5th Report - Protection not permission: The UK’s role in upholding international humanitarian law and supporting the safe delivery of humanitarian aid

Numbers of aid worker deaths are rising year on year and the situations where access to aid is deliberately impeded are also increasing. This violates the purpose of IHL: to protect civilians in a time of war. We see growing examples of where IHL is ignored or used to justify the restrictions to aid delivery. This has to stop. Furthermore, we have concerns that there is a trend of breaches of IHL being ‘traded off’ by implicated parties who can be seen to justify breaking IHL as a result of the other party or parties doing the same. This apparent ‘race to the bottom’ is extremely worrying and demonstrably contrary to the spirit of IHL which sets high standards to ensure citizens and humanitarian workers are appropriately protected in conflict zones. The short-term impacts of IHL trade-offs by belligerents is having stark and deadly consequences. (Conclusion, Paragraph 7)

We agree with the view of the ICRC that IHL is clear and comprehensive. It represents both a body of law that is robust and universal in its coverage, and a spirit by which warring parties must place the protection of civilians at the heart of their operational planning. However, there are serious deficiencies in the enforcement mechanisms and the ability of the international community to hold states and non-state actors accountable for violations of that law and spirit. As noted above, there is also an apparent willingness from non-state armed groups and UN Member States to ‘trade off’ the IHL breaches of others to justify further military action. This presents a threat to their very existence. These attitudes need exposing and publicly condemning by world leaders to prevent established and tested legal frameworks from being irrevocably damaged. (Conclusion, Paragraph 9)

We recommend that the UK Government takes the lead in efforts to reach a consensus on the use of autonomous weapon systems and artificial intelligence on the battlefield and the creation of an international instrument on their use. (Recommendation, Paragraph 10) 48

There is encouraging collaboration by a select few UN Member States that are promoting adherence to IHL and, in particular, the protection of aid workers. Yet there is a lack of comprehensive leadership across all aspects of IHL by a single Member State and a willingness to expose and publicly condemn flagrant abuses of IHL. This is challenging when traditional allies or leading world powers may be involved, but inconsistent application of IHL will be to its long-term detriment if IHL-conscious nations don’t make the appropriate interventions. The UK is well positioned to lead this endeavour to uphold IHL and the particular obligations in relation to humanitarian access and the protection of aid workers. This is a significant opportunity for the UK in a 0.3% foreign aid budget world, given that sharing expertise costs very little. In fact, it is one of the few areas where aid budget cuts need not have an impact and the UK could maintain and enhance its position as a world leader. (Conclusion, Paragraph 13)

The UK armed forces have a strong and proud history of supporting IHL. They have experience of operating within the spirit and letter of IHL in extremely challenging environments, and of complying with accountability mechanisms when there have been allegations against them. At a time of increasing global tensions and rising military spending, the world needs examples to follow. (Conclusion, Paragraph 17)

We recommend that the Government prioritises military-to-military training on IHL in line with the increase in defence spending. It should make full use of the range of resources it has at its disposal to support foreign militaries to understand not only their obligations under IHL, but the benefit of adherence to IHL for their own populations in a time of conflict. (Recommendation, Paragraph 18)

The FCDO appears to be repeating the same approaches to overcoming access challenges whilst expecting different results. Successful records of traditional forms of public diplomacy in promoting unimpeded access to aid are patchy at best. Polarisation within bodies such as the UN Security Council limit the opportunities to overcome barriers to aid delivery. A radically new approach is needed. (Conclusion, Paragraph 23)

We recommend that the UK explores creative forms of diplomacy with likeminded states that can bring maximum pressure and combined diplomatic capability to solving specific access issues. As part of this initiative the diplomatic capacity and influence of the FCDO needs to be evaluated and invested in where needed. (Recommendation, Paragraph 24)

The UK is well placed to ensure the voice of local organisations is heard in negotiations over access for humanitarian aid. This input is vital for effective and sustainable aid delivery as well as maximising the safety of 49 those delivering it. Moreover, the UK is well positioned to make good its commitments to localisation and to realise the benefits that this can bring. (Conclusion, Paragraph 26)

We applaud the work of the current and previous Governments in ensuring that the safe delivery of aid is not jeopardised by most of the UK’s own legislation. However, lack of clarity around the UK’s anti-terrorism legislation has had a chilling effect on those delivering UK aid and risks limiting its delivery where the implementation of sanction exemptions is not clear. (Conclusion, Paragraph 28)

