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30 April 2014

There is no legal barrier to UN cross-border operations in Syria

3 mins

Sir Geoffrey Bindman QC co-signed the below letter, published on The Guardian on 28 April 2014.

More than three years into the Syrian conflict, 9.3 million people are in urgent need of humanitarian assistance; 3.5 million are in so called “hard to reach” areas. The UN and other humanitarian agencies have long argued that many hundreds of thousands can only be reached effectively from neighbouring countries such as Turkey and Jordan. But the Syrian government continues to refuse consent for “cross-border” operations of this kind despite a clear UN security council demand that it do so. Blatant disregard for the most basic rules of international humanitarian law by the Syrian government and elements of the opposition is causing millions to suffer. But this appalling situation has been compounded by what we deem to be an overly cautious interpretation of international humanitarian law, which has held UN agencies back from delivering humanitarian aid across borders 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. We argue that cross-border operations by the UN would meet three primary conditions for legality.

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

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.

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 UN has been explicit that the Syrian government has arbitrarily denied consent for a wide range of legitimate humanitarian relief operations. According to the top UN official for humanitarian affairs, Valerie Amos, the “continued withholding of consent to cross-border and cross-line relief operations … is arbitrary and unjustified.”

The stakes for correcting this overly cautious legal interpretation are high – hundreds of thousands of lives hang in the balance. Humanitarian organisations will surely face enormous risk in carrying out cross-border relief operations and may decline to do so. These are not easy calculations to make. But in the case of Syria, UN agencies and other impartial aid agencies that are willing and able to undertake cross-border actions can lawfully deliver life-saving food, water, and medical assistance to desperate women, children and men inside Syria. We urge the UN to apply international humanitarian law so that it enables, rather than prevents, life-saving assistance reaching those in need.

The list of signatures can be found here:

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