1 00:00:00,720 --> 00:00:06,960 I would like to welcome you to our Lunchtime Segment series, which is organised by the changing character of war centres. 2 00:00:07,830 --> 00:00:14,730 My name is Kate Natural and I'm a research fellow at the centre of this firm. 3 00:00:15,090 --> 00:00:22,739 The seminars are mostly focussed on some of the topics or themes of gender, character, of conflict, 4 00:00:22,740 --> 00:00:29,100 perform these interdisciplinary approaches which include changes in conflict and find out 5 00:00:29,100 --> 00:00:35,340 mentions such as actors involved in conflict or impacting civilians or methods used in conflict. 6 00:00:36,750 --> 00:00:43,500 And the. Today one of our topic will be conflict in Syria. 7 00:00:43,890 --> 00:00:48,780 And so as I said before, we engage in conflicts. 8 00:00:48,780 --> 00:00:51,090 Often we aim to be interdisciplinary. 9 00:00:51,300 --> 00:00:59,700 So far here we have people, we have speakers who are practitioners, but also speakers from various disciplines such as political science, 10 00:01:00,030 --> 00:01:11,300 anthropology, etc. And today the disciplinary committee will shed light on Syria, on conflict in Syria and the legal framework of writing relief law. 11 00:01:12,180 --> 00:01:21,479 Um, I would like to welcome two speakers today that work on the matter of clear debt for our 12 00:01:21,480 --> 00:01:27,390 country is Professor of Public International Law at the University of University of Oxford. 13 00:01:27,600 --> 00:01:30,630 Sorry, he is a co-director with ILA. 14 00:01:30,840 --> 00:01:43,740 And so I think right. I think the reason I think there is widespread in the field of general international law. 15 00:01:44,520 --> 00:01:51,209 He was advisor to several international organisations such as the United Nations 16 00:01:51,210 --> 00:01:56,530 and the African Union and his extensive list of publications monitoring 17 00:01:57,240 --> 00:02:09,810 here also work and advice of our international organisations such as the United Nations or International or International Committee of the Red Cross. 18 00:02:11,880 --> 00:02:15,450 He is a senior research fellow in Iraq, 19 00:02:15,840 --> 00:02:25,680 associate fellow at Chatham House and also a research fellow in the Individualisation of War Project at the European University Institute. 20 00:02:26,370 --> 00:02:32,300 Thank you. Thank you very much. And I think we're going to be a bit interdisciplinary between us. 21 00:02:32,310 --> 00:02:38,760 We're going to talk about the law, but we're also going to bring in some operational dimensions. 22 00:02:39,120 --> 00:02:45,960 And we've been working on this topic of cross-border humanitarian relief operations for a number of years. 23 00:02:46,290 --> 00:02:50,369 It started through a cooperation started, I think, 24 00:02:50,370 --> 00:02:58,740 in 2013 when I was based at the Office for the Coordination of Humanitarian Affairs in New York in that policy branch. 25 00:02:59,220 --> 00:03:08,190 And the humanitarian actors were trying to to grapple with the extremely challenging access situation in Syria. 26 00:03:08,580 --> 00:03:16,110 And I think it's one of the defining characteristics of the humanitarian response in in Syria has 27 00:03:16,110 --> 00:03:22,620 been the difficulty from the outset in actually obtaining access to the country and delivering. 28 00:03:22,950 --> 00:03:27,960 And there are a range of reasons for it. There's active hostilities. 29 00:03:28,290 --> 00:03:39,750 There have been attacks that have been targeted against humanitarian actors or that have incidentally injured humanitarian actors and consignment. 30 00:03:40,110 --> 00:03:50,010 There's been shifting complex front lines, a proliferation of actors holding territory with whom it's necessary to to negotiate access, 31 00:03:50,220 --> 00:03:55,020 and also the instrumental ization of humanitarian assistance by all actors on the ground. 32 00:03:55,560 --> 00:04:02,670 However, one key aspect of the challenges has been the intransigence of the government of Syria 33 00:04:02,970 --> 00:04:09,450 in allowing relief operations and in particular those providing medical assistance. 