Tilman Rodenhäuser (pictured left) is a researcher at the Geneva Center for the Democratic Control of Armed Forces, and a PhD candidate at the Graduate Institute in Geneva. Jonathan Somer (pictured right) is the founder of Persona Grata Consulting, advising on international law and policy in fragile states. Until recently he was Legal Adviser for Geneva Call and has previously worked with the Organisation for Security and Cooperation in Europe.
Over the past year, the Security Council has repeatedly demanded all parties to the armed conflict in Syria, particularly the Syrian authorities, to allow and facilitate humanitarian relief operations across conflict lines and across borders (see resolution 2139 and a presidential statement) – but with little success. In its latest resolution the UN Security Council decided – for a period of 180 days – “that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and [specific] border crossings … in order to ensure that humanitarian assistance” reaches people in need in Syria. The Security Council also decided to establish a monitoring mechanism in neighbouring countries in order to confirm the humanitarian nature of the relief consignments.
Resolution 2165 was adopted as international humanitarian law experts continue to debate whether aid may be lawfully delivered cross-border to opposition-held territories without the consent of the host state. While some (here and here) contend that the issue is clear-cut – with consent being required – the only thing that does seem clear-cut is the lack of consensus. Others, including one of the present authors, argue a case exists for cross-border assistance without consent under certain conditions. This latter view has been supported by the former President of the International Humanitarian Fact Finding Commission and co-author of an authoritative commentary on the Additional Protocols to the Geneva Conventions, Professor Bothe, in an unpublished study provided to the UN. A group of prominent legal experts have made even bolder claims in a recently published open letter. So while international lawyers continue to sharpen their pencils, resolution 2165 supplements IHL by invoking the authority of the Security Council to fill in the gaps left by IHL’s uncertainties on cross-border aid in non-international armed conflict.
The only international treaty that mentions humanitarian relief in non-international armed conflict explicitly is Additional Protocol II. The Protocol clearly requires the consent of the ‘High Contracting Party concerned’ – meaning the state – for humanitarian relief in non-international armed conflicts. However, Syria is not party to APII. Bothe (above) argues that even under APII, state consent is only required if relief consignments have to cross state-controlled territory. Otherwise the state could not be considered ‘concerned’. Common Article 3 of the Geneva Conventions, the cornerstone of the laws of internal armed conflict, foresees that “an impartial humanitarian body … may offer its services to the Parties to the conflict.” It is widely accepted that the term ‘Parties to the conflict’ in Common Article 3 refers to state and non-state parties. In light of the principle of equality of belligerents, the decision of a non-state party to accept humanitarian relief, it has been argued, should not be dependent on the state’s consent. While some contend that this view is not endorsed by States, the number of third States that have either supported cross-border assistance or acquiesced in circumstances, such as Burma/Myanmar and Sudan, may suggest otherwise.
Under customary IHL as interpreted by the ICRC, the consent of the state is not explicitly required. Parties to the conflict must “allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need” but retain a right of control. This rule applies to state and non-state parties alike, who both have the right to search the consignments and to supervise the delivery in areas under their control. Again, it can be argued that the right of control is only relevant for the party exercising de facto control. Accordingly, cross border aid would be lawful under international law if clearly required by the circumstances on the ground, would be subject to the right of control of the concerned party, and would require the consent of the bordering state from which the aid is delivered.
While deciding on individuals’ access to territory is normally a state privilege, there have also been situations – for example in Sudan – where non-state parties that effectively controlled territory required humanitarians to obtain permits for entering ‘their’ territory. IHL does not address the question to what extent non-state groups can, just like states, require international relief staff to obtain ‘visas’ to deliver humanitarian assistance. Thus, the boundary between the right to control humanitarian relief and access to territory and the obligation to facilitate rapid and unimpeded passage lies at the threshold of where an impediment becomes willful or deliberate.
In practice, such a determination is difficult to make. Thus, the Security Council decided on further measures to facilitate humanitarian relief. Under the present resolution, the loading of relief consignments and possible opening of consignments by customs authorities shall be monitored by a UN mechanism. Thus, it seems that any further controls or administrative obstacles imposed by conflicting parties—even if consistent with IHL—will violate their obligation to “enable the immediate and unhindered delivery of humanitarian assistance” and to remove “all impediments to the provision of humanitarian assistance” as spelled out by the Security Council.
Rather than interpreting or changing IHL, resolution 2165 invokes the authority of the Security Council under the United Nations Charter to make binding decisions without specific reference to other sources international law. As argued here, this is demonstrated by the omission of any mention of a right to access, as well as by the 180-day time limit established by the resolution for cross-border relief. The result is two distinct sources of legal authority – Council decisions and IHL – of which the Council decisions normally prevail. While Security Council decisions on the protection of civilians often coincide with and invoke IHL, they may also extend beyond the normative scope of IHL, or even to some extent contradict IHL.
Unfortunately, in the immensely important field of humanitarian relief operations in non-international armed conflict the interpretation of IHL provisions remains controversial, especially when aid shall be delivered to territory under the effective control of non-state parties. The decision by the Security Council to bridge legal uncertainties by means of a legally binding decision is an important step in the present situation towards the protection of civilians. However, the UNSC is at heart a political beast, and political interference in the subject-matter usually reserved for IHL should not be taken lightly, as IHL already represents a delicate balance of interests.