Humanitarian Assistance: Between the Law and Reality
The catastrophic earthquakes that razed parts of Türkiye and Syria earlier this month have caused deaths, injuries, and damage of almost incomprehensible proportions. International aid requested by the Turkish government has been forthcoming, although the scale of destruction is, sadly, such that it will take months and very likely years before a semblance of normality can be restored.
The situation is different in the devastated areas of north-west Syria where, at the time of writing, the ability of international actors to reach people in need has been stymied. The reasons are numerous, the main one being the constraints on relief schemes imposed by the Syrian government. The military and security situation in the ongoing non-international conflict in the north-west is also very complex, with sanctions in response to President Assad’s atrocities likewise restricting aid.
The UN is once again being castigated in certain circles for its unwillingness to blast through the legal and real barriers to its action. This in turn has revived discussions about the law governing humanitarian activities (understood here as encompassing both assistance and protection work), and in particular about the un/lawfulness of cross-border operations without the territorial State’s consent. This post aims to provide a very brief recap of the former and, within it, to opine on the latter.
The Law of Humanitarian Assistance
International Humanitarian Law (IHL), whether treaty or customary, regulates relief operations in both international and non-international armed conflict. While the rules may not be as granular as they could be, this body of law provides a fairly clear general framework within which humanitarian activities may be conducted. A preliminary rule, based on sovereignty, is that a State has the primary obligation to meet the needs of the population within its territory or under its control. It is not expressly reflected in IHL except for situations of occupation, but may be inferred from the object and purpose of IHL, and is anchored in human rights law.
In this context it should be mentioned that the Syrian government has been resisting cross-line aid for territory not under its control from the rest of the country since the beginning of the conflict. A main group in charge of north-west Syria is also reported to have resisted receiving any cross-line aid from government-controlled territory after the earthquakes.
Impartial humanitarian organizations have a right to offer their services to carry out humanitarian activities, in particular when the needs of the population affected by an armed conflict are not met. The right of humanitarian initiative is included in Articles 9/9/9/10 of the four Geneva Conventions, respectively, for international armed conflicts (IAC), and in Common Article 3 to the Conventions for non-international armed conflict (NIAC). Additional Protocol I (AP I) specifies that such offers “shall not be regarded as interference in the armed conflict or as unfriendly acts”, a statement that is widely recognized as applicable also in NIAC.
Offers of services under the treaties are limited to the ICRC and “any other impartial humanitarian organization.” Thus, an offer may be validly rejected if the proposing entity is not cumulatively: an impartial, humanitarian, organization, which is to be evaluated on a case-by-case basis. Offers of services by States and other actors may of course be submitted, but are not covered by these provisions of IHL per se. It should be stressed that humanitarian services may be proposed by qualifying organizations not only for the benefit of a civilian population affected by armed conflict, but can also be focused on activities in favor of prisoners of war, internees and criminal detainees, the wounded and sick – including combatants or fighters – and other vulnerable groups.
Humanitarian activities by impartial humanitarian organizations require the consent of the parties concerned(barring UN Security Council action, more on that below). This summary statement of existing IHL, which in my view is correct both as a matter of law and reality, continues to be the subject of controversy, including in relation to the situation in north-west Syria.
As a matter of law, IHL governing IAC explicitly requires the consent of the parties concerned. Pursuant to Article 70 of AP I (1) (…) relief actions in “any territory under the control of a Party to the conflict which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.” In occupied territory, as per Article 59 (…) “the Occupying Power shall agree to relief schemes on behalf of the said population.” While it may be observed that the directive term “shall” implies an obligation of acceptance in both cases, and the language is stronger as regards occupied territory, it is nevertheless modified by the explicit requirement of consent; a perhaps unfortunate, but unavoidable clause that cannot be wished away. A concerned State, apart from a party to the conflict, may be a State through whose territory relief schemes may need to transit. It is understood that an adverse party does not belong to the group of concerned States (unless aid must traverse its territory).
The issue of when a denial of consent may be deemed “arbitrary”, not addressed in the IHL treaties, has been the subject of expert and scholarly writing, and the term itself has been referenced in resolutions of the UN Security Council, UN General Assembly, UN Human Rights Council and UN Human Rights Committee. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict acknowledges that there is no single definition of “arbitrary”. It posits that consent is withheld arbitrarily if:
(i) it is withheld in circumstances that result in the violation by a state of its obligations under international law with respect to the civilian population in question; or (ii) the withholding of consent violates the principles of necessity and proportionality; or (iii) consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate. (para 49)
It is submitted that the first ground may reflect the lex lata, but that the following two do not, at least yet. Where consent has been unlawfully denied State responsibility and individual criminal responsibility may in certain cases arise.
In NIAC, Common Article 3 states that “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” Article 18(2) of Additional Protocol II (AP II), which has a higher threshold of application provides that “relief actions for the civilian population which are 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.” The plain language of the text is in the singular, which can only be interpreted as referring to the consent of the State party to a NIAC on whose territory humanitarian activities are to be conducted.
Syria is not a party to AP II. A few points are nevertheless worth making. AP II regulates conflicts involving armed groups that, inter alia, exercise control over a State’s territory, akin to the north-west Syria scenarioand, as just noted, explicitly requires the territorial State’s consent for relief operations. It appears illogical to claim that State consent is not required in the lower threshold Common Article 3 conflicts in which the relevant armed groups are even “weaker”, i.e. where State control over territory is presumably stronger, just on account of its silence on this issue. Moreover, AP II “develops and supplements” Common Article 3, and many of its provisions are considered to reflect customary IHL. It may be argued that Article 18(2) is one of them.
