What can the international community do in order to invoke the Responsibility to Protect and how can humanitarian aid be organised without military intervention?
Humanitarian crisis as a fresh justification for international action in Syria
Analysis - 20 February 2012
by Luis Peral
Failure to reach a political settlement in Syria, one that should end the indiscriminate violence against civilians, can only lead to a humanitarian tragedy. Even if the worst case scenario – a civil war – does not materialise, the perpetuation of a low-intensity massacre and the counter-offensive of an increasing number of opposition fighters will devastate the country and may well spill over in the region.
The international community is paralysed. Decisions at the UN Security Council have been blocked due to the reluctance of the Russians and the Chinese to act against Assad’s regime – and also due to the fact that they feel that NATO abused its mandate in Libya. External monitoring of the situation is no longer possible since the Arab League announced on 28 January that it had suspended its observer mission in Syria due to the mounting violence in the country and, following the withdrawal of monitors by Gulf States in mid-January and more recently by Jordan, the mission has been formally withdrawn.
The possibilities of a strictly ‘regional solution’ for Syria are thus narrowing day by day, while there is no chance of a ‘national solution’ being found unless the Syrian president, Bashar al-Assad, steps down. But Mr. Assad’s crimes can only build upon themselves; he is surely aware of the consequences of losing power and has perhaps come to the conclusion that no meaningful international action may be undertaken against him anyway. The affected population in Syria will suffer from a scarcity of resources and may even starve in certain regions, a situation that will only worsen due to the impact of economic sanctions adopted by the EU, US, Turkey and the Arab League.
In a last desperate attempt to reverse the fate of the Syrians, the Arab League at its meeting in Cairo on 12 February adopted a Resolution asking the Security Council to authorise a joint Arab-United Nations force to ‘supervise the execution of a ceasefire’, and it urged the League’s members to ‘halt all forms of diplomatic cooperation’ with the Syrian government. Under these circumstances, the most compelling question is whether there is a humanitarian legal argument favouring intervention on behalf of the victims, and what kind of intervention is feasible both in practical and legal terms if certain members of the Security Council persist in blocking the implementation of the most fundamental principles of international law.
Discussions on whether to intervene in Syria have been based so far on the doctrine of the Responsibility to Protect (R2P), that is, on whether the most heinous crimes are being or have been committed by the regime against its own people. The UN Security Council has of course applied this relatively new concept in relation to Libya,, but with a different outcome on that occasion. The principle of R2P is indeed problematic when immediate responses to ongoing massacres are needed. It was certainly endorsed by all UN member states in paragraphs 138 and 139 of the Outcome Document resulting from the 2005 World Summit as an attempt to deal collectively with genocide, crimes against humanity, war crimes and ethnic cleansing, but its implementation was in fact left in the hands of the Security Council. Effective responses to crimes being committed certainly require an ad hoc decision adopted under Chapter VII of the UN Charter. Thus, in the absence of judicial review, R2P essentially becomes another ‘political’ exercise for the P5.
Believing that consensus for intervention would be easily achieved by narrowing down the number of cases deserving it, advocates of R2P have in fact contributed to the politicisation of the interpretation of international crimes. As the International Law Commission already pointed out in 2000, the responsibility of states for gross violations of fundamental international obligations and criminal responsibility of individuals under international law may exist in parallel but should not be mistaken for one another. Since states do not commit crimes, the Security Council is in fact judging individuals and their regimes – which should be reserved for criminal courts – when interpreting R2P as conceived in the Outcome Document.
The avoidance of further politicisation of the Security Council would not only contribute to clarify notions and differentiate the two sources of international responsibility, but would allow for a more effective preventative approach. The effective prevention of mass atrocities requires early action, thus acting even when the legal distinction between, for example, genocide and crimes against humanity, may not be clear to the members of the Security Council or to criminal courts. In order to de-politicise the decision-making process at the Security Council, authorisation to act should not entail prejudging a particular regime or a political leader, but should only be linked to the fate of victims, without prejudice to the criminal liability of certain individuals being ascertained at a later stage.
Moreover, in the Syrian case, Russia has vetoed Security Council decisions explicitly as a way of showing its rejection of NATO’s implementation of Resolution 1973 (2011) on Libya. The NATO bombing of Libya in fact represented a breach of the standard for military operations to be considered legitimate, which is based on the respect of protection requirements directly expressed by UN civilian agencies deployed on the ground. Following a line of legal reasoning that can be traced back to the beginning of the 1990s, the use of armed force was authorised by the Security Council only to the extent that it created the conditions in which UN humanitarian agencies – as well as NGOs working in cooperation with them – could immediately operate.
