The Gap Between Law and Practice: Humanitarian Assistance in Occupied Territories Affected by Disasters

Vivian Santander ^[1]

Ana Julia Viteri de Fortuny ^[2]

The Gap Between Law and Practice: Humanitarian Assistance in Occupied Territories Affected by Disasters.

In situations of military occupation, international humanitarian law establishes a clear legal framework, since the occupying power assumes responsibility for ensuring the welfare of the civilian population under its control. This includes guaranteeing access to food, medical care, and essential services, as well as allowing humanitarian organizations to deliver relief assistance. Yet, in practice, humanitarian access in occupied territories is frequently restricted, delayed, or politicized. From bureaucratic obstacles to security constraints and strategic manipulation of aid, the gap between legal obligations and operational reality remains significant. This raises an important question: if the law governing humanitarian assistance in occupied territories is relatively clear, why does humanitarian access remain so difficult in practice?

During a humanitarian crisis, civilians require far more than emergency medical care, food and water assistance. They need to regain a sense of safety, reconnect with missing or detained loved ones, restore stability in their daily lives, and pursue mechanisms of accountability that affirm their dignity and rights. Yet meeting these needs has become progressively more difficult. This is the case even as humanitarian budgets grow and the humanitarian system becomes increasingly professionalized. In practice, humanitarian assistance often depends on political negotiations, military authorization, access permissions, and constantly shifting frontlines. As a result, the gap between what affected populations reasonably expect from humanitarian action and what humanitarian actors are actually able to deliver continues to widen.

Under international law, each State bears the primary responsibility to ensure the basic needs and protection of its population at all times, both during armed conflict and in times of peace. In principle, humanitarian assistance should therefore be understood as subsidiary and complementary - a mechanism designed to support States in fulfilling their obligations under International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Within this framework, the doctrine of the Responsibility to Protect (R2P) provides that the international community may act to protect populations when a State is unwilling or unable to safeguard its own people.^[3] This doctrine also recognizes that States may request international assistance when their capacity to respond to crises is exceeded, without such assistance diminishing their primary obligations toward their population’s security and well-being.

The legal regime governing these situations is primarily established in the Fourth Geneva Convention and the Hague Regulations of 1907. These instruments establish that the occupying power must ensure, to the fullest extent of the means available to it, the provision of essential goods and services necessary for the survival and well-being of the civilian population. These obligations reflect a fundamental principle of the law of occupation, since the occupying power temporarily assumes many of the administrative responsibilities normally carried by the territorial State, including duties related to the welfare of the civilian population. However, while the legal framework establishes these obligations in relatively clear terms, their implementation often encounters significant political and operational obstacles.

In this way, contemporary conflicts present a very different reality. Armed violence nowadays unfolds within densely populated cities, alongside highly complex political dynamics and rapidly evolving technologies. The increasing urbanization of warfare, the proliferation of non-State armed groups, and the use of advanced military equipment and methods have significantly altered the humanitarian landscape. These developments pose new operational, legal, and ethical challenges for humanitarian actors, raising difficult questions about access, neutrality, protection, and the ability of humanitarian systems to meet the expectations of conflict-affected populations.

An example of an ongoing international armed conflict that poses multiple challenges for humanitarian aid organizations is the conflict between Ukraine and Russia. The conflict started ipso facto in February 2022, as Russian troops began to invade Ukrainian territory through the use of bombs and missiles, which led to the occupation and effective control of some of the territory up to this day. According to Amnesty International, this invasion has led to indiscriminate attacks against residential areas, schools, hospitals and other civilian objects; as well as leaving many dead and injured among the population.^[4] Now, the occupied territory in Ukraine - that is, the regions of Luhansk, Donetsk, Zaporizhia, Kherson and Crimea - poses serious obstacles regarding humanitarian aid, which leads to the question: who has the obligation to protect the population in occupied territories? In contexts of occupation, according to IHL, the occupying party has to take the States’ place - meaning that, in this case, Russia has the primary responsibility to aid the civilians located in the occupied territory, and has at least, the following obligations: authorizing the entry of international humanitarian aid, guaranteeing food and medical supplies for the population, allowing free access of relief supplies, and treating all persons under their control humanely.^[5]

