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.
Professor Payam Akhavan Professor of international law, McGill University, Montreal, Canada
Professor Mashood A Baderin Director, Centre of Islamic and Middle Eastern Law, SOAS, University of London
Geoffrey Bindman QC Founder, Bindmans LLP
Professor Laurence Boisson de Chazournes Professor of international law, University of Geneva, Switzerland
Professor Michael Bothe Professor emeritus of public law, Johann Wolfgang Goethe-Universität Frankfurt
Nicolas Bratza Former president of the European court of human rights
Toby Cadman Barrister, 9 Bedford Row International
Professor Stephen Chan Professor of world politics, SOAS, University of London
Dr Hans Corell Under-secretary-general for legal affairs and the legal counsel of the United Nations, 1994-2004; CSCE war crimes rapporteur in Bosnia-Herzegovina and Croatia; former judge of appeal and chief legal adviser of the Swedish ministry of justice and ministry for foreign affairs
Professor Irwin Cotler Emeritus professor of Law, McGill University; member of the Canadian parliament; former minister of justice & attorney general of Canada
Dr Emily Crawford Lecturer, Sydney law school, University of Sydney
John Dowd QC Former New South Wales attorney general
Professor John Dugard Professor emeritus, universities of Leiden and Witwatersrand; former member of UN International Law Commission
Professor Pierre-Marie Dupuy Professor emeritus, University of Paris (Panthéon-Assas), Graduate Institute of International and Development Studies, Genèva
Professor Max du Plessis Professor of law, University of KwaZulu-Natal
Elizabeth Evatt Former member of UN human rights committee
Professor Jared Genser Adjunct professor of law, Georgetown University; co-editor, UN Security Council in the Age of Human Rights (Cambridge University Press, 2014)
Richard Goldstone Former chief prosecutor of the UN international criminal tribunals for the former Yugoslavia and Rwanda; former justice, constitutional court of South Africa; chairperson of the Commission of Inquiry regarding Public Violence and Intimidation (Goldstone Commission)
Professor Jan Klabbers Academy professor (Martti Ahtisaari chair), University of Helsinki
Professor Pierre Klein Professor of international law, Université libre de Bruxelles, Belgium
Anthony Lester QC Blackstone Chambers
Tawanda Mutasah International law scholar, New York University
Aryeh Neier Distinguished visiting professor at Paris School of International Affairs, Sciences Po; president emeritus of the Open Society Foundations
Professor Alain Pellet Professor, Université Paris-Ouest, Nanterre-La Défense; former chairperson, International Law Commission, United Nations; member, Institut de Droit international
Professor Javaid Rehman Professor of Islamic and international law, Brunel University, London
Professor Nigel Rodley Chairperson, University of Exeter Human Rights Centre
Professor Leila Nadya Sadat Professor of law and director of the Whitney R Harris World Law Institute, Washington University school of law; special adviser on crimes against humanity to the ICC prosecutor
Professor Philippe Sands QC University College London
Frances Webber Garden Court Chambers
Professor William A Schabas Professor of international law, Middlesex University
Phil Shiner Principal, Public Interest Lawyers
Professor Willem van Genugten Professor of international law, Tilburg University, the Netherlands
Professor Guglielmo Verdirame King's College London
Professor Mark V Vlasic Senior fellow & adjunct professor of law, Georgetown University; former legal officer, office of the prosecutor, UN international criminal tribunal for the former Yugoslavia
Dr Hakeem Yusuf Senior lecturer & director of LLM Programmes in human rights, school of law, University of Strathclyde