With No Judge or Jury, Who Will Decide the Fate of 4.1 million Aid-Dependent Syrians? A Comment on the Legality of UN-Coordinated Cross-Border Aid Operations in Syria

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As the UN Security Council (“UNSC”) once again prepares to consider renewing the mandate for UN-coordinated cross-border humanitarian aid operations in Syria, 4.1 million aid recipients wait to see whether Russia will finally veto their last remaining lifeline. With stakes at their highest since 2014, relevant actors within the international community can revert to established legal positions surrounding cross-border aid in Syria to avoid abandoning those left most in need by the conflict.

The context of Cross-Border Humanitarian Aid in Syria

In 2014, parties to the Syrian conflict (primarily the Syrian Authorities) continued to disregard calls for unimpeded humanitarian access, whilst broader humanitarian access efforts were also obstructed by a nebulous conflict that was growing in intensity and increasingly characterised by evolving frontlines controlled by rapidly changing parties.

Attempting to combat these obstacles with international political consensus, on 14 July 2014, the UNSC unanimously adopted Resolution 2165 (2014) (impliedly under Chapter VII of the UN Charter), thereby bolstering the legal basis for the establishment of four international border crossings: two on the Turkish border, and one on the Iraqi and Jordanian borders, respectively.

Although such a step remains unprecedented, with the mandate for humanitarian aid operations falling ordinarily within the UN Secretariat and being regulated by well-established International Humanitarian Law (“IHL”) frameworks, the UNSC mandate was initially renewed annually without great controversy. More recently, however, it has become divisive. Consequently, just one Turkish border crossing remains operational following Russian veto usage, and since July 2022 concessions given to achieve renewal have reduced the renewal period from 12 to 6 months, effectively crippling any attempt to engage in programmatic cross-border aid responses.

In January/July 2023, a Russian veto will likely finally extinguish the UNSC cross-border humanitarian aid mandate so as to enforce Syrian Authorities’ demands that aid be provided exclusively through Damascus and given to opposition-held areas across conflict line. This is despite the fact it that it is widely accepted (including by the UN Secretary General), that such means of providing aid will be insufficient to replace cross-border aid, and has the potential to impact fatally upon the quality/quantity of aid provision in the north and north-west (see here, here, here, here, here, and here) given past experiences of the escalating consequences of the closure of UN border crossings in north-east Syria, and the history of UN-documented intentional weaponization of humanitarian aid by Syrian Authorities (see, inter alia, here ([73]), here ([33-34]), here ([172]), here ([132]), here ([10-11]), here ([100-101]), here ([146]), here ([37, 120]), here ([95]), here (Annex III [1]), here ([70]), here ([45-46]), here ([9-11]), and here ([27]).  

The legal bases for continuing non-UNSC mandated Cross-Border Humanitarian Aid in Syria

Although seen as legally unnecessary at the time, Resolution 2165 may have provided the logistically ‘cleanest’ route from one of the highest legal authorities for the establishment of multiple international border crossings, across multiple international borders, to urgently serve millions in desperate humanitarian need. However, it is now a sub-optimal humanitarian response and obscures the fact that other legal bases exist to continue cross-border humanitarian aid in Syria in the absence of a UNSC mandate. Those legal bases can essentially be divided into those supporting the legality of non-UNSC mandated cross-border humanitarian aid per se, and those legally justifying non-UNSC mandated cross-border humanitarian aid under circumstances precluding wrongfulness. Each route of those legal bases is developed more fully in a recent report drafted by the authors as part of a wider initiative, but the analyses here focus upon those supporting the legality of non-UNSC mandated cross-border humanitarian aid per se (and only as applied to the Syrian conflict today).