How, then, can UNSC action be facilitated as regards Syria? As regards the basis of the decision to coercively act on behalf of the victims, the evolution of the situation allows for shifting from the determination of R2P crimes to the consideration of the humanitarian situation as such, as a threat to regional and/or international peace and security. This has been the traditional reasoning of the Security Council, which can indeed be regarded as customary under international law, in situations such as those of the former Yugoslavia, Somalia or Rwanda – for example by Res. 929 (1994), the SC determined that ‘the magnitude of the humanitarian crisis in Rwanda constitutes a threat to peace and security in the region’. Such determination would allow for the adoption of coercive measures in the event that the Syrian government is not willing or able to either guarantee the basic needs of its citizens without discrimination or protect access of international humanitarian agencies to those whose needs are not covered.
The current or potential humanitarian crisis as a basis for a UNSC decision under Chapter VII would avoid invoking crimes for which the regime might be held responsible while emphasising the customary principle of providing basic needs to deprived populations, whatever the causes of such deprivation. This argument cannot be contested on the grounds of political considerations or regarded – as the South African Ambassador said in reference to a previous draft resolution on Syria – as part of a ‘hidden agenda for regime change’. The bottom line is of course that the implementation of the decision is also in line with the practice of the 1990s, in that international civilian personnel should be in charge of the whole operation. The Security Council has sanctioned this argument in general terms at least in two different forms:
- By its Resolution 1296 (2000), the Security Council solemnly included among potential ‘new’ threats to international peace and security, not only deliberate attacks against civilian populations or any other type of protected persons in situations of armed conflict, or the perpetration of systematic gross violations of international humanitarian law and international law concerning human rights in situations of armed conflict, but also denying free unhindered access to personnel who carry out assistance or humanitarian tasks to civilian populations in situations of armed conflict. There is no need in this case for making a preliminary judgement on current or potential R2P crimes, without prejudice to future investigations.
- The P5 had also made a complementary commitment as regards securing humanitarian aid under all circumstances already in 1995, in the form of a letter addressed to the UN Secretary-General. According to such self-imposed obligation – since the letter can be considered a ‘unilateral act’ of those five countries – all collective action including economic sanctions should be ‘directed to minimise unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries’ and should thus contain ‘provisions for all States, including the targeted States, to allow unimpeded access to humanitarian aid’. It goes without saying that the obligation of the SC extends to the consequences of sanctions unilaterally imposed by any state, since a general mandate to act under international law would allow it to modify or even suspend such sanctions should they potentially represent a threat to the existence of the population.
Even in the case of Russia and others insisting on turning a blind eye to Assad’s regime, they cannot deny that potential victims of scarcity, whether this is a consequence of internal turmoil or of international sanctions, deserve international action on purely humanitarian grounds. In order to prevent a humanitarian crisis of enormous proportions, monitoring and preparedness are essential. No interference in internal affairs can be predicated on a decision on measures that have been taken on behalf of many populations under similar severe circumstances for over twenty years already. In this case, it would not be unfair to say that those opposing humanitarian action are in fact pursuing a hidden political agenda.
Inducement and substitution of the UNSC
The fact that the Security Council bears primary responsibility for maintaining international peace and security does not mean that members of the international community may not adopt a secondary line of reasoning where efforts to pass a resolution are blocked. States, starting with those of the P5 who favour helping the victims, should first put forward fresh justifications for intervention challenging the views of those who are blocking the decision. The onus is on all states to provide clear proof of the purely humanitarian grounds of their intended action, starting with providing a credible plan of action, which in turn requires the involvement of all international humanitarian agencies. Indeed, the most neutral form of intervention that has been implemented to date is that of merely creating a space within which humanitarian agents can discharge mandates entrusted to them by the international community.
It is regrettable in this regard that humanitarian agencies have not yet come together in demanding a decision of the Security Council to protect their work should they be bound to act on behalf of deprived segments of the population in Syria. The obvious channel for such a request is indeed the Inter-institutional Standing Committee (IASC) created by the UN General Assembly in 1991 as the main mechanism for inter-institutional coordination of humanitarian aid in complex emergencies, and formed by heads of all UN agencies involved in humanitarian action, the ICRC and the main consortia of humanitarian NGOs. The IASC self-arrogated the function of ‘bringing issues to the attention of the Secretary General and the Security Council’. And, in previous situations, it has indeed requested the Council to protect the fulfilment of the humanitarian mandates of its members as well as respect of the autonomy in discharging such mandates in accordance with their genuine objective of providing humanitarian aid without discriminating against beneficiaries.
The IASC has, on the one hand, asserted its independence from any decision of the Security Council by asserting the mandate of its members even in the absence of a much-needed decision of the Council. For example, in 1996 the Committee took note of the insistent request of the Secretary General to the Council on the need to deploy a peacekeeping operation in the Great Lakes in order to prevent a further escalation of the conflict in Burundi, and declared itself fully aware that humanitarian action was an alibi for the lack of political action but nevertheless remained ‘committed to carrying out humanitarian assistance programmes for affected populations in the region’.
But the IASC has, on the other hand, also requested respect of its autonomy of the Council, including by requesting the Council that states fully respect such autonomy, while the necessary security conditions are created so that humanitarian mandates of its members can be discharged. For example, also in 1996, as regards the then Zaire, ‘[t]he members of the Inter-Agency Standing Committee ... express[ed] hope that measures taken by the multinational force will lead to a sustainable security environment, which is a prerequisite for a longer-term humanitarian solution’ while ‘the humanitarian mandate of the agencies be taken into consideration in the planning and execution of the deployment of the multinational force’. 
It is perhaps fair to say that the IASC is much less assertive – if not mute – these days, although the humanitarian cause is indisputable and the preventative approach has become (at least on paper) an obsession of the global community. In the case of Syria, there is no excuse for having left the problem to the UN High Commissioner for Human Rights, whose continuing effort to try to produce reliable reports on the situation on the ground, even without its missions having been able to enter the country, is indeed remarkable. Is it that humanitarian agencies are somehow accepting that the ‘political question’ in Syria prevails over humanitarian considerations? Do they not recall previous declarations in which they declared themselves committed to fulfil their respective mandates even in the absence of determined political commitment of the international community, and in particular of the Security Council?
The UN Office of the High Commissioner for Refugees (UNHCR) is in a delicate situation in this regard considering that Syria is the third most important host country for refugees in the world, with close to half a million Palestinian and more than 100,000 Iraqi registered refugees. The agency bears no direct mandate on Syrian citizens in Syria unless the Secretary General delivers a special request to that effect, and may well fear that access to its present beneficiaries is denied by the regime in such case. The International Committee of the Red Cross (ICRC) is applying its policy of discretion while working together with the Syrian Red Crescent, which seems to have access throughout the country – including to the rebel areas – but is completely overwhelmed by ever-increasing needs. Other humanitarian agencies have generally remained silent over the last few months in spite of the humanitarian situation worsening.
Only on 11 February did the UN finally start to openly speak of an increasing risk of humanitarian crisis unfolding in Syria. According to the Under Secretary-General for Humanitarian Affairs, Valerie Amos, ‘Governments and humanitarian organisations need to mobilise resources now, in order to cope with rapidly escalating humanitarian needs’, since ‘the intensifying assault by Government forces upon Homs, as well as other towns and cities including Zabadani, Dara and Al-Rastan, increases the risk of a humanitarian crisis in Syria’. The highest UN official responsible for humanitarian affairs has confirmed that a general humanitarian crisis is about to take place in Syria, and has thus provided fresh grounds for the Arab League proposal on a joint peacekeeping mission to be set up by the Security Council.
It is now time that all humanitarian agencies address the Security Council in demanding protection for their humanitarian mandates without reference to R2P crimes, so that such a peacekeeping operation may be exclusively mandated with the aim of creating the humanitarian space within which they can discharge their responsibility. Member states and regional organisations can and should request an adequate resolution of the Security Council, which they should facilitate by placing all necessary civilian and military means of action at the disposal of the Council. The Arab League and Turkey – but also the EU if only for reasons of vicinity – are of course especially interested in sound legal arguments prevailing and means of action being available. But all states of the international community have a genuine interest in fundamental legal principles being applied.
It should however be recalled that the Security Council bears primary but not exclusive responsibility for maintaining international peace and security and thus for identifying relevant threats to it. The fact that it can be blocked as regards critical issues was the reason for the General Assembly adopting its legendary ‘Uniting for Peace’ Resolution, 377 A (V), which was applied – although it was not explicitly mentioned – in relation to South Korea and, albeit not with a coercive nature, precisely in relation to Lebanon. The Resolution should be revived in cases of a blockage at the Security Council in the face of actual or imminent mass atrocities or, preferably, lack of humanitarian access to populations in need. Syria is indeed a case in point, considering that the General Assembly (GA) has already endorsed a strong Resolution condemning al-Assad and that it met on 13 February as requested by its president to discuss the report of the UN Human Rights Council from December last year in which that body strongly condemned abuses by Syrian authorities carried out as part of the crackdown. Moreover, on 16 February, the General Assembly overwhelmingly adopted a Resolution condemning the continued ‘widespread and systematic’ human rights violations by the Syrian authorities and demanded that the government immediately cease all violence and protect its people. However the text makes no reference to the humanitarian crisis that has resulted from the situation or to the joint peacekeeping mission proposed by the Arab League. A new approach is nonetheless necessary in order to trigger meaningful international action. Under the present circumstances, a Special Session of the GA, which is a pre-requisite for the application of the resolution, should be convened and the focus should be shifted to the humanitarian needs of victims. As always in the United Nations, exceptional cases call for exceptional solutions, which have frequently led to new interpretations of mandates and procedures, or even to the shaping of new faculties and responsibilities within the UN system.
Should neither the Council not the General Assembly react with the required urgency and effectiveness, all states of the international community are entitled to undertake action preferably as a coalition in favour of the victims on purely humanitarian grounds, since international law cannot and should not be invoked by one or two countries for the only reason that they sit at the Security Council. All states have a genuine interest in fundamental principles prevailing in international relations, which implies entitlement to use coercive means if a serious breach of such principles is taking place and the system created to preserve international security is unable to work. In such a case, the consuetudinary limit applying to volunteers is that of not using force directly, but only for the purpose of creating a ‘humanitarian space’ – be it through the declaration of a non-fly zone or the protection of certain cities and corridors – within which international actors entrusted with humanitarian mandates by the international community can discharge their own obligations.
What kind of action?
Humanitarian action basically entails three tasks which should be performed by external agents: assessing and monitoring, access to populations in need and – only in cases that the territorial state is not willing or able to grant access – protection of such access, including in extreme cases by armed force. States are under an obligation to facilitate humanitarian assistance and could thus be substituted for the international community – preferably as authorised by the Security Council – were they not willing or able to discharge their respective obligations. As stated by the UN General Assembly when giving shape to the international humanitarian system, ‘states whose populations are in need of humanitarian assistance are called upon to facilitate the work of these organisations in implementing humanitarian assistance, in particular the supply of food, medicines, shelter and health care, for which access to victims is essential’, and ‘states in proximity to emergencies are urged to participate closely with the affected countries in international efforts, with a view to facilitating, to the extent possible, the transit of humanitarian assistance’.
Independent and specialised monitoring is essential to ascertain the humanitarian needs of affected populations. In the case of Syria, not even the Arab League monitoring mission could have performed the task in the humanitarian realm, since it was created to observe the implementation of the Arab peace plan and certainly lacked the technical skills which are required to evaluate humanitarian needs. The assessment of basic needs naturally corresponds to the Office for the Coordination of Humanitarian Assistance (OCHA), which was established by the General Assembly of the UN in 1992 – under the name of Department of Humanitarian Affairs – as a tool which should serve all agencies whose mandates are coordinated within the IASC. OCHA should be supported by all states, especially in cases where the territorial state does not fulfil its obligation to facilitate its task. OCHA should thus be vocal in denouncing obstacles to its work, and UN member states should offer it all necessary means to surmount such obstacles, from diplomatic pressure to the deployment of satellites – UNITAR has the capacity to provide clear images daily of the situation in each Syrian quarter – and even unmanned drones, which could in this way be used for purposes other than lethal ones. 
The second and indeed central aspect of humanitarian action is that of access to populations in need without discrimination, which should also be facilitated by the state. In situations of war, modalities of access are regulated by International Humanitarian Law, which provides the ICRC access to victims –an entitlement which should today be extended to all UN agencies – as well as for the establishment of non-military areas for vulnerable civilians which can under no circumstances be attacked. Even if these modalities are made dependent upon the consent of state authorities, the inspiring principles are indeed part of consuetudinary law, and should apply to all similar circumstances. Safe areas should thus be created for civilians in need – and corridors if they are necessary to maintain an adequate influx of supplies – as determined by the relevant humanitarian agencies.
