Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 1)

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project] 

There is no shortage of profound questions arising out of the armed conflict in Syria. Yet whether the reported United Nations legal analysis concluding that the UN needs the consent of the Syrian authorities before it can undertake humanitarian relief actions on Syrian territory is not one of them. As international law questions go, this one is relatively straightforward: Absent a sufficient Security Council decision authorizing intervention—a decision which has not been forthcoming, at least not yet—UN system bodies, funds, programmes, and specialized agencies need to obtain the consent of the Syria authorities before undertaking relief actions on Syrian territory.

You would be forgiven for being confused about whether there is a contested legal issue at stake if you had read the open letter sent on April 28th from 35 eminent legal experts (repeatedly referred to as “top international lawyers” in the press and in an increasingly loud Twitter campaign) to the UN Secretary General, Under Secretary General Valerie Amos, and the heads of the five UN humanitarian agencies.

US Senator Tim Kaine (who sponsored the Syrian Humanitarian Resolution of 2014) quickly capitalized on the letter and the caliber of its signatories, sending a letter to Secretary General Ban Ki-Moon stating that “continued inaction will only undermine the legitimacy and reputation of the UN.” The Senator noted that while he supports a Chapter VII decision, he believes that “the UN already has the authority to act.” He states,

“Based on the opinion of prominent international lawyers, the UN currently has the mandate and legal authority to organize a large coalition of international NGOs poised to deliver humanitarian aid to all areas of Syria. Anything short implies complicity with the Syrian government’s continued violations of the basic principles of international law, and is shameful.”

Strong words—and ones that raise the question of whether the prominent international lawyers who signed the letter anticipated being implicated in the suggestion that the UN’s failure to essentially run the Syrian border against the government’s explicit denial of consent suggests “complicity with the Syrian government’s continued violations.”

There are many actors with blood on their hands in the generational tragedy unfolding in Syria. In my view, the women and men of the UN’s humanitarian agencies are not on that list.

In this post, I would like to provide a close initial read of the letter (whose arguments have been quickly amplified by an advocacy and media campaigns). My sense is that this is a political argument dressed up in the language of IHL.

International Humanitarian Law

The letter frames its claims on the following argument:

“International humanitarian law is unequivocal that where a civilian population is in need of life-saving aid, impartial humanitarian action ‘shall be undertaken’. In order to protect the sovereignty and territorial integrity of states, international law requires impartial humanitarian actors to seek the consent of the parties concerned. In February 2014, the UN Security Council unanimously adopted Resolution 2139 demanding that all parties, in particular the Syrian authorities, allow rapid, safe and unhindered humanitarian access across conflict lines and across borders. Yet such consent continues to be withheld. Because the Syrian Government has refused to consent to cross-border aid, the UN has not undertaken these vital operations for fear that some member states will find them unlawful.

As a coalition of leading international lawyers and legal experts, we judge that there is no legal barrier to the UN directly undertaking cross-border humanitarian operations and supporting NGOs to undertake them as well.”

Let’s take a closer look at this introduction.

Why has the UN decided to refrain from crossing the Syrian border? Because the UN does not have the consent of the Syrian government to do so—not because the UN is afraid that “some member states will find [vital, non-consensual cross-border aid operations] unlawful.” Except under limited circumstances that do not apply here, international law requires the consent of the state before another state or the UN can enter into its sovereign territory. I am not clear that “fear” plays any role in this; nor am I certain that it is very helpful—and, indeed, it might be quite harmful—to paint UN humanitarian actors as spineless.

There is indeed a set of Security Council decisions demanding that the Syrian government allow and facilitate humanitarian access in accordance with IHL and the UN guiding principles of emergency humanitarian assistance. However, there is nothing in those Security Council decisions, in IHL applicable to the non-international armed conflict in Syria, nor in the referenced guiding principles that establishes that if Syria refuses to allow consent—even for arbitrary or capricious reasons—then relief actions may be taken by the UN without the state’s consent. Where a state has failed to comply with a Security Council decision, it is up to the Council to decide how to react. Put another way, nothing in the relevant Security Council decisions, applicable IHL, or the guiding principles endows UN humanitarian bodies and agencies with the power to decide that Syria’s lack of consent—again, even where that lack of consent is arbitrary or capricious—may be ignored.

Syria is a sovereign state. It has decided—claiming that one of its predominant security concerns is the threat of terrorists entering its territory—not to allow access in the manner that has been demanded by the Security Council. Whether or not Syria’s claim is legitimate, the legal barrier of needing to obtain consent—a legal barrier not manufactured by the UN humanitarian bodies and agencies—remains.

The letter argues that there are three reasons why the UN’s “overly cautious legal interpretation” of IHL is incorrect, and why there is “no legal barrier to direct cross-border” operations. Those are strong words based, I believe, in weak arguments. I will address each in turn.

“First, the United Nations clearly meets the first condition for legitimate humanitarian action, which requires it to respect the principles of humanity, neutrality, impartiality, and non-discrimination in delivering aid.”