34 00:04:10,020 --> 00:04:17,429 So against this background, the director of a number of U.N. humanitarian agencies in New York, 35 00:04:17,430 --> 00:04:21,840 we're really trying to understand the legal framework better. 36 00:04:22,170 --> 00:04:30,930 And it seems amazing that in 2003, directors need to understand the legal framework regulating humanitarian relief operations better. 37 00:04:31,170 --> 00:04:34,200 What have we been doing until 2003? The reaction? 38 00:04:34,530 --> 00:04:45,239 So it's a problem. But, you know, the reality is that humanitarian action wasn't really addressed through the lens of the law that much. 39 00:04:45,240 --> 00:04:48,540 It was seen as a far more operational issue. 40 00:04:48,780 --> 00:04:55,080 And the point I always make is that it is extremely important for us to stop and understand the law better. 41 00:04:55,410 --> 00:04:59,910 But on the ground, that's only one element and it's incumbent upon. 42 00:04:59,950 --> 00:05:04,660 Humanitarian actors to continue to treat it as an operational issue. 43 00:05:05,350 --> 00:05:11,380 But that's why in 2003 in New York, there was a need to understand the law better. 44 00:05:11,650 --> 00:05:20,380 And eventually the question was framed very much in terms of what are the rules regulating cross-border relief operations. 45 00:05:20,710 --> 00:05:28,000 Why? Because at that time, as I was saying, Damascus was unwilling to allow relief operations then, 46 00:05:28,270 --> 00:05:34,300 and humanitarian actors were looking at whether it would be possible to respond from neighbouring 47 00:05:34,600 --> 00:05:41,080 states into areas of territory that were not under the control of Damascus at that point. 48 00:05:41,440 --> 00:05:50,440 So it was very much framed as a question on what does the law say with regard to cross border operations? 49 00:05:51,130 --> 00:05:58,450 And I think as a matter of law, the cross-border dimension was a bit of a red herring, quite frankly. 50 00:05:58,840 --> 00:06:06,490 And instead, what was important was to step back and say that the modalities that say are not important. 51 00:06:06,880 --> 00:06:15,670 What is important is the need to see to what extent these realities on the ground affect the basic aspects of the rules, 52 00:06:15,670 --> 00:06:21,340 and in particular, the question of the consent of the territorial states. 53 00:06:21,850 --> 00:06:25,480 Is the consent of Damascus still necessary? 54 00:06:25,840 --> 00:06:32,890 If the operations offer part of the territory not under its control but can be reached by a neighbouring state? 55 00:06:33,190 --> 00:06:35,020 That was the question. 56 00:06:36,880 --> 00:06:49,090 And that question led to the elaboration of the documents that Dapo and I co-authored on the basis of a series of expert workshops 57 00:06:49,090 --> 00:06:57,580 that in fact looks at the entirety of the law regulating humanitarian relief operations in situations of armed conflict. 58 00:06:57,850 --> 00:07:05,860 We started off with a very narrow discussion looking at this consent is required and what amounts to arbitrary withholding of consent, 59 00:07:06,250 --> 00:07:10,450 but realised that it was necessary to look at the entirety of the rules. 60 00:07:12,090 --> 00:07:21,430 And it led to this document. So what we're going to do is I'm going to outline the basic rules of the law regulating relief operations, 61 00:07:21,430 --> 00:07:29,020 and then I'm going to hand over the depo is going to zoom in on some of the issues that were particularly pertinent in in Syria. 62 00:07:29,380 --> 00:07:38,740 So the basic rules are actually pretty straightforward and are the same in both international and non-international armed conflict. 63 00:07:39,970 --> 00:07:48,730 The primary responsibility for meeting the needs of civilians lies with the party that has effective control of the civilians. 64 00:07:49,000 --> 00:07:52,300 And this is something I always have to remind humanitarian actors. 