Ethical and legal perspectives on cross-border humanitarian operations

The devastating armed conflict in Syria has once again raised the question of the ethics and legality of cross-border humanitarian operations. Many humanitarian agencies that have been excluded from working in Syria by the Syrian government have rightly explored other ways to protect and assist civilians in opposition-held parts of the country that are not easily or routinely reached by cross-line humanitarian operations authorised by the government. This article looks briefly at three main types of cross-border operations in humanitarian history, and then addresses two main questions: can cross-border operations be pursued legally?; and what constitutes ethical crossborder operations?

Precedents for cross-border operations

History suggests three main types of cross-border operation.

1. Unauthorised by the affected state but agreed to by armed groups and the neighbouring state

There are two famous examples of cross-border operations that were not authorised by the state concerned, but were agreed to by a neighbouring state and implemented by armed groups controlling territory within those states.

In the Nigerian civil war from 1967–-70, many humanitarian agencies led a cross-border air-bridge into Biafra from Sao Tome. This cross-border operation was started by a consortium of church agencies, Joint Church Aid, frustrated with official International Committee of the Red Cross (ICRC) and UN operations that were being negotiated with the Nigerian government. Joint Church Aid flew 66,000 tonnes of relief supplies into Biafra on 5,310 relief flights and had several planes shot down by the Nigerian air force.

In the Ethiopian civil war of the 1980s, church agencies formed a consortium in Sudan, the Emergency Relief Desk (ERD), to move relief supplies across the Ethiopian border with Sudan without Ethiopian government consent. The ERD was established in 1981 and worked directly with the Eritrean Relief Association (ERA) and the Relief Society of Tigray (REST), the relief wings of the Eritrean People’s Liberation Front (EPLF) and the Tigrayan People’s Liberation Front (TPLF). ERA and REST managed the delivery and monitoring of relief operations with limited oversight by ERD teams making cross-border assessments. Throughout the cross-border operation the ERD had the consent of the government of Sudan, which kept the border open. The ability (and desire) of the ERA and REST to meet the needs of their populations was in stark contrast with the Ethiopian government’s lack of access and its starvation strategy.

2. Authorised by the affected state, the neighbouring state and armed groups

Operation Lifeline Sudan (OLS), a joint government and UN cross-border operation from Kenya into southern Sudan in the 1990s, had the consent of both the governments concerned and armed groups. OLS built on shared incentives to prevent refugee flows and respond instead to internally displaced and vulnerable populations in situ during ongoing armed conflict. Humanitarian law and principles were a key part of the agreement in OLS’ seminal Ground Rules for the consortium of UN agencies and 35 NGOs involved. OLS marked the first time that the UN had worked directly with armed opposition groups and government together. This was made possible largely because of strong and united international pressure on Sudan, and a strong lead agency in the shape of the UN Children’s Fund (UNICEF).

3. Imposed forcefully by the UN Security Council with the consent of neighbouring states

This third type of cross-border operation is represented by the UN-imposed ‘safe haven’ in Northern Iraq in 1991, in the wake of the first Iraq war. Here, neighbouring Turkey and Iran were reluctant to accept a massive caseload of Kurdish refugees. With Turkish and Iranian consent, France, the UK and the US promoted the idea of a safe haven and no-fly zone in Kurdish areas of Iraq to which refugees and IDPs could return and be supported with cross-border humanitarian aid from Turkey and Iran. The safe haven was established following UN Security Council Resolution 688 of 5 April 1991, and managed as part of the military–humanitarian operation Provide Comfort, led by the allied victors of the Iraq war, UN agencies and international NGOs.

The legality of cross-border humanitarian operations

The legality of cross-border humanitarian operations turns mainly on the two issues of the consent of the affected state and the exclusively humanitarian character of any crossborder aid. Under international humanitarian law (IHL), the consent of the state in whose territory operations are to be implemented is required. So too is the consent of the neighbouring state from which any cross-border operation is to be mounted. In practice, consent is also required from any non-state armed actor in effective control of territory through which the relief goods must transit or for whose civilians they are intended. While opinions are divided as to whether the consent of armed groups is required and, indeed, sufficient, it is usually essential in practice if aid is to be delivered safely and effectively.