This statement strikes me as particularly strange—for, despite the UNGA guiding principles referenced by the Security Council, it is hard to talk of the United Nations as a single entity that clearly and across all relevant bodies respects the Red Cross/Federation principles, not least when it comes to Syria. Indeed, in many cases, numerous UN bodies, funds, programmes, and specialized agencies may not act as a “neutral” party in a particular armed conflict. While in Syria the UN has attempted to broker a political agreement between the parties, it has left certain parties out of the negotiations. This is not a criticism of the United Nations—it is the reality of the organization. Moreover, UN involvement in Libya, Sudan (and, later, South Sudan), and DRC make it difficult to argue that the Syrian authorities would be unreasonable in questioning whether full UN access would benefit the opposition. In any event, perhaps the authors meant to say “the humanitarian bodies and agencies of the United Nations,” but as it stands, the statement is confusing, misleading, and, in important respects, inaccurate.

The next argument:

“Second, in many of these areas various opposition groups, not the Syrian Government, are in control of the territory. In such cases, the consent of those parties in effective control of the area through which relief will pass is all that is required by law to deliver aid.”

I am not aware of any persuasive legal argument that supports the claim that the consent of non-state armed actors is “all that is required by law to deliver aid” in states where the government continues to function. This is not the case in IHL. If there is some other law that the authors are referring to, I am not certain what it might be.

Syria is not a party to Additional Protocol II, so we have to turn to Common Article 3 and customary IHL to discern the applicable IHL standards. Common Article 3 states, “The wounded and sick shall be collected and cared for.  An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” There are very few scholars (and no states that I am aware of) who have argued over the years that Common Article 3 implies not only that humanitarian actors may offer their services but that an organized armed group could then accept this offer as the legal basis for relief actions against the denial of consent by the state.

Article 18 of Additional Protocol II—which, again, does not apply as treaty law since Syria is not a party to AP II—states that “if the civilian population is suffering undue hardship” relief actions  “of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.”

In its Study on Customary IHL, the ICRC found a rule binding in both IAC and NIAC such that, “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.” It is far from clear, however, that states accept the ICRC’s formulation—especially the notion of parties’ (including, implicitly, armed groups’) “right of control”—as reflecting customary IHL.

The UK Manual on the law of armed conflict, for instance, states in a footnote in its section on internal armed conflict that, “International intervention by humanitarian organizations is seen as a last resort and again is subject to the consent of the state concerned.” (Emphasis added) The Manual goes on to note that “the withholding of consent could in itself be a breach of AP II, Art. 14.” Yet Syria is not a party to AP II, and, moreover, even if AP II were applicable, a breach of Art. 14 does not render a relief action undertaken by the UN without consent into a lawful action—it triggers the state’s responsibility for the breach. Some may argue that the wrongfulness of unauthorized operations, while violating Syria’s sovereignty and territorial integrity, may nonetheless be precluded in exceptional circumstances by the principle of necessity. But this is apparently far from the dominant view of states, and in any event would be applicable only with respect to a small subset of activities—such as “a one-off relief operation to bring lifesaving supplies to a population in a specific location in extreme need, when no alternative exists”—not with respect to the size of planned UN actions.

Even if Common Article 3 is interpreted such that non-state actors could give consent to enter territory they control on the territory of a sovereign state, I am not aware of any persuasive interpretation that suggests that such groups could give consent for outsiders to cross an international border in order to do so. At most, this notion contemplates a situation where humanitarians are already inside the country and are seeking access to particular areas controlled by armed groups, as we have seen in, for example, Colombia, Sri Lanka, Afghanistan, Lebanon, and other contexts. This is a very important distinction. The letter authors appear to be suggesting that, for example, ISIS in one area, Jabhat al Nusra in another, and the Southern Front in yet another could grant consent to humanitarian actors to cross from the territory of one state into Syria without the consent (and attendant visas, permits, licenses, and security measures) of the state. This strikes me as quite distinct from an armed group granting consent for groups to enter a particular area they control to humanitarians already in the country.

The authors are of course free to argue that IHL should say this. But it undermines the UN and sells its lawyers short to suggest that the consent of ISIS or Jabhat al Nusra or the FSA or the Southern Front is “all that is required” for UN humanitarian bodies and agencies to cross from another country into Syria.

The letter continues,

“Third, under international humanitarian law parties can withhold consent only for valid legal reasons, not for arbitrary reasons. For example, parties might temporarily refuse consent for reasons of ‘military necessity’ where imminent military operations will take place on the proposed route for aid. They cannot, however, lawfully withhold consent to weaken the resistance of the enemy, cause starvation of civilians, or deny medical assistance. Where consent is withheld for these arbitrary reasons, the relief operation is lawful without consent.”

The last sentence of this paragraph is astonishing—and not only because it is legally inaccurate, but also because it is not clear what, if it were legally tenable, this could possibly look like on the ground. Humanitarian actors are unarmed and rely on negotiation, trust, and dialogue to move between fighting lines and access populations in need. They are not commandos. They do not have fighter jets.

I am not aware of any (let alone enough to establish a customary rule) state practice accompanied by opinio juris, any court decision, or any widely accepted legal commentary that establishes that even if the Syrian authorities arbitrarily or capriciously deny consent for humanitarian access in the ongoing non-international armed conflict there, then consent is no longer required.

As for the position of NGOs, they are “not subjects of international law so cannot violate a state’s sovereignty or territorial integrity. Instead, unauthorised operations do not benefit from the safeguards of [IHL] and staff may face proceedings under national law.”

(to be continued)