Cross-border Humanitarian Aid in Syria Has Legal Basis But Few Precedents

On April 18, the UN Security Council “underlined the need to facilitate the provision of humanitarian assistance through the most effective ways, including, where appropriate, across borders,” in a nonbinding oral statement. The statement followed a passionate plea to the Council by Valerie Amos, the Head of the UN Office for the Coordination of Humanitarian Affairs (OCHA), to “consider alternative forms of aid delivery, including cross-border operations,” to access the most needy population in rebel-controlled areas of Syria.

These developments gave new impetus to an ongoing debate on whether aid can be channelled across borders directly in opposition-controlled areas despite Damascus’ lack of consent, or whether it should be channelled across frontlines with consent of the Assad regime. In practice, humanitarian organizations normally request state permission for access to territory. As previously explained in the Global Observatory, the centrality of state sovereignty and state consent in this debate is due to “the deeply state-centric nature of the legal and institutional framework regulating humanitarian assistance.”

From a purely legal perspective, however, arguments can be raised against an absolute condition of state consent for the delivery of humanitarian relief to areas not effectively controlled by state forces. International humanitarian law is not clear cut around this issue, but does provide legal arguments against a strict state consent requirement for humanitarian relief in internal armed conflict that can assist policy makers to heed the recent call of the Security Council.

Key Conclusions

  • International humanitarian law stresses the obligation of parties to a conflict—state or nonstate actors—to allow and facilitate humanitarian assistance. As such, it does not require a strict consent by the state to the delivery of aid—with the exception of Additional Protocol II to the Geneva Conventions to which Syria is not a party—but focuses on the need of the civilian population.
  • Parties to a conflict retain a right to control humanitarian assistance that allows them to prohibit access if it is used for other purposes than strictly humanitarian ones—such as to deliver military equipment. But it also implies that, in order to exercise this right, the concerned party has an effective control over the territory where the aid is transiting.
  • In the case of Syria, a progressive interpretation of international law shows that Damascus’ consent is not a strict requirement to cross-border humanitarian assistance where the Assad regime has no control over the relevant border areas, on the condition that the aid is strictly humanitarian and impartial in nature.

Analysis

The minimum legal provision governing non-international armed conflicts—the legal phrase for civil wars like in Syria—is Article 3 common to the four 1949 Geneva Conventions. This provision remains vague on the issue of state consent for humanitarian relief in opposition-held territories. It reads “an impartial humanitarian body … may offer its services to the Parties to the conflict.” Although offering humanitarian relief does not provide humanitarian organizations a right to access, Common Article 3 clearly gives humanitarian organizations the right to offer their services to all parties, state and nonstate. It is then upon each party to the conflict to decide whether to accept or to decline the offer. In accordance with the principle of “equality of belligerents” underlying humanitarian law, which gives both parties to an armed conflict equal rights and obligations, acceptance by a nonstate party to an armed conflict should not be conditional to consent by the territorial state. Rather, the question whether the civilian population is sufficiently cared for or not must be decisive.

This reading of Common Article 3 is, however, not necessarily reflected in Additional Protocol II to the Geneva Conventions that provides that “relief actions … shall be undertaken subject to the consent of the High Contracting Party concerned,” which can only be a state. However, some commentators have also argued that a state party is only concerned if humanitarian relief has to pass through territory it controls and not if relief is delivered across border directly in opposition-controlled areas.1 In any case, this provision does not apply in the current conflict since Syria is not party to Additional Protocol II. Instead, only Common Article 3 and customary international humanitarian law applies.

The International Committee of the Red Cross’s seminal study on customary international humanitarian law found that customary law is not so clear cut on the issue of state consent for the delivery of humanitarian relief. The study provides that in non-international armed conflict “[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need … subject to their right of control.” This rule seemingly obliges conflict parties to grant access to humanitarian relief operations. For practical reasons, however, the ICRC finds “[i]t is … self-evident that a humanitarian organization cannot operate without the consent of the party concerned.” In this context the “party concerned” is clearly the party to the conflict in control of territory—and not necessarily the state.

While it is arguable that customary international law does not require state consent for humanitarian relief, it grants the parties to the conflict the right of control. This includes the right to search the consignments and to supervise their delivery. For example, the Syrian authorities could legitimately prohibit passage if relief consignments were in fact concealing military equipment to the opposition. However, the right to control requires that Damascus is able to exercise control over the relief goods at a certain point. In contrast, a right to control can hardly be exercised if humanitarian relief crosses an international border directly into territory controlled by the other party to the conflict. In this respect, the right to control of the “party concerned” does not include a right of the Syrian government to prohibit or restrict humanitarian relief in areas where it does not exercise effective control.

This analysis shows that a progressive interpretation of international humanitarian law does not consider state consent as a strict legal requirement for the delivery of humanitarian relief into territories that are not under state control. Therefore, states willing to support organizations that engage in cross-border humanitarian relief into opposition-held territory in Syria could make a sound—if arguably quite progressive—legal argument in support of their position.

However, one needs to acknowledge that such legal arguments will not on their own convince the Syrian government, which could take further retaliatory measures against humanitarian actors operating from Damascus. This reinforces the importance of clearly dissociating impartial humanitarian aid to the population from other forms of support to the political opposition, either lethal or nonlethal. Maintaining the strictly humanitarian character of humanitarian aid would deprive the Syrian government of strong arguments against such legal interpretation. Indeed, as the International Court of Justice stated in a landmark case in 1986, “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.”

Tilman Rodenhäuser is a PhD candidate in international law at the Graduate Institute of International and Development Studies in Geneva.

Jérémie Labbé is a Senior Policy Analyst at the International Peace Institute.

1 Michael Bothe, Relief Action: The Position of the Recipient State, in: Fritz Kalshoven, ed., Assisting the Victims of Armed Conflicts and other Disasters, 1989, p. 94.



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