65 00:07:52,930 --> 00:08:00,850 That's where primary responsibility lies. If this party is unable or unwilling to meet the needs, 66 00:08:01,210 --> 00:08:10,570 then offers to conduct relief operations that are exclusively humanitarian and impartial in nature may be made. 67 00:08:12,110 --> 00:08:21,100 The consent of the territorial state is required not to be arbitrarily withheld. 68 00:08:21,700 --> 00:08:29,440 Now the consent is rather, states have no leeway to withhold consent into situations. 69 00:08:29,830 --> 00:08:38,620 The first is situations of occupation. If there are unmet needs in situations of occupation, 70 00:08:39,220 --> 00:08:46,510 the occupying power isn't meeting them and offers to conduct humanitarian relief operations that are important measures are made. 71 00:08:46,720 --> 00:08:53,440 The occupying power has no margin of manoeuvre, no leeway to not agree to an expression. 72 00:08:54,040 --> 00:09:02,560 And the second instance in which states have no discretion to withhold consent is where the Security Council has acted, 73 00:09:02,710 --> 00:09:06,730 taken a binding decision, essentially requiring them to agree to operations. 74 00:09:06,970 --> 00:09:11,800 And we're going to turn to that later, because that's exactly what happened in relation to Syria. 75 00:09:12,610 --> 00:09:17,920 So those are the four steps consent not to be arbitrarily required, not to be arbitrarily withheld. 76 00:09:18,220 --> 00:09:27,340 Once consent has been obtained, all parties must allow and facilitate the rapid, unimpeded passage of humanitarian relief operations. 77 00:09:27,730 --> 00:09:33,580 Now, operationally, most of the problems actually occur at this stage. 78 00:09:34,510 --> 00:09:42,159 Organisations have been given the green light to operate, but then states and organised armed groups fail to do what is required, 79 00:09:42,160 --> 00:09:46,330 what is necessary in order for humanitarians to actually operate. 80 00:09:47,320 --> 00:09:47,890 However, 81 00:09:48,130 --> 00:09:59,110 Syria has very much shone a light on the first set of questions whose consent is required and what amounts to arbitrary withholding of consent. 82 00:09:59,920 --> 00:10:03,510 So we're going to focus on those. Thank you. 83 00:10:03,780 --> 00:10:14,460 So, as you said, we're going to focus on some of those elements of the law or the legal framework that proved to be particularly problematic in Syria, 84 00:10:15,210 --> 00:10:18,930 starting with this question of whose consent is is required. 85 00:10:18,930 --> 00:10:22,980 So we say consent is required, but the consent was not allowed to do so. 86 00:10:23,580 --> 00:10:26,100 So the first question is who's consent is required? 87 00:10:26,670 --> 00:10:34,560 The second issue that arose in Syria and which is continued to be a question of of discussion in terms of the law, 88 00:10:34,980 --> 00:10:39,120 is what does it mean to say that consent arbitrarily withheld? 89 00:10:39,600 --> 00:10:43,690 Are there any criteria by which one can determine that consent of monitoring? 90 00:10:44,960 --> 00:10:49,470 But the second issue I will talk about and then the third issue that I want to talk 91 00:10:49,470 --> 00:10:57,600 about is the question of the legal consequences for unlawfully impeding access, 92 00:10:57,600 --> 00:11:03,000 including unlawfully withholding consent or arbitrarily withholding consent. 93 00:11:03,390 --> 00:11:06,870 So what does the law say? As you indicated, 94 00:11:08,010 --> 00:11:13,620 the critical question in Syria in relation to cross-border operations is the question of whether 95 00:11:13,620 --> 00:11:19,470 humanitarian actors could operate in Syria without the consent of the Syrian government. 96 00:11:19,500 --> 00:11:26,760 What if you follow these steps and you say, well, the Syrian government has acted unlawfully in withholding consent, 97 00:11:28,110 --> 00:11:33,450 what were the consequences of that as natural law consequences for the Syrian government and 98 00:11:33,450 --> 00:11:39,090 consequences for humanitarian actors that actually want to operate within Syrian territory. 