Although consent is required, states do not have unlimited freedom to refuse relief actions. If relief is clearly necessary and the agency offering its services clearly humanitarian, then states must not arbitrarily withhold consent. They may do so for valid reasons like military necessity or a justified suspicion that humanitarian actors or staff are not acting in a way that is guided by humanitarian principles. They may not refuse for arbitrary reasons like a desire to weaken the resistance of the enemy, cause starvation, deny wounded enemy combatants medical care or deliberately discriminate between particular groups. Refusing consent in such circumstances would violate IHL.

The law does not stipulate how consent must be given. It need not be publicly expressed but could be based on private assurances or an attitude that could, in good faith, be interpreted as acquiescence.

If state consent is withheld for valid reasons then unauthorised relief operations are unlawful. Although the International Court of Justice has ruled that the provision of humanitarian assistance in a principled manner does not amount to intervention, such operations would nonetheless violate the affected state’s territorial integrity as well as IHL. Staff may be turned back at the border or, if already in-country, goods and equipment can be confiscated and staff deported. Staff may also face proceedings on grounds ranging from illegal entry to supporting the enemy.

If consent is withheld for arbitrary reasons, perhaps counterintuitively, unauthorised operations are not automatically lawful. If carried out by a state or international organisation they would violate the affected state’s sovereignty and territorial integrity. However their wrongfulness might be precluded in exceptional circumstances by the legal principle of necessity. ILC Draft Articles on State Responsibility, Article 25.  An example could be a one-off relief operation to bring lifesaving supplies to a population in a specific location in extreme need, when no alternative exists. NGOs are not subjects of international law so cannot violate a state’s sovereignty or territorial integrity. Instead, unauthorised operations do not benefit from the safeguards of International Humanitarian Law (IHL) and staff may face proceedings under national law.

Legally, there is nothing intrinsically good, bad, better or worse between in-country and cross-border aid. Aid modality does not affect the legal position. Only the grounds on which consent is refused and the principled quality of humanitarian practice determine the legality of humanitarian action.

The ethics of cross-border operations in Syria

If the law allows cross-border humanitarian operations in certain situations, what are the main ethical considerations in the decision to pursue such operations? Like most humanitarian decision-making, these turn on issues of need, context and capability, and issues of principle around impartiality, neutrality and independence.

Humanitarian needs are not being met across Syria by the humanitarian agencies currently authorised to operate there by the Syrian government. Needs remain unmet because of active hostilities, the creation of new needs on a daily basis and because securing cross-line access from all parties to the conflict is routinely problematic. There is a significant shortfall in humanitarian funding and capacity in areas under government control. This is because of government suspicion of international NGOs and donor suspicion of government manipulation of aid.

The prospects for positive international action to reduce needs and increase humanitarian access are poor. For political reasons it is unlikely that any measures under Chapter VII of the UN Charter will be taken. Significant international and regional support for the Syrian government means that there is a lack of unanimity at the United Nations to take more forceful protective action for affected civilians. At the time of writing, consultations were under way regarding a possible Chapter VII cross-border aid resolution.  Armed intervention by one or more states looks politically imprudent. The increasing number of parties joining the conflict increases the likelihood of a long regional war in a volatile part of the world. This volatility increases the risk that any protective action by an outside state will cause it to become embroiled in a costly, protracted and widening war.

All of these factors increase the potential significance of cross-border operations and give them humanitarian salience and moral logic as a possible third way that agencies are obliged to explore. But the splintered and conflicted Syrian opposition offers no easy option for humanitarian partnerships in any cross-border operation. They are no ERA or REST, and their political supporters want to provide humanitarian, military and political support simultaneously. The increasing Islamist element in the opposition also means that the most disciplined partners best able to organise humanitarian aid may be the least politically desirable to Western donors.

