The lives of hundreds of thousands of Syrians are at stake because of the UN's "overly cautious" interpretation of its mandate to deliver humanitarian aid, a group of more than 30 of the world's top legal experts claims.
A letter published in the Guardian on Tuesday, signed by 35 top lawyers and law professors from around the world, argues that the UN humanitarian agencies have the legal right to defy the Syrian government's "arbitrary" refusal to allow food aid and medical supplies to reach areas under rebel control. The UN estimates there are now more than 9 million people in need of humanitarian aid, of whom 3.5 million are in areas that are hard to reach. Nearly a quarter of a million of them are totally cut off by fighting, and of those, 80% are besieged by government troops.
The letter – whose signatories include Richard Goldstone, the former chief prosecutor for The Hague war crimes tribunal for former Yugoslavia, Sir Nicolas Bratza, the former president of the European court of human rights, and several other global authorities on international humanitarian law – argues that permission from opposition groups in effective control of Syrian territory represents sufficient legal grounds to deliver aid to those areas. Moreover, the letter says that under international humanitarian law, parties to a conflict can only withhold consent to humanitarian deliveries for valid legal reasons, during a specific and temporary military operation, for example.
"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 legal experts argue.
"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."
According to some experts, more than 700,000 people could be helped if the UN ignored Syrian government bans on supplying assistance directly to areas outside its control.
The British government lent its support on Monday night to the legal argument laid out in the letter.
"The UK agrees that providing impartial humanitarian aid cross-border without explicit regime consent is not unlawful in circumstances where the regime is arbitrarily denying consent for humanitarian access across borders or crossing points over which it has no control, and in light of the fact that the regime is employing starvation as a method of warfare against its own people," a Foreign Office spokesman said. "Such aid must, however, fulfil the requirements of humanity and impartiality."
David Miliband, the former British foreign secretary who is now president of a US-based aid group, the International Rescue Committee (IRC), said: "The principle of national sovereignty was developed to protect people and nations from aggression, but it is being abused here in a way that protects aggressors, not victims.
"The moral case to take action to save lives is overwhelming. The legal case set out today is clear."
Last week, the UN secretary general, Ban Ki-moon appealed to the UN Security Council to do more to enforce its own resolution, agreed in February, calling on all parties, but particularly Damascus, to allow desperately needed assistance to get through. But the council is deadlocked, with Russia refusing to put further pressure on the regime of Bashar al-Assad, which continues to deny permission for UN supplies to use five critical crossing points on the Turkish, Jordanian and Iraqi borders that are under the control of rebel groups.
UN agencies say they are operating in a precarious situation and have to be extremely careful not to endanger the substantial deliveries they are making through official channels.
Greg Barrow, the head of the London office of the World Food Programme, said: "The important thing to recognise is that there is a lot of creativity on the ground, and the WFP is working in all Syria's governorates. If we don't negotiate access across borders carefully, we could jeopardise the access to about 4 million people we already have inside the country."
Human rights and aid groups believe the point has been reached where Assad's regime should no longer be allowed to force the UN to choose between supplying government or rebel areas. They also argue there is a grey area in which the UN agencies could be more creative, for example by handing food supplies over at the border to NGOs operating in rebel-held areas.
"With or without a green light from Damascus, it's time for the UN to do whatever it can to expand delivery of aid across Syria's borders. Syria's blatant violation of the laws and of the Security Council's demands shouldn't be allowed to stymie aid to hundreds of thousands in desperate need," said Peggy Hicks, global advocacy director at Human Rights Watch, which has also called for a more pro-active UN approach.
Miliband, whose organisation, the IRC, is delivering medical and other aid to opposition-held areas, said: "UN officials do face difficult dilemmas where they are confronted by the Syrian government with ultimatums and threats. It is the duty of UN member states, especially those on the Security Council, to stand up and support UN officials in putting civilian lives first in rebel- as well as government-held areas.