99 00:11:39,480 --> 00:11:43,410 So if I go back to this question of whose consent? 100 00:11:44,790 --> 00:11:48,720 So you say consent is that I'll just take a sort of half step back. 101 00:11:49,050 --> 00:11:57,330 We say consent is required in order for humanitarian actors to conduct relief operations in the territory of the state. 102 00:11:57,660 --> 00:12:00,840 Where does that actually come from as a matter of law? 103 00:12:01,200 --> 00:12:05,940 You see this requirement of consent in the additional protocols to the convention. 104 00:12:06,450 --> 00:12:09,630 So there are two additional protocols to the Geneva Conventions of. 105 00:12:10,560 --> 00:12:19,080 Seven. One of those additional protocols deals with international conflicts, the other deals with session conflicts in both. 106 00:12:19,890 --> 00:12:28,680 You have provisions on humanitarian relief operations, and in both sets of provisions, you see this requirement of consent explicitly. 107 00:12:29,430 --> 00:12:34,739 What is clear is that in the context of international armed conflicts, 108 00:12:34,740 --> 00:12:42,870 it talks about these operations being conducted subject to the agreement of the parties concerned having conflicts. 109 00:12:42,870 --> 00:12:53,270 The parties are, of course, states. So it's going to be the concern over a particular state that is is required in a non-international armed conflict. 110 00:12:53,280 --> 00:12:59,430 We're talking about a conflict between a state on the one hand and usually a non-state group on the outside. 111 00:12:59,520 --> 00:13:03,480 It could also be two non-state non-state groups. 112 00:13:04,020 --> 00:13:12,840 And even the the provision in additional protocol two, which deals with non-international armed conflict, 113 00:13:13,260 --> 00:13:20,820 it talks about these operations being undertaken subject to the consent of the high contracting parties concerned. 114 00:13:22,260 --> 00:13:28,620 However, what if you have a non-international armed conflict whereby some of the territory and this is what was going on in Syria, 115 00:13:28,950 --> 00:13:34,710 some of the territories under the effective control of a non-state group and then this operation 116 00:13:34,920 --> 00:13:42,750 coming across the border without passing through the territory that is controlled by by the state. 117 00:13:43,680 --> 00:13:53,100 The complication that arises as a matter of law is that if you look at the Geneva Conventions of 1949, you have a provision of common Article three, 118 00:13:53,550 --> 00:13:55,860 so common to all four Geneva Conventions, 119 00:13:55,860 --> 00:14:04,800 and common Article three provides that impartial and impartial humanitarian body may offer its services to the parties, to the conflict. 120 00:14:06,510 --> 00:14:15,989 And some people interpret Common Article three as implicitly or interpreted Common Article three as implicitly allowing 121 00:14:15,990 --> 00:14:24,060 humanitarian relief operations to be conducted as long as the party to whom the offer was made accepts the offer. 122 00:14:24,480 --> 00:14:31,890 So in their view, if the offer is made to a non-state group and not non-state armed group accepts the offer, 123 00:14:32,610 --> 00:14:40,530 then the humanitarian body is able to operate regardless of the position that's adopted by by the state. 124 00:14:40,770 --> 00:14:49,620 So as long as the operations are transiting through the territory or territory controlled by by the government. 125 00:14:50,940 --> 00:14:57,390 But if you look at the provision that I talked about earlier in the 1977 related protocol, 126 00:14:57,720 --> 00:15:04,560 it's much more it talks about these operations subject to the consent of the high contracting party. 127 00:15:05,130 --> 00:15:15,710 In other words, it identifies whose content is required, and it identifies that as being the consent of the state, the contracting party of seven. 128 00:15:16,320 --> 00:15:20,969 And also, when you think about the interpretation that was given to Common Article three, 129 00:15:20,970 --> 00:15:24,900 which seems to do away with the requirement of the consent of the state. 130 00:15:25,470 --> 00:15:32,720 This seems to be a very significant infringement of the territorial sovereignty of the state concerned. 131 00:15:33,540 --> 00:15:38,009 And it would be all if that requirement or sorry, 132 00:15:38,010 --> 00:15:44,790 that recognition of the state of territorial sovereignty was just done away with in this implicitly 133 00:15:45,270 --> 00:15:54,080 in chronological order in the process that menu was referring to in coming up with this guidance, 134 00:15:54,120 --> 00:15:57,750 we had a series of expert meetings here in Oxford. 135 00:15:58,140 --> 00:16:03,660 The the process, by the way, was one that was conducted, if you like, 136 00:16:03,660 --> 00:16:11,549 under the auspices of the critique of of the UN or Chair of the Office for the Coordination of Humanitarian Affairs of State Commission, 137 00:16:11,550 --> 00:16:15,910 and published the report in the meetings that we had here in Oxford. 138 00:16:16,050 --> 00:16:21,360 The majority of experts were not persuaded by this interpretation that says that 139 00:16:22,680 --> 00:16:28,469 you do not need the consent of the state of the state concerned in particular, 140 00:16:28,470 --> 00:16:33,390 because it mean that in certain situations if you don't need the consent of the state. 141 00:16:33,840 --> 00:16:40,680 And so that would suggest that there will be circumstances where no contracting parties 142 00:16:40,680 --> 00:16:45,960 concerned because there's only one state that's involved in that in that conflict. 143 00:16:46,410 --> 00:16:52,050 So more or less right away, this provision in the additional protocol. 144 00:16:52,470 --> 00:16:56,370 So the position that we adopted in this document, the Oxford guidance, 145 00:16:58,140 --> 00:17:03,810 is one that we think gives due weight to general principles of international law concerning territorial sovereignty, 146 00:17:04,440 --> 00:17:08,850 but also to the state's responsibility towards the civilian population. 147 00:17:09,150 --> 00:17:12,390 So the consent of the state is required, 148 00:17:12,930 --> 00:17:22,770 but it has a more limited range of grounds for withholding consent to relief operations where it is intended for 149 00:17:22,770 --> 00:17:29,010 civilians that are in territory that are under the control or under the effective control of an organised conflict. 150 00:17:29,610 --> 00:17:36,239 So that's this question of whose consent is required, that intrusion be it's the consent of the state party, 151 00:17:36,240 --> 00:17:40,830 even if the state party does not have effective control of the territory. 152 00:17:41,220 --> 00:17:47,160 One issue that arose in Syria was also the question of, well, who do we regard as the state party, 153 00:17:48,000 --> 00:17:59,910 particularly at a point in time in which a number of countries recognised what had hitherto been described as the Opposition, 154 00:18:00,300 --> 00:18:04,320 recognise them as the legitimate representatives of the Syrian people. 155 00:18:05,100 --> 00:18:09,480 So there you have questions of recognition. Who should we regard as the government? 156 00:18:09,870 --> 00:18:14,610 Given that we now see that these groups are the legitimate representatives of of the people? 157 00:18:14,910 --> 00:18:16,160 It's important to remember, though, 158 00:18:16,170 --> 00:18:26,550 that despite this pronouncement and it was a collective pronouncement by a number of states of of sort of recognition of some sort of the opposition. 159 00:18:27,180 --> 00:18:31,800 At no stage actually did most of these states recognise the opposition as the Government. 160 00:18:32,220 --> 00:18:39,550 They continued to recognise. Regime, government, whatever you want to call it, 161 00:18:39,790 --> 00:18:49,690 that was headed by Bashar al-Assad as the government in the U.N. and also in bilateral relations, it was regarded as the government. 162 00:18:49,990 --> 00:18:58,510 So there was some confusion caused by this announcement that these were the legitimate representatives of the people, of the Syrian people. 163 00:18:58,580 --> 00:19:04,780 So at no point would it be legally recognised as the government. 164 00:19:04,900 --> 00:19:09,530 So the question was consent takes you back to the government of Bashar. 165 00:19:11,760 --> 00:19:16,080 Saddam Hussein consent is required, but it must not be arbitrarily withheld. 166 00:19:16,530 --> 00:19:23,940 The next question then is what does that mean and what does it mean to say that consent is being arbitrarily withheld? 167 00:19:24,600 --> 00:19:28,320 I think it's important to note, first of all, 168 00:19:28,470 --> 00:19:33,330 that this requirement that consent must not be arbitrary abuse of power is not 169 00:19:33,330 --> 00:19:38,130 one that is stated in terms in those treaty provisions that I referred to. 170 00:19:38,460 --> 00:19:46,050 So those provisions in the 1977 protocol do not have a reference to arbitrary withholding of consent. 171 00:19:46,080 --> 00:19:49,530 You won't find it if you look at it. However, 172 00:19:49,530 --> 00:19:56,519 this principle that prohibits arbitrary withholding of consent can be derived from a 173 00:19:56,520 --> 00:20:04,080 number of a number of areas which are consistent with the rules of treaty interpretation. 174 00:20:04,680 --> 00:20:11,940 So first of all, that principle is derived from the need to provide an effective interpretation of these treaties. 175 00:20:12,610 --> 00:20:16,290 And this is significant because if you look at the treaty provisions, 176 00:20:16,290 --> 00:20:23,730 they say on the one hand that if certain conditions are fulfilled, these humanitarian relief operations shall be carried out. 177 00:20:23,790 --> 00:20:26,459 So that's the first thing. But on the other hand, 178 00:20:26,460 --> 00:20:35,460 they say subject to the content of the agreement of the deep concern shall be carried out if we meet certain conditions but subject to the equipment. 179 00:20:35,940 --> 00:20:45,809 And what that requires is some degree of balancing exercise between the shall and the consent and the arbitrary withholding 180 00:20:45,810 --> 00:20:53,370 on consent principle is one which gives effect to all aspects of those provisions and doesn't read any part of them. 181 00:20:53,760 --> 00:20:59,290 But then secondly, this principle comes from the drafting history of these provisions. 182 00:20:59,290 --> 00:21:03,360 So if you look at the discussions in the drafting of these provisions, 183 00:21:03,660 --> 00:21:11,730 you can see that there was already at that time this suggestion that consent must not be arbitrarily withheld. 184 00:21:12,300 --> 00:21:13,500 I mean, thirdly, 185 00:21:13,620 --> 00:21:22,800 this principle that says consent must not be arbitrarily withheld comes from practice that is subsequent to the adoption of the protocol. 186 00:21:23,340 --> 00:21:32,040 So it comes from the way in which states and other actors have interpreted these principles. 187 00:21:32,670 --> 00:21:39,050 In the context of Syria. We start to see, in particular in the discussions in the Security Council, 188 00:21:39,060 --> 00:21:44,640 we start to see references being made to arbitrary denial of humanitarian access. 189 00:21:44,940 --> 00:21:48,570 Likewise in the General Assembly, likewise with the Human Rights Council. 190 00:21:49,060 --> 00:21:52,560 What does that mean? That does not be arbitrary. We would have. 191 00:21:52,560 --> 00:21:58,230 What does that actually mean? So in this guidance, 192 00:21:58,230 --> 00:22:08,760 we take the view that this notion of arbitrariness has has three meanings contracted the arbitrarily withheld in one of three circumstances. 193 00:22:09,330 --> 00:22:13,020 First of all, if it is withheld in circumstances, 194 00:22:13,020 --> 00:22:22,110 that would result in a violation of that state's obligations under international law with respect to the civilian population in question. 