Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 2)

[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] 

Part 1 can be found here.

Humanitarian Concerns

Perhaps as significant as the legal errors in the letter, the authors seem to take no account of the security implications of their recommendation. Given its actions thus far, including its attacks on its own population and many medical humanitarians, it would not be at all shocking if Syrian forces attacked convoys that crossed the border without consent. Without any security arrangements with the state, or communication with the government regarding entry of convoys and staff, humanitarian personnel on the ground in Syria would be operating in violation of Syrian law. Many humanitarian actors, perhaps most vocally USG Amos, have commented on the many armed groups who control and seek to control access in rebel-held areas. Should the UN announce that it was entering Syria without the consent of the government (and indeed in the face of government denial of consent), how would it ensure the safety of humanitarian actors and beneficiaries vis-à-vis non-state armed groups? Whose “consent” would satisfy the authors of the letter? Only some armed groups? Any groups that control territory, regardless of their role in the rebellion? What about Raqqa?

It is hard to imagine how any state would support such a notion: would Yemen allow AQAP to provide independent consent to Saudi Arabian relief agencies to enter Yemeni territory in order to provide humanitarian assistance? Would Lebanon allow Iran to enter southern Lebanon to provide assistance to Hezbollah-held territory? (For that matter, would Lincoln’s government have allowed British-backed relief groups to enter the southern territories to provide humanitarian assistance based only on Confederate consent?) It is also critical to remember that those who are asking the United States and European states to aggressively back the UN and humanitarian NGOs to enter Syria without the government’s consent are asking governments who are openly and actively supporting the Syrian rebellion to overthrow the Syrian government. Moreover, despite what seem to be an array of arbitrary and capricious denials of consent by the government of Syria, it would be peculiar, and approaching hypocritical, for the U.S. and Europe not to recognize that many of the Syrian denials of consent stem from security concerns involving “terrorists.” While the U.S. and Europeans may disagree on whether all of the individuals designated by the Syrian government are in fact terrorists, the U.S. and Europeans are themselves deeply concerned about certain terrorist groups operating in Syria, including their own citizens who may return home.

Political Backdrop

I have heard from many colleagues in the humanitarian and human rights fields that as soon as the letter came out, they received angry messages from staff demanding to know why more INGOs have not stood up to support the letter and criticize the UN. My sense has been that since the letter was published, there has been increasing confusion regarding the legal and political dimensions of the question of cross-border movement in the absence of state consent, and that in important respects this question is being misunderstood as a matter primarily of IHL interpretation. The imprecision of the letter’s arguments strike me as having real consequences in the current environment.

Perhaps foretelling an emerging view, Kaine continues,

Since the United States remains the largest single donor of humanitarian assistance in the world, I intend to push strongly for the disbursement of those relief funds in a way that ensures aid will reach the people most in need, including across borders.  I support conversations with other like-minded countries to explore ways within the UN structure, or outside of it, to ensure more cross border aid is delivered.  I also call on the UN to involve NGOs in discussions related to the planning of aid convoys, aid delivery mechanisms, and implementation of 2139.

IHL provides a very delicate system supporting humanitarian assistance during armed conflict. It is far from the strongest part of the law, and humanitarian actors have struggled to develop tools from within IHL that will assist them in negotiating with intransigent governments and non-state actors alike. It strikes me that approaches like the one captured in this letter and in some advocacy campaigns could have implications far beyond Syria: giving states the message that humanitarian actors may use humanitarian access in IHL as a means for intervention, or that they will not genuinely seek consent before they begin operations.

A Security Council decision to intervene—whether based on the doctrine of the responsibility to protect, or a recognition on the part of the international community that Syria’s horrific actions otherwise threaten international peace and security—may provide a strong basis for relief operations absent the consent of the government. But these relief operations may need to be conducted by state-backed actors who are able to aggressively defend their own security and the security of civilians (read: not humanitarian agencies). Or, intervention may open up access, as has occurred in other recent conflicts, for humanitarian actors to enter the country. But neither of these will occur due solely to an interpretation of IHL. The decision to violate Syria’s sovereignty in order to save civilian lives may be made either by the Security Council or by a group of states that decide that the need to stop the crisis outweighs the general international legal prohibition on intervention. It would be, in my view, both dangerous and inappropriate for the UN’s humanitarian agencies to make such a choice on their own, exposed to the full force of the conflict.

I emphasize that none of my comments should be understood as suggesting that NGOs and INGOs cannot and should not cross the Syrian border without the government’s consent. It would likely not be lawful for them to do so under Syrian law, but in my view the UN humanitarian agencies are differently situated than their NGO counterparts when assessing whether they can and should violate Syrian law, and take the attendant security risks in order to enter rebel-held areas. Nor should my comments be understood as in any way supporting the Assad government’s policies or decisions. However, I believe that political arguments should be made as political arguments.

Conclusions

As I have argued elsewhere, this increasing impulse in advocacy circles may have unanticipated consequences for the long-term goals of those who seek to protect civilians and fighters hors de combat in armed conflict.

It is entirely laudable for a group of eminent scholars and former UN experts to suggest—even demand—that the Security Council should take a firm stand, and make a decision under its Chapter VII authority forcing the Syrian government’s hand. They could even argue that the time has come for intervention (though I would suggest that it would be inappropriate for humanitarian organizations to be placed at the frontline of such an intervention). In short, this is not an IHL problem. The inability of the United Nations to establish itself in a country that has not given its consent for such presence is not based on a faulty interpretation of IHL.

While many INGOs, NGOs, and Syrian groups are frustrated with UN inaction or failure of coordination (as demonstrated in an April 16 report from a group of NGOs working in Syria articulating criticisms of UN leadership), my sense is that it is important for INGOs to understand the difference between an official UN position and operational decisions made by INGOs already active on the border. This situation may become further sensitive as some donors may redirect funds from UN agencies to INGOs, publicly announcing that they are doing so due to their disagreement with the UN’s legal position. It may be worthwhile for these donors, should they find themselves participating in a non-international armed conflict, to recall that the UN’s approach reflects settled and clear international law, and that it further reflects these donors’ own legal positions.