We encourage the Government to consider a standing exemption for relevant humanitarian organisations to ensure that they do not risk liability for their legitimate dealings with sanctioned entities. In the meantime, the Office of Financial Sanctions Implementation (OFSI) must provide clearer guidance for the humanitarian sector on the interpretation of sanctions legislation. At the international level, the Government should facilitate consistent good practice with regard to creating humanitarian exemptions to sanctions regimes. (Recommendation, Paragraph 29)

During an evidence session, the Minister was unclear about the extent of the application of approved approaches when it came to creative responses to the situation in Gaza. There are various mechanisms available at the international, regional and domestic levels for holding states and non-state actors to account for alleged breaches of IHL—breaches which include the killings of aid workers and unlawful blockades of humanitarian aid and assistance. The UK has an important role to play in supporting, funding and participating in these mechanisms. (Conclusion, Paragraph 32)

At the international level, the International Criminal Court provides a forum for holding states and individuals, respectively, accountable for breaches of IHL. (Conclusion, Paragraph 35)

At a time when the legitimacy and impartiality of international courts is being questioned by some, the UK must stand firm in support of these important mechanisms for accountability to prevent impunity for serious violations of IHL. (Recommendation, Paragraph 36)

We welcome the times that the Government has made a stand on the likely breaches of IHL that have reduced access of populations to aid and/or have failed to protect those delivering aid. We also welcome the more general calls for the protection of aid workers. However, the lack of consistency across conflict types and geographies, arguably depending on the participants is startling, greater care needs to be taken to ensure that the UK’s actions and rhetoric around suspected breaches of IHL cannot be construed as being anything other than even handed—protecting allies 50 at the expense of unconditional support for IHL is unacceptable. Such actions would set a poor example to other states and risk undermining the universality of law designed to protect us all. (Conclusion, Paragraph 38)

As part of the UK’s leadership role, the Government must be ready to call out actions not only when a blatant breach of IHL has been ruled on by a court, but when the spirit of IHL is being eroded. This condemnation needs to extend to where an overly permissive interpretation of IHL has been taken and must happen in equal measure regardless of the offending party’s diplomatic relationship to the UK. Failure to do so undermines a system designed to keep all civilians safe and to impose limits on the horrors of war. (Recommendation, Paragraph 39)

The FCDO needs to be led by the law without fear or favour. In July 2024, the International Courts of Justice handed down its advisory opinion on the legality of Israel’s policies and practices in the Occupied Palestinian Territories. This advisory opinion sets out various obligations in respect of third states, including the obligation to ensure Israel complies with IHL. It is unacceptable that the Government has failed to issue a formal response nearly a year after the ruling was given. (Conclusion, Paragraph 40)

We urge the Government to issue a formal response to the ICJ’s opinion concerning Israel’s policies and practices in the Occupied Palestinian Territories, setting out how it is complying with the obligations on the UK as a third party. (Recommendation, Paragraph 41)

We recommend that the UK works with the other UN Member States represented on the ministerial group for the safety of humanitarian aid workers to call for a Special Session of the UNSC to discuss the problem of disregard of IHL in the delivery of aid. This session should focus on hearing from aid workers themselves, and from local organisations in particular, culminating in a declaration. In addition, the UK should push for the issue of humanitarian access to be included regularly in the annual UN Protection of Civilians Report. Finally, there should be an expectation that the UN Humanitarian Coordinator includes details of obstructions to the safe delivery of aid, including attacks on aid workers, as part of his regular reporting to the Security Council. However, we emphasise that this reporting should not be at the expense of energy and time being devoted to the ending of conflicts. (Recommendation, Paragraph 44)

We recommend that the FCDO works with international partners to establish an independent central repository of evidence of breaches of IHL relating to the delivery of aid and attacks on aid workers. For this to be successful, the Government should undertake a consultation exercise with international and local delivery organisations, as well as UN bodies and legal experts. (Recommendation, Paragraph 45) 51

We agree with the Government that it is preferable to prosecute suspected breaches of IHL within the jurisdiction where they occurred, but only where there are sufficient resources and guarantees of fair trials. There is more the UK could be doing to support these legal systems. (Conclusion, Paragraph 47)

