by Rhodri C. Williams
The immediate inspiration for this post was the fact that the International Committee for the Red Cross (ICRC) recently put online its vast and expanding database on which norms of International Humanitarian Law (IHL) are now deemed to have attained the status of customary international law (CIL), binding on all parties to armed conflicts whether or not they have ratified (or otherwise assented to be bound by) the treaties that give rise to these rules.
The database consists of both a comprehensive listing of the rules now deemed applicable and a compendium of practice, both that which supports the emerging rules and objections against its validity (anyone want to take some wild guesses on what states frequently feature in the latter category?) In the new online version, the practice of some seven further states and a number of international tribunals have been added. The new database constitutes a highly accessible and useful tool alongside ICRC’s additional databases on treaty ratification and application by States Parties.
The good news is that there has been considerable progress in this area. I have written on this blog and elsewhere about the role of soft-law documents like the 1998 UN Guiding Principles on Internal Displacement in consolidating a human rights based approach that has transformed humanitarian action in the post-Cold War period. This transformation has brought new possibilities for advocacy by pairing the cautiously phrased and state-centric provisions of IHL with the less ambiguous and more individual-oriented rules of international human rights law (IHRL).
Moreover, because advocacy for the Guiding Principles has focused on engaging willing states (at the risk of to some extent being co-opted by them), they have been far more successful than most soft-law standards, to the extent of having been incorporated in numerous national laws and policies (compiled by the Brookings Institution here) as well as a groundbreaking regional convention adopted by the African Union. This, in turn, has provided support for customary IHL to more vigorously address areas such as the prohibition against arbitrary displacement (including in internal conflicts), the right of voluntary return for internally displaced persons (IDPs) as well as the state obligation to respect their property rights.
However the new force and reach that a rights-based approach has given to IHL has brought new risks as well. Most obviously, by encouraging humanitarian actors to condemn violations of human rights (such as forced displacement) and demand accountability and remedies (such as restitution), the rights-based approach may create dangerously high expectations on the part of beneficiaries of aid while simultaneously undermining the perceived impartiality of humanitarian actors. In the worst cases – and we do not have to look far to find them – this limits the access of humanitarian actors to vulnerable populations and puts their own security at risk.
As a result, this ongoing retrenchment of the rules of conflict has opened up new policy debates, most recently in the extremely difficult humanitarian arena of the Syrian conflict. The latest iteration came with the 28 April 2014 publication of an open letter signed by 35 eminent legal scholars. The letter noted that 3.5 million civilians – over a third of those in urgent humanitarian need in Syria – are living in areas accessible only from neighbouring countries. However, because Syria has denied consent to humanitarian actors operating in Syria to send cross-border aid, these civilians face a catastrophe.
The open letter found Syria’s withholding of consent to be arbitrary and concluded with a legal finding that delivering aid without the consent of the Syrian government would be legal under the circumstances. Coming on the heels of reports of “despair” in the UN over the failure of a February Security Council resolution (No. 2139) to unblock aid to the most vulnerable in Syria, the letter has had a powerful impact. As reported by AP yesterday, for instance, Australia, Luxembourg, and Jordan are planning to circulate a new UN Security Council resolution that “would authorize the delivery of humanitarian aid into Syria through four border crossings without approval from President Bashar Assad’s government.”
Such moves may be purely symbolic, given that Russian and China have vetoed four prior resolutions that were opposed by the Syrian regime. However, there has been surprisingly little debate about the international law basis asserted in the open letter for such a move. The bracing exception has come from Naz Modirzadeh of Harvard Law School in a two part response published in Opinio Juris, here and here. In part one of her argument, Modirzadeh systematically counters the legal arguments in the open letter, stating that the authors are actually making a political argument and should have done so openly.
More worrisome is Modirzadeh’s analysis of the likely effects of the open letter in part two. She points out that the letter arguably should have been addressed to the Security Council (advocating a Chapter VII resolution on Syria) or member states (arguing for humanitarian intervention on other grounds). Entry without consent by humanitarian actors would, in her analysis, be not only illegal but risky in a world where such actors depend on dialogue with all parties and the perception of neutrality for their safety. Moreover, by implying that humanitarians should be entering without consent, the letter risks loss of funding from donors if they do not choose this course. Beyond Syria, humanitarians may lose access to other threatened civilians based on suspicion aroused by the open letter as well.
The debate will undoubtedly rumble on. One month after the open letter, twelve humanitarian NGOs active in Syria accused aid efforts there of having “lethally failed” in a letter to the Guardian. While the letter highlighted the fundamental importance of unhindered cross-border aid, it neither explicitly endorsed nor rejected the argument that such aid may now be provided without consent. However, by recommending the modality of negotiated ceasefires and stating clearly that the the achievement of unhindered access must result from a political process, the NGOs implicitly distanced themselves from the approach in the open letter:
The international community must work to ensure Syrians can get enough aid wherever they are, be that through sustainable cross-border or cross-line delivery. Efforts should focus on securing local ceasefires – through meaningful negotiations, not siege tactics and starvation strategies – so that aid can be delivered, economies restarted and dialogue to find a longer-term solution to the crisis renewed. It is not our job to tell politicians how to meet these goals but it is our role to highlight their failure to do so when it is so tragically and lethally costly.
The rights-based approach to humanitarianism came as a response to frustrations with the limitations of IHL and has manifestly succeeded in widening its scope and ambitions. However, as revealed by the open letter debate, the reality is that state interests and international politics still present an inescapable parameter on humanitarian action. Attempts to overcome these obstacles through legal argumentation may gain wide support but risk being counterproductive if they attempt to substitute for, rather than contribute to, the political dynamic of seeking humanitarian access.