In December last year, Russia and China vetoed a draft Security Council resolution that would have renewed the authorisation for humanitarian assistance to be provided in Syria via four designated border-crossings. The authorisation had been in place since Resolution 2165 (2014), and had enabled the provision of humanitarian assistance to more than four million Syrians.
In January, the Security Council passed a watered-down resolution (Resolution 2504) reauthorising the use of just two border crossings, allowing access from Turkey to northwest Syria for six months. The authorisation of the Al-Yarubiyah crossing on the Iraqi border, which enabled access to more than a million people in north-east Syria, was not renewed.
Even for the Syrians whose assistance is for now continuing via the re-authorised crossings from Turkey, the future is uncertain. Resolution 2504 is up for renewal in July, at which time the continuation of lifesaving assistance for some 2.7 million Syrians will once again depend upon the good will of the Council’s five permanent members.
The situation highlights the precariousness of reliance upon the Security Council to make decisions about humanitarian crises, and begs the question: is there any legal alternative to Security Council authorisation, in cases where there is overwhelming humanitarian need and the host state will not consent to the provision of humanitarian assistance?
The rules about humanitarian assistance and consent
Additional Protocol II to the Geneva Conventions, applicable in non-international armed conflicts, says that if the civilian population is suffering undue hardship owing to a lack of supplies essential for survival, humanitarian and impartial relief actions ‘shall be undertaken subject to the consent of the High Contracting Party concerned.’ It is broadly agreed that what this means is that while parties to conflicts do not have an obligation to provide consent, consent cannot be arbitrarily withheld (see Sivakumaran).
International human rights law contains an even more robust obligation to consent to humanitarian assistance. The International Covenant on Economic, Social and Cultural Rights (ICESCR) obliges state parties to ‘take steps’ to the ‘maximum of [their] available resources’ to ensure the satisfaction of ‘minimum essential levels’ of the rights in the Covenant. The Committee on Economic, Social and Cultural Rights says that a state’s resources include ‘those available from the international community’. Thus, where a state’s population is deprived of its rights to essential food, water, shelter or healthcare, the state is under an obligation to seek and consent to humanitarian assistance in order to ensure minimum essential levels of those rights.
There is little question that the Syrian Government has illegally withheld consent to humanitarian assistance. Read the rest of this entry…