As the Syrian conflict rolls on, humanitarian needs in northwest Syria continue to intensify. But as needs have risen, so too has dissatisfaction with operations to alleviate them. This must be addressed if the future of aid delivery, and that of the 4.1 million people living in the northwest, is to be secured.
In Syria, cross-border humanitarian aid previously took place under a UN Security Council (UNSC) resolution renewed every 12 months, which established unprecedented emergency international border crossings into opposition-held areas to combat the Syrian regime’s arbitrary denial of humanitarian aid. For a time, the resolution successfully supported aid delivery. From 2019, however, Russia began to veto crossings when political concessions for its regime allies were not granted, reducing what were once four border crossings to one (Bab al-Hawa, across the Turkish border), and what was once a 12-month renewal period to six—too short to reliably plan and resource humanitarian operations.
Then, on February 6, 2023, Turkey and northwest Syria suffered two massive earthquakes, killing thousands of Syrians and razing routes once used to deliver aid. Syrians relied upon the UN more than ever in the weeks following the earthquake, but its response was painfully slow, and unlike in Turkey, early search and rescue/recovery responses were left to heroic yet under-staffed civilian aid groups. Eventually, the UN Secretary General for Humanitarian Affairs, who had apologized for the UN’s slow response, negotiated regime consent for two additional border crossings from Turkey for a period of three months. This conclusion was previously unthinkable given the regime’s prior decade of obstructing, targeting, and arbitrarily denying humanitarian access, but stoked fears that its willingness to consent would damage imperatives to keep the UNSC mandate alive. These fears were confirmed on July 10, 2023, when Russia vetoed the last—and undoubtedly primary—UNSC-mandated border crossing at Bab al-Hawa.
This new ‘consent model’ raises serious concerns for non-governmental organizations responsible for actually delivering aid
On July 13, the regime consented to use the Bab al-Hawa border crossing for six months. This time, however, it prohibited interactions with key interlocutors and demanded a central role in operational coordination and oversight. This was quickly condemned as unworkable and thus in contravention of international humanitarian law, leading the UN to further bargain away some of the regime’s most unrealistic demands. Since then, all three crossings have operated on the basis of consent, with varying re-authorization timetables. This new ‘consent model’ raises serious concerns for non-governmental organizations responsible for actually delivering aid, chief among which are the threats to the sustainability of humanitarian operations by allowing the regime to control humanitarian access, refusing consent when its conditions are not met.
To some extent, this situation arises because the UN maintains that either UNSC authorization or state consent is essential for cross-border aid into Syria. Thus, in the absence of a UNSC resolution, the UN will pursue the latter, even at great cost. But—at least as a matter of law—we did not need to be here, as cross-border aid into Syria is legal without UNSC or regime authorization.
The legality of cross-border aid in Syria without UNSC or regime authorization
Non-international armed conflicts between the regime and the opposition are governed by International Humanitarian Law, in particular by the Geneva Conventions of 1949 and their Second Additional Protocol of 1977 (APII). International armed conflicts (between states) are governed by their First Additional Protocol of 1977 (API).
Article 3(2), common to each of the Geneva Conventions (Common Article (CA) 3(2)), states that “an impartial humanitarian body … may offer its services to the Parties to the conflict.” No reference is made to who may receive or consent to that offer, but “Parties” is plural, inferring that any party can consent to humanitarian access into areas under its control, notwithstanding the position of the state party. Article 18(2) (APII), however, is narrower, stipulating that humanitarian relief operations “shall be undertaken subject to the consent of the High Contracting Party concerned.”
Thus, under CA3(2), the state appears external to humanitarian assistance in territories outside its control, while under Article 18(2) APII, it takes a more central role. This much is borne in the language of CA3(2) as a whole; for example, it preliminarily states that non-international armed conflicts take place on the territory of a “High Contracting Party,” whilst provisions of subsequent articles are said to bind “each Party to the conflict.” Read holistically, the CA3’s language therefore seems to anticipate the reality of multiple conflict parties, and distinguishes between the “High Contracting Party” (where definitions or prerogatives depend on its involvement) and more broadly formulated “Parties”. Given the latter’s use vis-à-vis humanitarian assistance offers, the inference should be that humanitarian aid offers may be made to or accepted by any conflict party, including but not limited to the “High Contracting Party.” Were this not the case, the language specifying or differentiating “High Contracting Party” would be rendered redundant, contrary to accepted treaty interpretation practice (see here at p.490, albeit this interprets APII, rather than CA3(2)). In other words, the grammatical interpretation of both provisions does not make state consent a necessary condition for cross-border aid deliveries.
