Abstract
In terms of human suffering, few military operations have rivaled sieges and comparably harsh legal regimes have governed them. At a time when legal vindication of humanitarian interests in armed conflict is ascendant, conventional accounts of the law of war governing humanitarian relief may seem out of step, plagued with glaring gaps in humanitarian logic. In 2016, Oxford University professors published a United Nations-commissioned legal study—the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The Guidance contends that during armed conflict international law prohibits belligerents from arbitrarily denying offers of humanitarian relief to civilian populations. It asserts belligerents must accept and accommodate neutral offers of relief or offer reasoned and legitimate justifications for denying such offers. While not immediately apparent from relevant treaty text or from conventional accounts of that text, the Guidance contends that textual tension, drafting history, and subsequent practice—each, in certain contexts, an accepted method of treaty interpretation—support the claimed prohibition.
This Article argues that on careful examination, the textual interpretation, drafting history, and subsequent practice offered by the Guidance, do not support its central claim. Simple textual assessment, a fuller account of negotiating history, and a more discerning survey of subsequent practice undercut the legal claims of the Guidance. And while admirably attentive to the demands of humanity, the Guidance neglects important military considerations in its account of the law. Military doctrine and experience, especially with siege operations, explain apparent humanitarian gaps in the law and offer a stronger textual and historical account of the law’s alleged shortcomings. The interpretive approach of the Guidance underappreciates how experience with siege, particularly the demand to maintain isolation, informed the balance struck between humanity and military necessity by the States that codified the law of war applicable to relief actions. While from a humanitarian perspective, its conclusions are commendable and even supportable, the Guidance effects through cunning interpretation, amendments better left to the careful work of diplomacy and international legislation.
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