The last month saw several challenges and some opportunities in negotiating humanitarian access. In Syria, little has changed since the October United Nations Security Council (UNSC) presidential statement called on all parties to “to take immediate steps to facilitate the expansion of humanitarian relief operations.” Since then, the Syrian government has approved additional cross-line aid convoys (nine convoys in November, up from an monthly average of three), the opening of new humanitarian hubs and the direct delivery of aid entering via Iraq (rather than routed through Damascus, as was first the case). Despite this, 2.5 million people in dire need of aid remain in “hard to reach” or besieged areas. And while Syria has allowed cross-border aid from Jordan, Lebanon, and Iraq, it continues to reject cross-border operations from Turkey to rebel-controlled areas. The ICRC president Peter Maurer recently described how “it’s a continual struggle to negotiate access […] there remain these pockets […] where we definitely never got access despite all the negotiations.”
Last month the UN Emergency Relief Coordinator, Valerie Amos, convened a group of key stakeholders to the Syrian conflict in order to “maximize cooperation amongst those countries with influence over the parties to the Syrian conflict to address humanitarian challenges,” and presented a list of benchmarks to monitor progress towards implementation of the UNSC presidential statement. Amos claims the failure to take action will lead to a UNSC resolution demanding humanitarian access throughout Syria, and Human Rights Watch has called for such a resolution to be followed by sanctions if the parties do not comply.
While a UNSC resolution would be a logical and necessary next step, if it was possible to overcome Russian and Chinese opposition, the UNSC resolution last May calling for humanitarian access to South Kordofan and Blue Nile (SK/BN) has done little to ensure Sudan complies with its obligation to allow impartial aid to those in need. After months of talks, Sudan and the Sudan People's Liberation Movement North (SPLM-N) finally agreed to allow a polio vaccination campaign in SK/BN in early November, yet more than a month later, access for the health workers is still being blocked by government and rebel forces.
With the failure of negotiations, some organizations have turned to cross-border operations without the consent of the government. With non-consensual cross-border aid now taking place in Syria and Sudan, experts have revived the debate regarding the legality of such operations. Several recent articles, including by Cedric Ryngaert, Jérémie Labbé and Tilman Rodenhauser, and Hugo Slim and Emanuela-Chiara Gillard, have identified a potential legal basis for cross-border aid without government consent, particularly for states and international organizations, yet such positions are not widely accepted by states and the international legal community. Even the president of MSF France, Dr Mego Terzian, has described their cross-border operations in Syria ‘illegal’.
Regardless of whether aid is being delivered cross-border or cross-line, agencies must often engage with armed non-state actors (ANSAs) to gain access. While such engagement can carry a criminal liability if the organization is registered as a terrorist organization, newly proposed legislation in the United States would help alleviate this risk. The proposed bill, the Humanitarian Assistance Facilitation Act of 2013, would exclude speech or communication with ANSAs from the definition of “Material Support or Resources” as long as its aim is humanitarian relief, “including food, clothing and medicine,” to the civilian population, and as long as the organization “acts in good faith without intent to further the aims or objective of the foreign terrorist organization.” If passed, this move should help facilitate humanitarian negotiations in a number of countries, including Afghanistan, Pakistan, Syria, Colombia, Somalia, Palestine, and Yemen. 66 humanitarian agencies have already voiced their support for the bill, which was referred to the House Foreign Affairs and Judiciary Committees on 18 November.
About the author
Antonio Galli has extensive experience working in the field on issues of humanitarian policy and practice, with a focus on humanitarian access, protection, negotiations with non-state armed groups and civil-military coordination. He is currently working as a consultant for PHAP and UNDP.