We recommend that the UK works with other willing members of the Ministerial Group on the Safety of Humanitarian Workers to establish a roster of independent legal experts and expert investigators who can support the criminal investigations of suspected breaches of IHL. (Recommendation, Paragraph 48)

The preamble to the Statute of the International Criminal Court recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” At the domestic level, the UK must ensure that it can exercise universal jurisdiction over international crimes such as the killings of aid workers and the unlawful restrictions or prohibitions on humanitarian aid and assistance. (Conclusion, Paragraph 51)

We recommend an amendment to the Crime and Policing Bill, to amend the International Criminal Court Act 2001, to provide for universal jurisdiction. This would allow for suspected war criminals to be investigated and prosecuted in the UK irrespective of their nationality, residency status, or location. (Recommendation, Paragraph 52)

The UN has also established various investigative mechanisms in response to particular atrocities. Wherever possible, the UK should support, fund and participate in these mechanisms to assist with fact-finding, truth discovery, and the preservation of evidence of breaches of IHL. (Conclusion, Paragraph 55)

Specifically, we recommend that the UK makes better use of the good offices of the International Humanitarian Fact Finding Commission as part of its process of establishing whether IHL has been broken in specific cases. It should also be actively recommending these services to others. (Recommendation, Paragraph 56)

In addition to legal mechanisms, the Government must use its powers to make sanctions a tool for ensuring respect for IHL. The Sanctions and Anti-Money Laundering Act 2018 provides the Government with the power to make sanctions for the purpose of promoting compliance with IHL. (Conclusion, Paragraph 58)

The Government must use its power to sanction individuals in response to clear breaches of IHL, such as unlawful killings of aid workers and restrictions on humanitarian aid and assistance. To do this the Government 52 must make sure that the Sanctions Team is sufficiently resourced and that the evidence threshold is set appropriately. (Recommendation, Paragraph 59)

There is much more the Government could do to ensure that UK manufactured weapon components do not fall into the hands of those who may use them in attacks on aid workers and aid infrastructure. (Conclusion, Paragraph 61)

We recommend the Government a. Provide for interim measures to allow for the temporary freezing of licenses where there are credible allegations of IHL breaches, subject to full investigation and final determination; b. report findings of independent audits of arms exports to Parliament, including details of any incidents where British manufactured arms were used in suspected breaches of IHL; c. embed an assessment of impact on humanitarian assistance into the foreign policy interest’s criteria for export licences. : (Recommendation, Paragraph 62)

There is no legal requirement for companies in the UK to stop exporting arms when they are aware of a clear risk that their weapons could be used in suspected breaches of IHL–instead the legal obligations rest on the Government. It is time for this to be addressed. (Conclusion, Paragraph 63)

The Government should legislate to provide for binding due diligence requirements on arms manufacturers. The Government should also make use of existing powers under the International Criminal Court Act (2001) to prosecute directors of arms manufacturers for complicity in war crimes such as those relating to the targeting of aid workers and facilities. (Recommendation, Paragraph 64) Practical protection for aid workers at risk of IHL abuses

We recommend that the Government takes appropriate opportunities to commemorate the sacrifices of the hundreds of aid workers every year who pay the ultimate price in the service of others. This should include representation at the memorial service in Westminster Abbey, speeches coinciding with the UN Secretary General’s update on Resolution 2730 (2024), and when updating Parliament on the FCDO’s work. (Recommendation, Paragraph 67) 53

It has never been more dangerous to be a humanitarian aid worker. These workers put their lives on the line every day to protect others. Aid workers suffer direct intimidation and attacks in the field, as well as the impact of vicarious trauma through the processing of media. The disregard of aid worker safety by combatant parties is contrary to the spirit and letter of international humanitarian law. (Conclusion, Paragraph 69)

The safety of aid workers and aid delivery is further hampered by the spread of malicious disinformation online and in other forms of media. (Conclusion, Paragraph 71)

We recommend that the Government work closely with those delivering UK Official Development Assistance to identify appropriate responses to disinformation aimed at neutral implementing partners. This should include ensuring organisations such as the BBC World Service are adequately funded to fulfil their roles. (Recommendation, Paragraph 72)

While it is important that the UK’s aid, trade, defence and diplomacy objectives are coherent, there is a risk that overly-politicised humanitarian responses can make the safe delivery of UK-funded support difficult. (Conclusion, Paragraph 73)