In this very non-ideal context, a number of conditions must be met if cross-border humanitarian operations are to be ethical as well as legal. The first two overlap strongly with international law. The others are more strictly ethical and concern the weighing of goods and the pursuit of virtues in a difficult situation.

1. An exclusively humanitarian goal

Legally and ethically, this condition is primary. Any humanitarian agency engaging in cross-border humanitarian operations should be doing so for humanitarian reasons alone. No agency should be running humanitarian operations as part of a wider political aim to support the development and success of opposition forces. Partisan politics is perfectly ethical in itself, but it cannot masquerade as neutral and impartial humanitarian action. Agencies will constantly have to make this position clear to the many donors who have taken sides and to their opposition partners. Nor would it be right for agencies to undertake cross-border operations purely because they feel an organisational need to be present and boost their brand accordingly. In an already confused and sensitive operational space, there is no room for agencies engaging primarily for publicity and reputation alone.

2. Principled operations

All humanitarian decision-making should be principled. Impartiality will be essential so that an agency can reach victims on all sides of the conflict in a war whose geography is changing fast. Agencies must aim for neutrality so that their resources and advocacy do not give unfair advantage to any party to the conflict. Operational decision-making must be as independent as possible so that agencies make humanitarian choices with autonomy.

3. Feasibility

Agencies must constantly weigh up what is possible for humanitarian action within the cluttered, contested and inexperienced realm of opposition politics. They must work with partners who are willing and able to develop genuine humanitarian capacity that is principled, determined and effective. This will require courage, patience, good judgement, accompaniment and ethical red lines that put absolute moral markers around good and bad practice. At present, remote management and its attendant problems are likely to be the norm. Serious risks to the lives of humanitarian workers will persist and need to be weighed against effectiveness.

Ultimately, if agencies judge that effective humanitarian action is not feasible in a cross-border operation they must be ready to withdraw and try something else. A reasonable chance of success is ethically important. The possibility (or not) of actually implementing operations and doing so fairly and safely for all people concerned needs to be taken into account.

4. Cooperation

Many agencies have operated quite secretly in crossborder operations to date and in deliberate isolation from one another. This may be wise if it is essential to staff safety and discrete access. But it may be wrong if it is primarily competitive and about stealing an advantage over competing NGOs. A consortium approach has been a strong feature of successful cross-border operations in the past and may be a more ethical way to proceed in terms of maximising common goals and finding strength in numbers for the benefit of affected people. Optimising collective action is always ethically important.

5. Complementarity with cross-line aid

Agencies must also weigh up the impact of cross-border operations on cross-line aid. Both types of programme must combine to best effect to avoid gaps and duplication, and to aim for fairness in shared measures and standards of aid. Cross-border and cross-line assistance must also take due care to ensure that one programme is not politically manipulated to the detriment of the other. The existence of cross-border aid must not be used as a justification for restrictions on cross-line aid, and vice versa. Transparency and coordination between both sides are the best means to generate fair discussions of the humanitarian value and coverage of each approach.

6. Best value relative to regional and global options

Agencies should also weigh wider considerations when deciding about cross-border aid investments in somewhere as difficult as Syria. If operational feasibility is significantly limited and humanitarian principles are at risk, then an agency is duty bound to consider other uses for its resources. They may find better value in wider regional programmes like refugee support or lobbying for peace. It may be wiser to stop high levels of organisational energy and resources being consumed in the Syrian crisis when a larger and more immediate impact could be made elsewhere.

7. A long view

Any consideration of options must also think long term. The Syrian crisis, and any wider conflict that emanates from it, demands a ten-year view at least. This requires any agency to think about where it can be most usefully placed now in order to build the relationships and capacity that will make it a constructive and resilient humanitarian player for communities who will continue to suffer the effects of this conflict over the decade to come.

Hugo Slim and Emanuela-Chiara Gillard are Senior Research Fellows at the Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford.