict victim services were able to resume after a pause of a few weeks and our organisation was able to keep a presence and operational capacity in these regions. Indeed, they proved particularly useful when the scale of the conflict changed after 24 February 2022 and the Russian army’s offensive in Ukraine.
In just a few hours, we went from five million people directly impacted by the conflict in eastern Ukraine to forty-four million people across the country and in neighbouring countries. Consequently, responding to the humanitarian emergency meant being able to fulfil four types of mission:
– Providing support to civilians caught up in the hostilities to deliver a minimum level of access to basic services, following the shifting frontlines.
– Providing access to basic services for internally displaced people in areas less affected by the fighting, particularly in the west of the country.
– Providing an equivalent service for populations remaining in, or displaced into, areas under Russian control.
– Supporting refugees who had left Ukraine for neighbouring countries.
Over the past two and a half years, these “humanitarian hotspots” have continued to shift as the warring parties lose then take back control of different areas. Yet the reality on the ground prompts us to think more about the different levels of control that a warring party may exercise and their impact on the humanitarian space.
Overall control versus de facto control
Talking about de facto authority, as we have just done, brings us back to two major issues. The first issue is that there is still no consensus within the international community, and specifically between the United Nations (UN) Member States, about the classification of parties engaged in armed conflict. The second issue comes from the fact that anti-terrorism laws do not allow us to see non-State armed groups as players with whom negotiations can be held, at least from the viewpoint of States, even though IHL applies, in theory, to all parties involved in a conflict. Cooperation between NGOs and non-State armed groups to negotiate access to civilian populations is classed as illegal and is even sanctioned. The Gaza Strip epitomises this complex issue: it is about reaching a balance between meeting the most critical humanitarian needs and complying with a political framework that fights terrorism.
PUI had already been working in the West Bank since 2002 when it launched operations in the Gaza Strip in 2009 when Israel’s “Cast Lead” military operation led to war breaking out.[5]“Operation Cast Lead” ran from 27 December 2008 until 18 January 2009, and caused 1,400 deaths, mainly civilians in Gaza, and 13 Israeli fatalities. Camille Drouet, « Troisième guerre à Gaza … Continue reading PUI aimed to supply the civilian population with water, hygiene products and essentials and to provide different healthcare facilities with medical supplies. PUI’s office in Gaza opened in a volatile political context, both in the Occupied Palestinian Territories and worldwide.
Having obtained a majority in the 2006 parliamentary elections, Hamas joined the Palestinian Authority government and signed an agreement to create a government of national unity with Fatah in March 2007. Internationally, the Quartet on the Middle East closely monitored the talks between Hamas and Fatah as the formation of a government of national unity would be a pivotal phase in resolving the Israel-Palestine conflict and for the phases laid down in the 2003 Roadmap for Peace.[6]The Quartet comprised the US, the Russian Federation, the European Union and the UN. Conseil de Sécurité des Nations unies, Feuille de route du Quatuor pour le Moyen-Orient, 7 mai 2003, … Continue reading This agreement was very quickly broken when Hamas took control of the Gaza Strip in June 2007. President Mahmoud Abbas dissolved the government of national unity and immediately declared a state of emergency.[7]The New Humanitarian, “Gaza humanitarian timeline since 2005”, 1 august 2010, https://www.thenewhumanitarian.org/news/2010/08/01/gaza-humanitarian-timeline-2005 On the Israeli side, Ehud Olmert’s government declared an air, land and maritime blockade of the Gaza Strip.
The PUI teams were working in this complex and turbulent political configuration. The Palestinian Authority, headquartered in the West Bank, was supposed to have overall control of the Occupied Palestinian Territories. Yet this overall control was, in practice, blocked by Israel. Meanwhile, Hamas had de facto control within the Gaza Strip. Since 2007, the two authorities have operated in parallel, with Hamas creating its own interior, health, social action, tourism and other ministries, while the Palestinian Authority has continued to exercise its power over the whole territory,[8]Officially, the Palestinian Authority administers the Gaza Strip and the West Bank, including East Jerusalem. The territory is in fact fragmented, with Hamas being in de facto control of the Gaza … Continue reading even though the territory is fragmented. The third factor was Israel’s actual control from outside. The 2007 blockade stopped goods and raw materials from entering Gaza.[9]Le Monde avec AFP et Reuters, « Israël décrète un blocus partiel sur Gaza, où le Hamas s’organise », 18 juin 2007, … Continue reading This was followed both by measures to limit Palestinians leaving Gaza – they were only allowed to leave in special circumstances, such as medical emergencies – and by controls on non-Palestinians entering at the Erez Crossing at the northern end of the Gaza Strip. Israel created restricted access areas along the land border separating it from the Gaza Strip – a one-kilometre-wide buffer zone – and fishing restrictions were imposed on Gaza’s fishermen. When war broke out in Gaza in December 2008, the civilian population was already significantly impacted by all the restrictions caused by the blockade. Over two million people in Gaza needed humanitarian assistance. The zone of legitimate humanitarian applicability became irrefutable from an operational perspective.
The successive wars in the Gaza Strip in 2008, 2012, 2014, 2021 and 2023 have proved devastating for the civilian population. Farmland, healthcare facilities, housing, and water and sanitation systems have been regularly and seriously damaged and even destroyed, not to mention the level of psychological trauma experienced by several generations. Until 7 October 2023, operating in Gaza meant being able to undertake long-term initiatives[10]Until 7 October 2023, PUI ran several programmes in Gaza focusing on food security, support for farming and fishing, and a programme to protect and develop Palestinian cultural and archaeological … Continue reading to mitigate the damaging effect of the blockade on the civilian population, while having the flexibility to switch to emergency interventions when a new war flared up once again.
“Following the Hamas attacks in Israel, the war has reached its peak in the Gaza Strip, while the political environment seems more impenetrable than ever.”
Following the Hamas attacks in Israel, the war has reached its peak in the Gaza Strip, while the political environment seems more impenetrable than ever. Israel’s de facto control from outside has morphed, over the course of the Israel Defence Forces’ (IDF) military ground operations, into de facto internal control of large swathes of the Gaza Strip. This control will continue until the aim of totally eradicating Hamas’s members has been achieved. Over this period, and at the time of writing, ninety-seven people were still being held captive in Gaza, with sixty-three presumed to still be alive, according to the Israeli army, while over two million civilians are fighting to stay alive on a daily basis.
Whether there is overall or de facto control of a territory, this should not, in theory, have an impact on the zone of legitimate humanitarian applicability if the focus is on assessing needs and providing an impartial humanitarian response. Yet political configurations are certainly decisive in delivering aid to civilians, regardless of the seriousness of the situation.
Following the launch of its offensive in Ukraine on 24 February 2022, Russia held, in September of that same year, annexation referendums in four oblasts (regional administrative divisions) that it was occupying militarily. The UN adopted a resolution condemning this unilateral decision in October 2022.[11]Le Monde, « Les cartes de la guerre en Ukraine, depuis le début de l’invasion russe, en février 2022 », 28 juillet 2023, … Continue reading In practical terms, PUI’s operations, run via a local partner in Donetsk oblast up to then, switched from the local authorities’ de facto control to Russian control. In practice, the operational approach continued to be based on the same method of identifying the populations’ most urgent needs and supporting health facilities for primary care, yet the issue of the zone of legitimate humanitarian applicability shifted once again at a political level. Aid workers had to take on board new criteria governing access to vital services (for example, only holders of Russian passports were allowed access). This administrative change also had an impact on population movements. The region’s residents moved mainly to cities where the security situation was more stable. Risk analysis is carried out without international funders properly consulting each other. On the one hand, humanitarian organisations receive orders to only operate along the frontline and mainly on the Ukrainian side, and, on the other hand, they are free to carry out operations in more remote areas. These conditions vary depending on each organisation’s political agenda. And this prompts us to call into question today’s multilateral system and the role of humanitarian aid coordination that it is supposed to play.
Reassessing the multilateral system
Humanitarian aid coordination, usually undertaken by UN agencies,[12]And notably by the UN Office for the Coordination of Humanitarian Affairs (OCHA). cannot avoid these changes of configuration and the need to adjust to keep a minimum level of relevance and operational capacity in response to needs observed on the ground and the dynamic between stakeholders.
Ukrainian civil society quickly swung into action to meet the war victims’ most urgent needs, displaying an effective and exemplary brand of pragmatism. The initiatives that PUI had implemented before 24 February 2022 mainly involved running first-aid posts along the “contact line” separating the zones controlled by the Ukrainian government and those controlled by the de facto authorities at the four crossing points located in Donetsk oblast that civilians used daily to commute for family or administrative reasons. In addition, support was provided for healthcare facilities on both sides of the line. A coupon system gave the region’s population free access to medical treatment thanks to partnerships with pharmacies in different areas. From 24 February 2022, the “contact line” was replaced with several active and shifting front lines and commuter flows were replaced with population movements towards cities. On the Ukrainian side, national players reorganised around municipal hubs, joining forces with civilian volunteers who swiftly set up associations to structure their emergency response. Support from international organisations helped raise funds and deliver a broader response. So Ukraine’s institutions quickly took back leadership of the humanitarian response, which raises the issue of the role played by international players. These geographical focal points have particularities because of each hub’s ability to coordinate its own work but also because of circumstances that vary greatly depending on whether the location is Lviv, Dnipro or Kharkiv. The standard coordination rationale among humanitarian players is about organising aid based on clusters: healthcare, food security, water, sanitation and hygiene (WASH), shelter, etc., with decision-making centralised in the capital city. Yet this approach is called into question in Ukraine, where the response has to be tailored to each specific configuration. From an operational perspective, this reappraisal of the legitimacy of the zone of humanitarian applicability invites us to instead consider “area-based coordination”: a decentralised, multisector rationale. It is about supporting the existing Ukrainian system and further promoting leadership from national players in the response, rather than using a propping-up method based on a rationale that is unsuited to developments in the conflict.
UN coordination is sadly non-existent in the Russian-controlled areas. International players have organised themselves to try to limit the risks of duplicating aid in the different areas and are trying to maintain an operational framework that guarantees respect for humanitarian principles as much as possible, such as the principle of non-conditionality of aid. This lack of institutional coordination makes space for bilateral initiatives in humanitarian diplomacy. This calls into question the appropriateness of today’s multilateral framework. Indeed, some States that are able to talk to both parties in the conflict are suggesting mediation, ranging from talks to end the conflict to the way in which aid is rolled out in NGCA zones. So international aid organisations face new adjustments that could, once again, impact their work on the ground.
As regards the Gaza Strip, coordination work carried out by the UN Office for the Coordination of Humanitarian Affairs (OCHA) has always been vital in pooling initiatives from humanitarian organisations, but also in protecting the humanitarian space from certain constraints. Indeed, the high number of contacts and decision-making levels in each authority – depending on whether it has overall or de facto control – makes aid delivery relatively complex. For instance, when Hamas asked the humanitarian organisations working in Gaza to pay tax as soon as it gained power in 2007, only dialogue with OCHA helped the relevant organisations speak with one voice to reiterate that tax was already being paid to the Palestinian Authority and that this double taxation would simply bring work to a halt.
Since 8 October 2023, the IDF’s intense, constant bombing of Gaza has been a major barrier to humanitarian work. No areas have been spared, and NGOs are taking considerable risks by fulfilling their humanitarian mandate. Prior to 8 October, the Gazan police force ensured order in Gaza and reported to the de facto authority’s central administration. The start of the war and Israel’s targeting of Hamas’ leaders have meant that security management in Gaza is now utterly chaotic. The central administration no longer exists. Militia have formed at a community level, sometimes for each district, leading to a fragmentation of security management across the Gaza Strip. Humanitarian convoys entering Gaza via the Rafah Crossing were previously authorised by the Egyptian, Israeli and then the de facto authorities inside Gaza. But now, once a convoy has gone through the crossing, it is left to fend for itself for security and convoys regularly run the risk of being looted and attacked by crowds. Humanitarian aid trucks coordinated by NGOs and the UN remain stuck at the Rafah Crossing on the Egyptian border for several months, while private convoys cross the border more arbitrarily.
Air strikes have not stopped since October 2023. First, Israel designated Al-Mawasi as a safe zone, and then expanded it to include some of Khan Yunis and the eastern section of Deir El-Balah. Aid workers in this area were, in theory, exempt from making authorisation requests to the Israeli authorities to move around and distribute aid here without the risk of being bombed. Each movement outside this zone was supposed to be notified using an IT platform co-managed with OCHA to pass on GPS coordinates and the planned route. Receipt of each request was acknowledged. Yet in practice this humanitarian zone has been bombed many times and no acknowledgements of receipt are given any more. Each movement is now undertaken based on the organisation’s assessment and its own risk analysis.
Another factor is decisive in what happens next: Israel’s position regarding the UN international system. The Knesset (Israeli parliament) is currently considering a bill to include the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) on a list of terrorist organisations. UNRWA is one of the main providers of humanitarian aid in Gaza. This is the first time that a UN Member State has ever taken such a step. And decisions taken by the International Court of Justice show a new balance of power between legal and political frameworks – this time with a criminal perspective – that will have a major impact on the way in which today’s context develops.
“The legal and ethical framework for humanitarian intervention has never faced such a difficult challenge before – paradoxically at a time when there have never been so many players claiming to do humanitarian work.”
In conclusion, the legal and ethical framework for humanitarian intervention has never faced such a difficult challenge before – paradoxically at a time when there have never been so many players claiming to do humanitarian work. State exploitation of this for soft power and use of humanitarian principles as rhetoric have never been so strong among the parties of a conflict, whether States or armed groups. The quest for a zone of legitimate humanitarian applicability is reflected in an intensifying power struggle between its aspirants and is creating major dissonance in application of it.
A focus on needs assessment and civilian protection is not just an ethical issue but a moral one too. This issue should not be disconnected from the accountability of State players and non-State players in guaranteeing and respecting this legitimate humanitarian space. Representing a humanitarian organisation in civil society, we also feel that it is important to emphasise the role that a fourth dimension can play in this overall configuration: public opinion. When barriers to humanitarian work cause total aid paralysis on the ground, personal testimony becomes the last possible resort.
Through this article, we would like to pay tribute to our teams on the ground in Palestine and Ukraine. They show dedication and courage while risking their own lives to help the civilian population. PUI’s work would not be possible without them. We would also like to thank Jehad Abu Hassan, Nicolas Ben-Oliel and Benjamin Gaudin for their valuable contributions.
Translated from the French by Gillian Eaton
