Cross-border aid does not require a Security Council vote; Syrian legal evidences prove
Enab Baladi – Lujain Mourad
Over the past years, Russia has continued to take control of the decision to extend cross-border aid by using its veto and pushing for sufficiency with cross-line aid, prompting Syrian organizations to seek solutions to save some four million people dependent on humanitarian aid in northwestern Syria.
The efforts of the American Relief Coalition for Syria (ARCS) and a group of Syrian organizations were geared towards examining the role of the Security Council in extending the cross-border aid resolution in view of the region’s growing humanitarian needs and the continued politicization of aid by the Syrian regime and its Russian ally.
Last November, Guernica 37, commissioned by ARCS and its partners, issued a study on the legality of extending cross-border aid without voting on the resolution within the Security Council.
The study, a copy of which was shared with Enab Baladi, concluded that the extension of cross-border aid in Syria was legal without the need for a Security Council mandate, based on a set of key points.
The mandate of the Security Council resolution to deliver foodstuffs, medicines, and other essential assistance through the Bab al-Hawa border crossing from Turkey to northwestern Syria for a period of six months is scheduled to expire on 10 January, amid Russian pressure to freeze the resolution in exchange for reliance on cross-line aid. Thus, the central authority in Damascus would control the file of international aid and its distribution.
2014 is not 2022
The study was titled “2014 is not 2022”, one of the most important points on which it relied to illustrate the differences between the need for a Security Council authorization in the aid file back in 2014 and the changes that took place in the region so that aid would continue to flow legally this year without a vote on the matter.
The Vice Chairman of ARCS’ Board of Directors and one of the supervisors of the study, Yaser Tabbara, told Enab Baladi that the “random and vague” conditions in northern Syria and the multiplicity of parties to the conflict, which made the map of control unclear, prompted the Security Council to intervene in 2014 to bring aid into the region.
Humanitarian convoys were repeatedly bombed prior to the intervention of the United Nations Security Council (UNSC), making its intervention through Resolution 2165 a deterrent to the parties to the conflict, according to Tabbara. The UNSC’s formula of intervention gave the cross-border aid decision a hefty political weight that stopped the attacks on the aid convoys, he said.
In contrast, the control map is becoming clearer at the moment, making UN agencies able to handle the party in control of the Bab al-Hawa border crossing to pass aid, according to Tabbara.
Tabbara, who holds a doctorate in law from the American University of DePaul in Chicago, argues that the United Nations agencies’ dealings with the Syrian Salvation Government (SSG) in control of the crossing is a logistical humanitarian approach, as it is a “de facto” authority that controls the region.
Human rights conventions
The Geneva Conventions and their Additional Protocols are the basis of international humanitarian law that regulates conduct and limits its impact in armed conflict.
The third paragraph common to the four Geneva Conventions, which Syria has signed, authorizes impartial humanitarian organizations to provide aid without permission from the central government in the event of non-international armed conflicts.
Although the Second Additional Protocol restricted the provision of aid in this case, Syria chose, using its sovereign right, not to sign this protocol, which means that impartial organizations are able to provide aid across borders legally even if the central government does not agree, according to Tabbara.
He explained that the Syrian regime is legally approving the cross-border aid, as it intentionally chose not to sign the Second Additional Protocol.
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 (central government) if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies.
Article 18 of Additional Protocol II to the Geneva Conventions
Dozens of reports from international and local organizations have warned of a forthcoming catastrophe if cross-border aid is halted under the humanitarian conditions of Syria’s northwestern population.
The reports confirmed that cross-line aid, which the Syrian regime and its Russian ally are calling for as a substitute for cross-border aid, will not cover the needs of the population in northern Syria.
The massive aid needs and the Syrian regime’s failure to cover them through cross-line aid are arguments that make cross-border access legal without a Security Council vote, according to the Guernica 37 study.
While Russia seeks to demonstrate that cross-border aid is “illegal,” and although the study has proved otherwise, the enormous needs are considered capable of disrupting the law, according to the Vice Chairman of ARCS and one of the study’s supervisors, Yaser Tabbara.
In the event that cross-border aid is not legal, its legality can be established based on the severe humanitarian needs in northwest Syria.
Vice Chairman of the Board of Directors of the American Relief Coalition for Syria (ARCS), Yaser Tabbara.
Tabbara added that reports confirm the Syrian regime’s inability to cover the needs through cross-line aid, making cross-border aid necessary to guarantee the right to life of the residents of northwestern Syria unless the regime proves to be able to pass aid just as effectively, considering it “impossible” at present.
The United Nations warns
The United Nations Secretary-General, Antonio Guterres, warned in a report to the United Nations Security Council that the already deteriorating humanitarian situation in Syria was worsening.
In the report obtained by The Associated Press on 12 December, Guterres confirmed that millions of Syrians might not survive the winter if aid deliveries from Turkey to the northwest are not renewed next month.
He stated that cross-border aid to the northwest remains “an indispensable part” of humanitarian operations to reach all people in need.