The Syrian conflict continues to be defined by a multifaceted map of International Armed Conflicts and Non-International Armed Conflicts (“NIACs”), the latter of which are regulated inter alia by Article 3(2) common to each Geneva Convention (“CA III”), which makes it clear that “an impartial humanitarian body … may offer its services to the Parties to the conflict”. Once offered, humanitarian relief cannot be ‘arbitrarily’ refused, e.g., where doing so breaches international law, exceeds what is absolutely necessary to the achievement of a legitimate aim, or “lead[s] to injustice or to lack of predictability, or…[is]…otherwise inappropriate” (see here, [51-54]).

No reference is made in CA III as to which ‘party’ (i.e., State or non-State actors) may be the recipient of such an offer. Often, this broad wording thus falls to be interpreted by Article 18(2) of Additional Protocol  II to the Geneva Conventions (“AP II”), per which humanitarian relief operations “shall be undertaken subject to the consent of the High Contracting Party concerned”.

As such, should AP II apply to the NIACs in question, it may be that the consent of the ‘High Contracting Party concerned’, i.e., the Syrian State, would be necessary for the UN/relevant States to lawfully offer and deliver cross-border humanitarian aid.

However, this broad statement of principle is not an accurate reflection of the law in the Syrian conflict, as, despite being party to all four Geneva Conventions and Additional Protocol  I to the Geneva Conventions (“AP I”), Syria has elected, in its sovereign capacity, not to ratify AP II, which, contrary to CA III, cannot be said to codify customary international law (see here, p. xxxiv).

Unlike other potentially comparable conflicts, Syria is thus not bound by, nor entitled to rely upon, AP II (and its provisions on consent), leaving CA III as the operative provision applicable to Syrian cross-border aid.

Unlike AP II, CA III makes no reference to the need for the consent of the High Contracting Party to the NIAC in question (in this case, the Syrian State). Its application here therefore grants a legal basis by which to obtain consent from non-State actors operative in the Greater Idlib Area, notwithstanding the position taken by Syrian Authorities.

Naturally, some oppose the above position on the grounds that CA III and IHL more generally should not be used to authorise non-consensual cross-border activity by third-parties, lest such aid contravenes the principle of territorial integrity under broader Public International Law (“PIL”).

Taking this into account, the position advanced does not necessarily seek to override those norms per se; rather, it uses co-applicable principles of (customary-) IHL, as the body of law specifically designed to regulate the conduct of hostilities, to accurately contextualise the otherwise State-centric norms of PIL to situations of armed conflict so as to reach mutually acceptable conclusions in respect of all applicable legal norms, in conjunction with the modern approach to the doctrine of lex specialis (see, e.g., here).

Of course, outside of these macro-level concerns, related criticisms have been levelled at this argument on the grounds that CA III cannot be divorced from AP II, given the frequency with which they are read together.

However, this position is rejected by some of the most authoritative institutional voices on IHL, including the ICRC (see here, p. xxxiv). Put simply, whilst CA III is widely recognised to codify customary international law, AP II (and in particular the provisions on consent contained therein) is not, and should not obtain that status ‘by osmosis’ because it is substantively similar to CA III. This is particularly so in relation to the Syrian State, which, by failing to ratify AP II, yet ratifying CA III, has elected to remain open to the fact that offers of humanitarian assistance may be made to non-State Parties.

Legally, therefore, third-party State/UN actors may approach parties to NIACs in the north-west so as to obtain their consent to continue current cross-border operations in and to areas under their control, including through present UN border crossings.

Of course, even if this is the case, many arguments against the legality of non-UNSC sanctioned cross-border aid in Syria continue to rely upon ‘territorial integrity’ as an absolute bar to any cross-border activity in the absence of the Syrian State’s consent.

For the reasons noted above, this is not the position in IHL; importantly, however, this is also not the position under PIL, as cross-border aid fulfils neither of the elements necessary for a ‘prohibited intervention’ with a State’s territorial integrity, namely that of: (a) an interference in the domaine réservé of another State; and (b) using ‘coercive measures’ to do so (see Nicaragua [241]). Thus, as affirmed by the ICJ, where it is given only “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being”:

There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (Nicaragua [242]).