The protection of humanitarian workers, humanitarian warehouses, humanitarian safe-havens and humanitarian corridors, is of course a last step but it follows the same logic. Only in the case that the territorial state is both unwilling and unable to guarantee basic needs to all civilians in need in a non-discriminatory fashion and where it also proves unwilling or unable to facilitate the deployment of goods provided by the international community through humanitarian agencies, would there be a case for intervention. States of course pledge – and often disburse - funds to keep the humanitarian system ongoing and often to protect its effective functioning, since they all have an interest that each of them complies with such fundamental obligations. But of course, as recalled by Claire Palley, UN member States respond financially to the resulting humanitarian problems ‘in part because of self-interest in discouraging refugee flows and instabilities likely to affect security.’
In these extreme circumstances in which fundamental obligations and interests of the international community are at stake, a blockage of the Security Council and a lack of prompt action by the General Assembly should not further impede the effective distribution of humanitarian aid by international agencies, and thus the full application of fundamental principles of international law. The Council, and to some extent the GA, could only be considered an accessory to the violation of international law obligations, since a different conclusion would render international law, which is the creation of some 200 states, futile. States and all other actors of the international community are thus entitled to act and should act in favour of civilians whose basic needs are threatened in Syria.
 Non-paper on the Humanitarian Impact of Sanctions, Doc. NU S/1995/300, 13 April 1995.
 See, respectively, Resolution AGNU 46/182 and Inter-Agency Standing Committee and Working Group, ‘Concise Terms of Reference & Action Procedures’, Geneva, 1997.
 Statement of the Inter-Agency Standing Committee to the Secretary-General on the Situation in the Great Lakes Region, 12 July 1996, par. 1 and 6.
 The IASC requested in particular the establishment of a formal mechanism ‘to facilitate planning and communication between the military and humanitarian actors’ and underlined how important it is that ‘the multinational force act in accordance with human rights and international humanitarian law’ (cf. Inter-Agency Standing Committee Statement on Matters Relating to the Multinational Force in Eastern Zaire, 22 November 1996, par. 3 to 7).
 She stressed in particular that the escalating violence has made it impossible for humanitarian organisations to deliver the food assistance scheduled for 15,000 vulnerable people in Homs, in January and February, while there are extremely worrying reports of people being denied access to medical care, and of medical practitioners being harassed. See reliefweb.int/node/476224 (accessed 13 February 2012).
 By resolution 498 (V) of 1 February 1951 it made a finding to the effect that the People’s Republic of China had engaged in aggression in Korea (para. 1) and ‘call[ed] upon all States and authorities to continue to lend every assistance to the United Nations action in Korea’ (para. 4), which of course meant military assistance. The resolution does not explicitly refer to the Uniting for Peace resolution, but it emphasises that the Security Council, ‘because of lack of unanimity of the permanent members, has failed to exercise its primary responsibility for the maintenance of international peace and security’ (preamble). Thus, the wording is exactly copied from resolution 377 A (V). The establishment of the peacekeeping operation First United Nations Emergency Force (UNEF I) by resolution 1000 (ES-I) of 5 November 1956 with a view to monitoring the frontline between Israel and Egypt does not come within the same category since UNEF I had no combat function to discharge but was meant to neutralise the conflict solely by its presence between the two opposing parties in accordance with the ‘classic’ peacekeeping concept which was formulated on that occasion. See the excellent comment of Christian Tomuschat at the UN Audiovisual Library of International Law at: untreaty.un.org/cod/avl/ha/ufp/ufp.html.
 The Resolution was adopted by a vote of 137 in favour to 12 against – including Russian and China – with 17 abstentions. The Resolution makes five demands — that the Syrian government stop all violence, release all those detained during the unrest, withdraw all armed forces from cities and towns, guarantee peaceful demonstrations, and allow unhindered access for Arab League monitors and international media. It also asks U.N. Secretary-General Ban Ki-moon to consider the appointment of a special envoy to Syria, possibly jointly with the Arab League.
 See: http://www.un.org/apps/news/story.asp?NewsID=41216&Cr=Syria&Cr1=.
 Resolution UNGA 46/182, Annex, Part I, par. 6 and 7.
 See ‘Drones for Human Rights’, by Andrew Stobosniderman and Mark Hanis, The New York Times, 30 January, 2012 (http://www.nytimes.com/2012/01/31/opinion/drones-for-human-rights.html), with arguments on monitoring human rights which are fully applicable to humanitarian needs.
 See Claire Palley, ‘Legal issues arising from conflict between UN humanitarian and political mandates’, in Vera Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (Dordrecht: Martinus Nijhoff, 1996), p. 152.