The Security Council asked for a report from the secretary-general on Syria’s humanitarian needs in the July resolution that extended the delivery of food, medicine, and other desperately needed aid through the Bab al-Hawa crossing from Turkey to northwest Syria for six months until the 10th of next January.
According to the said report, 7.5 million people live in areas not under Syrian government control, mainly across the north, with a small number in Rukban camp in the southeast, and 6.8 million of them need humanitarian assistance due to hostilities and widespread displacement.
Guterres said, “After 11 years of conflict, the country still has the largest number of internally displaced people in the world, drives one of the world’s largest refugee crises, and the humanitarian situation continues to deteriorate.”
The already dire situation is compounded by cholera spreading across the country, the COVID-19 pandemic, a worsening economy and climate, and other human-caused shocks, he said.
“As a result of these challenges, in 2023, 15.3 million people, out of a total population of 22.1 million, are estimated to require humanitarian assistance, compared to 14.6 million people in 2022,” the secretary-general said.
According to the secretary-general, “this is the highest level of people in need since the start of the conflict in 2011.”
Syrians face the same fears ahead of the vote to renew Security Council Resolution 2165, while the Syrian regime and its Russian ally are pressuring to halt cross-border aid, painting it as a “violation of Syria’s sovereignty.”
According to the Guernica 37 study commissioned by ARCS, the aid transfer mechanism through the Bab al-Hawa crossing is not considered transboundary, as the role of the representatives of the UN agencies ends at the Turkish border, while the aid is delivered to local non-governmental partner organizations in Syria.
Pr. Yaser Tabbara said that the problem for the Syrian regime and its Russian ally is that international organizations cross the Syrian borders while other relief organizations are not bound by the obligation of United Nations agencies. This prompted the study to dismantle the aid mechanism to reduce the border-crossing status.
He explained that some adjustments to the current aid mechanism could de-label it as cross-border aid by assigning some logistical parts of the mechanism for the transport and delivery of aid to beneficiaries in the north of Syria to parties outside United Nations agencies.
Instrument for “friendly countries”
Through the study, ARCS provided an “instrument” for friendly countries exposed to Russian blackmail to demonstrate their ability to continue supporting cross-border aid without fear of Russian veto using legally established alternatives and arguments, according to Yaser Tabbara.
Tabbara added that the study aimed to persuade the various parties of the legal theory they had put forward and to convey the voice of humanitarian organizations.
The study does not aim at waging a legal battle with Russia and the regime but rather maintains our humanitarian goal in ensuring the continuation of cross-border aid in order to save millions of Syrians.
Vice Chairman of the Board of Directors of the American Relief Coalition for Syria (ARCS) and one of the study supervisors, Yaser Tabbara.
While the Syrian regime and its Russian ally seek to politicize aid, relying on the “sanctity” that international law grants to national borders, the study proved that cross-border aid does not violate the law and does not affect Syria’s sovereignty and the sanctity of its borders.
On the mechanism for benefiting from the study, Tabbara said that the Secretary-General of the United Nations, Antonio Guterres, has the mandate to decide that aid is a humanitarian issue and does not need a Security Council vote.
Prior to making such a decision, the Secretary-General instructs the United Nations Office of Legal Affairs (UNOLA) to determine the legality of continuing cross-border aid without a Security Council resolution.
The Secretary-General’s decision depends on the manner in which the Office of Legal Affairs is mandated, and the office’s response depends on political considerations related to donor countries.
What is UNSC Resolution 2165?
In July 2014, the United Nations Security Council (UNSC) passed Resolution 2165, allowing UN humanitarian agencies and their implementing partners to use cross-line routes and border crossings Bab al-Salama and Bab al-Hawa (Turkey), al-Yarubiyah (Iraq) and Ramtha (Jordan), in addition to the crossings already being used, to ensure humanitarian access.
The resolution also allows all Syrian parties involved in the conflict to immediately and directly deliver humanitarian aid to people throughout Syria without hindrance.
Despite the increasing needs in northwestern Syria, the Russian-Chinese veto in the Security Council reduced the number of border crossings from 4 to 1 in July 2020, limiting the entry of aid to the Bab al-Hawa border crossing, which links the opposition-held areas in northern Syria to Turkish territory.
UNSC Resolution 2165 was renewed more than once by a vote in the Security Council amid concerns about Russian veto, most recently on 12 July, when the Security Council voted to extend the mechanism for the introduction of cross-border humanitarian aid from Turkey into Syria for six months, a period imposed by Russia while the originally proposed period was one year.
The United States, Britain, and France abstained because they wanted to extend the humanitarian aid operation for one year, while the rest of the Council’s member states voted in favor of the resolution.
On 6 December, the Syrian Negotiations Commission (SNC) held a meeting on the importance of continued cross-border aid with the participation of representatives of Syrian civil society organizations and representatives of donor countries.
Representatives of Syrian organizations stressed the need to save the humanitarian aid file from the Syrian regime and its Russian ally’s attempts to politicize it.
During the said meeting, ARCS presented the study as the first legal evidence proving that cross-border aid does not require a Security Council vote.
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