It is vital that, where aid workers delivering UK Official Development Assistance are casualties, the Government is able to ascertain whether the employer was diligent in its duty of care responsibilities. (Conclusion, Paragraph 75)

Where incidents relate to employees of UK-registered NGOs, it is essential that the Charity Commission is adequately resourced, and has the necessary powers, to investigate whether relevant organisations were diligent in their statutory obligations regarding their employees. (Recommendation, Paragraph 76)

Constrained budgets and competition for funding may incentivise the over- promising of delivery by international NGOs at the risk of underfunding security risk management. This runs the risk of subjecting aid workers to unnecessary pressures, and of their welfare being overlooked. It is important that the mental health of these individuals and teams is compassionately and intentionally engaged with by their employers, with adequate funds being made available to provide support. (Conclusion, Paragraph 79)

Psychological support and wellbeing strategies need to be appropriate to the context and culture of the aid workers in question. Sufficient flexibility in funding must be built in to ensure that local organisations are supported in designing and implementing their own recovery strategies for their volunteers and employees. (Recommendation, Paragraph 80) 54

Beyond funding, the FCDO should explore how it might make its in- house security and mental health expertise, particularly at diplomatic mission level, accessible to local NGOs as requested as appropriate. (Recommendation, Paragraph 81)

Whilst it is always the perpetrator who is responsible for the harm caused to victims, there is more that donors and employers could do to mitigate the risks. Indeed, it is the moral responsibility of donors to do all they can to remove or mitigate the risks to aid workers. (Conclusion, Paragraph 85)

We recognise the impact that reducing Official Development Assistance from 0.5%-0.3% of gross national income will have on availability of funding for humanitarian relief. However, any defunding of costs associated with the security of aid workers would be a false economy. Proposals with higher security costs should not be prejudiced against. Rather, proposals with lower costs should prompt more questions. (Conclusion, Paragraph 86)

We recommend security risk management costs are decoupled from other programme costs. There should be a designated security risk management fund that organisations delivering UK Official Development Assistance can apply to in order to support their broader security requirements. These grants should be flexible to allow for the appropriate measures to be funded in any given situation. The application process should be accessible to local organisations delivering UK ODA, and they should be encouraged to apply directly with support being provided through UK Embassies wherever possible. International NGOs and consultants applying for work with local organisations must be able to demonstrate both the relevance of their grant to their local partners and the value for money of their being an intermediary. (Recommendation, Paragraph 87)

Where programme-specific security risk management costs are still built into programme budgets, these should be a distinct budget line rather than being part of administration costs. (Recommendation, Paragraph 88)

Approaches to negotiating contracts and funding arrangements, where local organisations will be delivering humanitarian aid, are not always fit for purpose. There are inadequate mechanisms to ensure that the security requirements of local organisations are fed through intermediaries to the FCDO. There is evidence of inflexibility in eligible items for funding. (Conclusion, Paragraph 93)

FCDO officials managing contracts where a significant amount of aid will be delivered by local organisations should aim for direct contact with the relevant local delivery organisation during the proposal agreement stage, regardless of who the contract is with. These conversations should seek to establish whether the organisation’s security concerns have been 55 adequately covered. Subsequent conversations during implementation and evaluation phases are also strongly recommended. (Recommendation, Paragraph 94)

The FCDO needs to make sure that insurance provided to aid workers by their employers covers legal advice and longer-term medical, including physiological support. The FCDO should work with insurance providers and delivery partners to ensure that appropriate and affordable packages of insurance are provided—including for local staff and volunteers, where possible. (Recommendation, Paragraph 96)

The relief and development sector continues to strive for value for money– maximising the essential aid to those who need it whilst keeping its staff safe. We have witnessed the strong collegiate working between security risk management professionals across the sector. However, the FCDO’s current approach to contracts does not go as far as it could to encourage the pooling of services that would allow more cost-effective security risk management. (Conclusion, Paragraph 98)

The security risk management fund we recommend should prioritise grants that catalyse the pooling of activities–ensuring the best value for money and maximum reach. For example, this could include funding for pooled Hazardous Environment Awareness Training, in-country NGO forums, shared access to security advisors, mental health first aid training, and so forth. (Recommendation, Paragraph 99) 56