There wasn’t before, and now there even more definitely isn’t, any legal barrier to providing cross-border humanitarian assistance in northwest Syria

For three long days following last week’s earthquake in Southern Türkiye, thousands of people in northwest Syria lay trapped under rubble, with no help from the UN. The road through Türkiye to the border crossing between southern Türkiye and northwest Syria, Bab al-Hawa, was damaged. Although, to quote the International Crisis Group’s Syria Analyst Dareen Khalifa, ‘there are a million routes to Syria’, Bab al-Hawa was the only crossing that – in January – the Security Council had authorised the UN to use. The Assad regime meanwhile was not allowing sufficient aid deliveries into opposition-held northwest Syria from Damascus. So the UN waited, as people died.

In shattered cities in northwest Syria, amongst the rubble, survivors flew UN flags upside down in disgust. One image shows the words ‘we are dead, thank you for letting us down’ scrawled across a collapsed slab in a sea of broken concrete.

In a striking admission, UN Emergency Relief Coordinator Martin Griffiths said ‘we have so far failed the people in north-west Syria. They rightly feel abandoned. Looking for international help that hasn’t arrived. My duty and our obligation is to correct this failure as fast as we can.’

The roots of this devastating failure, measured in lives lost, is of course partly politics – UN agencies not wanting to stray too far from the favour of the Assad regime – but also an overly narrow interpretation of international law. In 2014, in response to the refusal of the Syrian government to authorise sufficient aid deliveries from Damascus into opposition-held areas in Syria’s north and northwest, the Security Council passed Resolution 2165, authorising the UN and its partners to use four specified border crossings. That resolution was important, because it paved the way for humanitarian aid to be uncontroversially provided through those routes. Unfortunately, it also served to entrench an interpretation of international law that holds that in the absence of such authorisation, the provision of humanitarian aid in opposition-held areas, in cooperation with local authorities, from bases in neighbouring countries, is illegal. That interpretation was challenged by international lawyers in 2014, and it has been challenged since (see compilation of resources here). More on this below; but for now, suffice to say that unfortunately, this narrow interpretation of international law seems to have persistently held sway in the UN.

Russia has always seen the cross-border operation as a violation of Syria’s sovereignty, and so – due to Russia’s veto in the Security Council – since 2014, the Security Council’s authorisation of the cross-border operation has shrunk every time the resolution has come up for renewal. First, two border crossings for twelve months, then just one – Bab al-Hawa in northwest Syria – for twelve months, and then Bab al-Hawa for just six months. And now the road to Bab al-Hawa is damaged, and in any case just one crossing is woefully inadequate to transport all the resources and equipment required to pull people from the rubble.

Days after the earthquake, the US announced that it would try and push through a Security Council resolution authorising the use of more border crossings. This should certainly be pursued, however there are two problems with this idea. The first is that Russia would likely veto it. Since 2014 Russia has steadfastly maintained that the cross-border operation is a violation of Syria’s sovereignty, and it has consistently blocked efforts to expand it, or indeed even to maintain it at current levels. When in January this year Russia reluctantly agreed to a resolution re-authorising Bab al-Hawa, it declared that the resolution ‘fail[ed] to reflect the aspirations of the Syrian people,’ who expected the Security Council to respect ‘Syria’s territorial integrity and its sovereignty’. There is not really any reason to suppose that Russia would now agree to expand the cross-border operation.

The second and more insidious problem with this course is that it buys into and entrenches the same narrow interpretation of international law that was first entrenched by Resolution 2165 in 2014 – that is, that humanitarian assistance cannot be delivered without either the consent of the host State or the authorisation of the Security Council authorisation. Even if that assistance is to be delivered in territory not controlled by the host State, from across an international border, in cooperation with local authorities.

As suggested above, this is increasingly contested. It is contested on a number of bases, including:

• that providing impartial humanitarian assistance is not a violation of a host State’s territorial integrity, nor a violation of any other rule of international law;
• that in the case of States not party to Additional Protocol II of the Geneva Conventions, international humanitarian law does not require the consent of the host State in order for humanitarian assistance to be provided (on this point see Jack Sproson and Ibrahim Olabi); and
• that even if the provision of humanitarian assistance without host State consent is prima facie illegal, its wrongfulness may be precluded on grounds of necessity.

There is insufficient space in this post to address all these grounds, and in any case they have been well covered elsewhere. What does seem particularly pertinent to consider now, however – in the earthquake’s immediate aftermath, with thousands of people injured and without food, water or shelter in the middle of winter, even if the window for search and rescue is closed – is the issue of necessity.

According to the International Law Commission’s (ILC’s) Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Draft Articles on the Responsibility of International Organisations, necessity may preclude the wrongfulness of conduct that would otherwise breach an international obligation. Necessity may preclude the wrongfulness of conduct by a State or international organisation (ie, the UN) if it is the only way to safeguard an essential interest against a grave and imminent peril.

The ILC has not exhaustively articulated what type of interests may be considered ‘essential’, in order to satisfy a plea of necessity. It has, however, said that the interest may be that of the ‘international community as a whole’, and that this might include, for example, ‘ensuring the safety of a civilian population’ (here, p. 80-83). Scholars who have considered what types of essential interests might give rise to a circumstance of necessity have suggested: ‘the international community’s interest in seeing a civilian population’s right to humanitarian assistance respected’; ‘preventing severe suffering of the civilian population’; the ‘maintenance of the food supply of the population’, and a ‘serious and imminent threat’ to a civilian population such as ‘starvation or a devastating epidemic’. With these examples in mind, it is difficult to think of a situation that would more obviously qualify as an essential interest of the international community, such as to give rise to a state of necessity, than the need to provide humanitarian assistance in the immediate aftermath of a one-in-a-hundred-year earthquake in an area already devasted by more than a decade of conflict.

Who gets to decide that a circumstance is one of necessity? The very nature of the circumstance suggests that time is of the essence, so the question does not lend itself to determination by the International Court of Justice – except in retrospect, which is of little use to UN agencies looking for guidance right now on how to proceed. The General Assembly could pass a resolution expressing the view of the international community regarding the necessity of humanitarian assistance (as I have argued previously), and indeed it has done so in the past – see Resolutions 49/21N (1994) and 71/93 (2016). The reference to ‘necessity’ in those examples was not explicitly expressed as a circumstance precluding wrongfulness for purposes of international law, but this does not mean that the resolutions did not nevertheless amount to collective assertions by the international community regarding the necessity of humanitarian assistance in those particular situations.

A more immediate and seemingly more obvious path would be for the UN Office of Legal Affairs to provide such advice. Or, failing that, for individual UN agencies to go it alone and commission their own legal advice, and act accordingly.

Three days after the earthquake, UN Secretary-General Antonio Guterres said in a press conference that ‘many non-UN relief agencies are already delivering through other crossings’, and that he would be ‘very happy if, in relation to the UN, there will be the possibility to do it also in as many crossings as possible’. Two days later Guterres stressed again that ‘much more is needed – and much faster’, and that ‘now is the time to explore all possible avenues to get aid and personnel into all affected areas’. If this was a subtle appeal to UN agencies to challenge the status quo, then the onus is now on every part of the UN system to explore what is possible, and to start interpreting international law in favour of Syrians, not the Assad regime.