The issue of whether Syria’s consent for cross-border relief schemes is necessary was first addressed in an open letter by a group of legal experts published in the Guardian in 2014. Leaving aside the issue of whether the “UN” as a whole – as is imprecisely worded in the text – always meets the requirements of neutrality, impartiality and non-discrimination, the main assertion in the letter was that where “various opposition groups are in control of territory … 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.” It is not clear, based on the already cited wording of IHL norms governing assistance in NIAC, how this conclusion was reached. The letter does not offer an explanation. Neither the ICRC nor the Oxford Guidance (para. 42) authors share this interpretation. And Naz Modirzadeh of Harvard Law School offered a rebuttal in two installments that is worth reading.
A second letter by a smaller group of legal experts was issued after the recent earthquake entitled “There is Still No Legal Barrier to UN Cross-Border Operations in Syria Without a UN Security Council Mandate”. Its title is almost identical to the first and the arguments focus on the lawfulness of UN cross-border action. A key assessment repeated from the first letter is that “overly cautious interpretations of international law should not risk the lives of millions” urging “the UN to apply IHL so that it enables, rather than prevents, life-saving assistance reaching those in need.”
As opposed to 2014, when the UN Security Council issued Resolution 2165 authorizing the use of four border crossings into Syria, such a resolution cannot be obtained today for obvious political reasons.[i] The question is thus not one of IHL, which as mentioned requires the consent of the territorial State, but whether UN lawyers are correct to be seeking another legal mandate for the organization’s action. This would appear to be the case. As IHL provides no such authorization, a lack of Syrian consent can only be overcome by a UN Security Council mandate. Depending on the situation, that mandate may require the use of force under Chapter VII, as was the case (only) twice in the past. To push UN humanitarian agencies into cross-border action in Syria without a mandate seems reckless. The problem to be solved is political, not primarily legal, and certainly not one of IHL.
The Matter of Reality
Regardless of the law, it is hard to see how direct cross-border delivery of aid without the consent of the territorial State would work in most situations, as a matter of reality. Dictatorial regimes, especially, tend not to have qualms about using force against their own population and could be ready, depending on the context, to attack aid convoys and personnel. Without communication, indispensable security guarantees could not be obtained, while humanitarian staff would be operating outside the perimeter of domestic law. This is in addition to the myriad security issues usually faced by humanitarian personnel who negotiate, enter, exit, or work in territories controlled only by armed groups.
The bottom line is that, in practice, the consent of all parties to an armed conflict is necessary to enable the safe, rapid, and unhindered delivery of humanitarian services. Legal interpretations, no matter how well-meaning, should not be divorced from reality.
Under IHL, once impartial humanitarian relief operations have been agreed to, the parties to an armed conflict and other concerned States must allow and facilitate the rapid and unimpeded passage of humanitarian relief, subject to their right of control (AP I, art. 70(2)). Several provisions of AP I, that may also serve as guidance in NIAC, elaborate on what is meant (AP I, art. 70(3); ICRC Customary IHL Study, Rule 55). Setting up relief schemes is organizationally and logistically challenging as armed conflict does not leave roads and infrastructure untouched. It also requires coordination within an organization, among different entities if working in concert, and with the relevant authorities. Practical issues to deal with will likely include fulfilling visa requirements or obtaining waivers if possible, negotiating customs clearance for the aid and organization’s equipment, obtaining permits for the passage of convoys and personnel, arranging the routes/check point crossings to be taken if security reasons demand. And so on ….
Under IHL, the parties to an international armed conflict must also ensure the freedom of movement of authorized relief personnel (AP I, art. 70(2)). Their activities or movements may be restricted “only in case of imperative military necessity” (AP I, art. 71(3)). These rules will also be relevant in practice in NIAC. It is submitted that the military necessity ground must be restricted geographically and temporally. It cannot be used to generally bar an offer of services or to deny the totality of humanitarian services being proposed by an impartial humanitarian organization, as that could circumvent humanitarian action as such.
Last, but not least, humanitarian relief personnel, and objects used for humanitarian relief operations must be respected and protected (AP I, art. 70(2)). This, inter alia, means that they may not be attacked, that the parties to the conflict must ensure their safety and prevent the looting or diversion of aid. Under the ICC Statute, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance (…) mission is a war crime in both international and non-international armed conflict (ICC Statute Article 8 (2) (b) (iii) and 8 (2) (e) (iii)).
The natural disaster in Türkiye and Syria is a tragic reminder that armed conflicts are not only a source of immense human suffering, but have the potential to greatly exacerbate subsequent humanitarian crises. While the impulse to suspend legal rigor in favor of the compelling demands of humanity in dealing with the situation in north-west Syria – or in other similar tragedies – is totally understandable, there are also costs. IHL, in particular, should be kept outside the vagaries of the political arena, including through interpretive uncertainty about the legal issues it governs and what it actually says. Any other approach risks undermining the credibility, and thus the protective goals, of this body of norms.
[i] Factual update: until the recent earthquake the number of border crossings had dwindled from four to only one, due to Russian backing for the Syrian regime. Two more have since been authorized for 3 months by the Assad regime without recourse to a new resolution. See https://www.theguardian.com/world/2023/feb/13/syrias-assad-agrees-to-open-two-more-entry-points-for-aid-to-earthquake-victims
Jelena Pejic is the Lieber Scholar at the Lieber Institute for 2023. She was formerly a Senior Legal Adviser in the Legal Division of the ICRC in Geneva.
Photo credit: Mass Communication Specialist 1st Class Mike Wright, US Navy