Admittedly, some scholars advancing this argument have been aware of its justificatory limitations for cross-border aid generally on the grounds that the:

[ICJ] in Nicaragua was concerned with the provision of relief items ‘at the border to actors operating in country’, as opposed to direct engagement with relief operations inside Nicaragua, and that as such, the judgment should not necessarily be read as permitting the provision of humanitarian relief inside an affected state” (see here, p. 9).

However, this challenge seemingly ignores that the Court’s affirmation of the legality of cross-border aid was not phrased in terms of where that assistance was to be provided, in direct contrast with the view taken with regard to US support for Contra military operations in Nicaragua, which, to be lawful, were expressly required to remain outside of the border, suggesting by direct comparison that no such territorial restrictions operate upon strictly humanitarian cross-border aid (see here, p. 10).

That said, even conceding this point is not fatal to reliance on Nicaragua, as it necessarily results in the minimum position that assistance “at the border to actors operating in country” is lawful. For Syrian cross-border aid, this is precisely what is happening, the abbreviated logistical position being that UN Agencies arrange for Turkish trucks to transport their cargo from load points to transhipment hubs in Türkiye, at which point they arrange for Syrian third-party implementing partners to collect the cargo from the transhipment hub and deliver it to Syria. The result is that “[v]irtually no staff has accompanied the goods across the borders” and “[o]perations have essentially been implemented by local partner organisations” in a logistical arrangement that mirrors those seen as lawful in Nicaragua (see here, p. 21).

Reframing legal dialogues surrounding Syrian Cross-Border Humanitarian Aid

Numerous options therefore exist to continue non-UNSC sanctioned cross-border aid in Syria. Those options are grounded in elementary principles of international law and in the sovereign treaty choices of the Syrian State. Importantly, they are also grounded in the facts of the Syrian conflict, and thus are largely non-transferable, not least because unlike other conflict scenarios, continuing UN cross-border aid in Syria is not a forceful demand that it be established de novo, but rather to refrain from ceasing the provision of aid when doing so will inevitably foster humanitarian catastrophe for millions of Syrians. Further, because Syria is one of the few not to ratify AP II, the Syrian conflict is one of the few in which the question of XBHA is governed by the provisions of CA III, which permits consent to be sought from parties to the conflict other than the Syrian State.

Should these bases be ignored, there is a real risk of developing precedents capable of demanding UNSC involvement in all other conflict/humanitarian aid scenarios, only serving to perpetuate the politicisation of an issue that should never be the subject of geopolitics.

Ultimately, therefore, whilst a UNSC Resolution may have once helped combat the fluid topography of territorial control within the Syrian conflict (see further here, Section V) and generated consensus-based legal authority, today, that conflict is starkly different, with opposition-held territory now characterised by ossified areas of territorial control that have rarely been contested in two years, administered by identifiable groups with established and reliable negotiating structures. The UN’s position has also changed, the question now being whether it will abandon responsibilities it has discharged for nearly a decade, rather than whether it will adopt them in the first place (see further here, Section IV).

Today, the operative legal provisions thus meet with the facts on the ground, in that relevant actors are legally entitled to rely upon the consent of non-State groups exercising territorial control in north-west Syria without a UNSC mandate, and logistically able to do so by identifying and coordinating with those bodies.

With no judge nor jury in this situation, the time is therefore apt to reframe cyclical renewal dialogues to acknowledge that the UNSC’s role as an emergency interlocutor is no longer necessary, and accept that the matter can revert to its default setting in the comparatively de-politicised UN Secretariat, as it was pre-resolution, using the same ‘problem-solving’ approach that led those seeking solutions in 2014 to take the unprecedented step of involving the UNSC in the first instance. The stakes associated with doing so have never been higher – 4.1M lives, and IHL as we know it, depend on it.

Photo: ‘Security Council Holds Emergency Meeting on Syria’ (UN Photo/Manuel Elias, 07 April 2017, United Nations, New York Photo #719540).

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