Admittedly, this argument has its critics, with some suggesting that: “[i]t is difficult to interpret the silence of [CA3(2)] in this manner, particularly in view of the significant infringement of territorial sovereignty of the state party to a [non-international armed conflict] that humanitarian relief operations conducted in its territory without its consent would entail.” This view therefore suggests that reference to APII and broader principles of sovereignty support conclusions that state consent is always required. Admittedly, there will be “a more limited range of grounds for withholding consent where relief is intended for civilians in territory under the effective control of armed opposition groups.”
While potentially of more relevance in other conflicts, these conclusions face two hurdles in the Syrian case. First, despite having ratified each of the Geneva Conventions and API, Syria has not ratified APII, which is the body of law governing conflicts such as the Syrian one. Further, contrary to CA3, there is no consensus that Article 18(2) of APII is binding under customary international law. The regime should therefore not be entitled to rely on APII’s stricter provisions to restrict humanitarian access to territories outside its control, which encompasses all border crossings currently in operation.
As cross-border aspects of the UN operations were—and still are—carried out exclusively by NGOs, they do not involve a state entity crossing an international border
Second, cross-border aid in Syria—certainly as delivered by NGOs—without regime consent fulfills neither element necessary for a ‘prohibited intervention’ with a state’s sovereignty or territorial integrity. Turkey has always supported the border crossing at Bab al-Hawa, and opposition groups have, in general, accepted aid coming through it. No force has been used against the Syrian state to gain access to territories that it does not control. Furthermore, as cross-border aspects of the UN operations were—and still are—carried out exclusively by NGOs, they do not involve a state entity crossing an international border. NGOs are not subjects of, nor are they bound by, international law; accordingly, while they could be prohibited from crossing borders under domestic laws—which bind them—their doing so does not infringe international norms, such as state sovereignty. Indeed, it is for this reason that the International Court of Justice has noted 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.” In Syria, this conclusion is particularly apt, as it was drawn in circumstances in which humanitarian aid was delivered at, rather than necessarily across, borders. This is precisely what has been happening in Syria for more than a decade, where UN agencies transport cargo to hubs in Turkey for Syrian trucks to collect and deliver across the Syrian border.
Conclusion
Although still looked at with skepticism by some, the conclusions drawn here are increasingly well rehearsed (see here, here, here, here, here, and here), and have been repeatedly endorsed by some of the most highly-qualified scholars and practitioners. Indeed, it was on this basis that, as the impending fate of the UNSC mandate became clear, years of advocacy attempted to get official recognition of the UN’s ability to continue remotely programmed aid without UNSC or regime consent. Ultimately, it staunchly maintains that these requirements are necessary, and continues to support the ‘consent model’, which, however effective, is currently forcing it to reconcile the seemingly irreconcilable positions of the regime, and those forced to shoulder the responsibility and risks associated with actually delivering aid within its demands.
Aid will—hopefully—flow, if imperfectly, and the political realities of the regime’s willingness to offer consent will make it increasingly impossible that the UN will adopt principled legal positions outright
And so we find ourselves in a new ‘cross-border predicament’. Of course, many of the legal debates that got us here now occur in the background. Aid will—hopefully—flow, if imperfectly, and the political realities of the regime’s willingness to offer consent will make it increasingly impossible that the UN will adopt principled legal positions outright. Nonetheless, the UN must find a way to allay the major questions which remain for key stakeholders. NGOs and expert humanitarians must be listened to, and their views actioned, if the rapidly increasing distance between them and the UN is to shrink.
Jack Sproson is a British barrister operating a primarily international practice from Guernica 37 Chambers, a boutique specialist international law firm based in London, UK. Among many other things, he is actively engaged in a range of issues arising in the context of the Syrian conflict, with a particular specialism in relation to cross-border humanitarian aid operations.
This analysis was originally published as a feature piece in Issue 3 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.