Furthermore, as mentioned earlier, humanitarian aid is obstructed in the context of conflicts due to the increasing frequency of natural and man-made disasters. In the case of the Ukrainian-Russian conflict, in June 2023 a dam located in the occupied region of Kherson was attacked by Russian troops, causing dangerous floods throughout the area, provoking internal displacement and worsening the crisis.^[6] In addition, the loss of the dam caused shortages of electricity, telecommunications and water, while Russian emergency services were nowhere to be found.^[7] Throughout the entire conflict, Ukrainian-occupied territories have been difficult to reach by humanitarian aid workers and organizations, as Russia has blocked such access.^[8]

Thus, after examining the context of Ukrainian-occupied territories and recognizing that occupying powers often fail to fully uphold their obligations toward the civilian population, it becomes necessary to rethink how humanitarian assistance is delivered in such environments. One of the most significant challenges faced by humanitarian organizations is not simply providing aid, but reaching the populations that need it most. Access constraints, security risks, and political barriers frequently prevent humanitarian actors from operating effectively in occupied or contested areas. For this reason, stronger cooperation and coordination with civil society organizations, National Red Cross and Red Crescent Societies, and relevant governmental institutions is essential to improve the effectiveness of humanitarian assistance. Such partnerships can facilitate access to affected communities while also strengthening the sustainability of humanitarian responses.

A comparable debate concerning humanitarian obligations under occupation has also emerged in relation to the situation in the Occupied Palestinian Territory. Under the Fourth Geneva Convention, an occupying power must ensure the provision of essential supplies necessary for the survival of the civilian population, including food, medicine, and public health services. Because most international bodies, including the United Nations^[9] and the International Court of Justice^[10], consider Israel to exercise effective control over significant aspects of Palestinian territory, it is generally regarded as bound by the legal framework governing occupation. In situations where the population of an occupied territory is inadequately supplied, the Convention further requires the occupying power to allow and facilitate humanitarian relief operations carried out by States and impartial humanitarian actors, including organizations such as the International Committee of the Red Cross. While occupying authorities may implement certain security measures such as inspections of humanitarian consignments, international humanitarian law prohibits the arbitrary denial or prolonged obstruction of humanitarian access to civilians in need.

In recent years, however, several humanitarian organizations and international institutions have expressed concern that restrictions on humanitarian assistance entering areas such as the Gaza Strip may be inconsistent with these obligations. Proceedings before the International Court of Justice, including the case brought by South Africa against Israel^[11], have emphasized the duty to ensure that civilians have access to essential goods such as food, water, medical supplies, fuel, and shelter, and that humanitarian organizations are able to deliver assistance effectively. At the same time, Israel has argued that certain restrictions are necessary for security reasons and has contested the characterization of Gaza as fully occupied following its military withdrawal in 2005. However, many international legal authorities maintain that Israel’s continued control over borders, airspace, and key infrastructure sustains obligations associated with the law of occupation^[12]. Taken together with the example of Ukraine, these debates illustrate a broader structural challenge. At the same time, international humanitarian law clearly establishes duties regarding humanitarian assistance in occupied territories, their implementation remains highly contested in practice, underscoring the need to strengthen mechanisms of accountability and compliance with international humanitarian law.

Given the persistent gap between legal obligations and operational realities, improving humanitarian access in occupied territories requires both stronger compliance with existing legal norms and the development of more effective operational practices. One key priority is the depoliticization of humanitarian assistance. Humanitarian access should not be used as a bargaining tool within broader political or military strategies. Ensuring that humanitarian operations remain neutral, impartial, and independent is essential for maintaining trust and facilitating access to affected populations.

A second priority involves strengthening monitoring and accountability mechanisms. International organizations and monitoring bodies play an important role in documenting restrictions on humanitarian access and highlighting situations where occupying powers fail to meet their legal obligations. Third, humanitarian actors and international institutions may benefit from developing clearer operational frameworks that allow humanitarian assistance to be delivered more rapidly in contexts of occupation. This could include improved coordination mechanisms, standardized access procedures, or agreements that facilitate humanitarian corridors.

In addition, working alongside local and nationally recognized actors can also contribute to building trust. When occupying authorities and other belligerent parties observe international humanitarian organizations cooperating with institutions that are already known and established within the territory, they may be more willing to allow humanitarian operations to proceed. At the same time, affected populations are often more likely to trust and engage with humanitarian actors when assistance is delivered in collaboration with organizations and individuals whom they are already familiar with.