195 00:22:22,230 --> 00:22:28,650 So if by denying consent, the state would be violating its obligations under international law, for example, 196 00:22:29,040 --> 00:22:35,189 if it would be violating the prohibition of of starvation as a method of warfare, for example, 197 00:22:35,190 --> 00:22:43,470 if it is acting in a manner which is discriminatory, which would violate the rules that prohibit adverse distinction, 198 00:22:44,340 --> 00:22:52,080 it would be arbitrary in circumstances for exactly who referred to medical assistance. 199 00:22:52,440 --> 00:23:02,489 So withholding consent to medical relief operations on the ground that the medical supplies cannot be used to treat enemy combatants would be in 200 00:23:02,490 --> 00:23:12,710 violation of by itself because the wounded and the sick must receive to the fullest extent practicable medical care that is required by the. 201 00:23:14,760 --> 00:23:19,520 So if you are violating the rules of control, that would be an arbitrary withholding of. 202 00:23:20,650 --> 00:23:31,720 Secondly, even where the state might have, if you have if you like, that would quite legitimate reasons for withholding consent. 203 00:23:32,230 --> 00:23:38,500 The withholding of consent must not violate the principles of necessity and proportionality. 204 00:23:39,040 --> 00:23:48,730 In other words, the withholding of consent must not go beyond that which is necessary to give effect to those concerns. 205 00:23:50,620 --> 00:24:00,339 And then thirdly, the manner in which consent is withheld might also be relevant to the third limb of arbitrariness would 206 00:24:00,340 --> 00:24:08,170 be where consent is withheld in a manner that is unreasonable or unjust or lacking in predictability. 207 00:24:08,530 --> 00:24:12,910 So that that goes to the matter of withholding. 208 00:24:14,860 --> 00:24:23,470 So that's the second point. This issue of consent must consent is required, but it must not be arbitrarily withheld. 209 00:24:23,800 --> 00:24:27,260 The third issue is the question of consequences. 210 00:24:27,280 --> 00:24:34,390 And this was, I think, in Syria, one of the main reasons why, as many would say, 211 00:24:34,440 --> 00:24:40,120 the humanitarian community was trying to work out what the legal framework was. 212 00:24:40,240 --> 00:24:49,540 The question is, okay, so what happens? Or at least what does the law allow in circumstances where a state is acting lawfully? 213 00:24:50,110 --> 00:24:55,090 So you get to the point where you state the Syrian government is arbitrarily 214 00:24:55,390 --> 00:25:03,250 withholding consent or arbitrarily denying impeding humanitarian operations. 215 00:25:03,400 --> 00:25:09,570 Then what? So consequences can be viewed from two perspectives. 216 00:25:09,580 --> 00:25:18,670 The first of all, you have the consequences for the act or whether it's a state or an individual who is acting unlawfully. 217 00:25:19,120 --> 00:25:21,130 So what are the consequences for them? 218 00:25:21,790 --> 00:25:31,430 And then secondly, the consequences from the perspective of the humanitarian actors who actually want to engage in the operations. 219 00:25:33,310 --> 00:25:40,750 And I will stick to the second consequences for humanitarian organisations who want to carry out these operations. 220 00:25:41,170 --> 00:25:45,860 What can we actually do here as a matter of law? 221 00:25:45,880 --> 00:25:57,520 It's important to separate out the position of states and international organisations, on the one hand acting as humanitarian actors, if you like. 222 00:25:57,730 --> 00:26:03,130 So states and industrialised nations looking to engage in operations on the one hand, 223 00:26:03,670 --> 00:26:08,350 and then non-governmental organisations on the other hand, that legal position, so to speak. 224 00:26:09,100 --> 00:26:17,320 How soon for states of international organisations, if they go into the territory of another state without the consent of the other state, 225 00:26:17,710 --> 00:26:24,970 they would in principle be acting in breach of international law because they would be violating the territorial sovereignty of the other state, 226 00:26:25,960 --> 00:26:33,700 because they have these obligations under international law to respect the territorial sovereignty of the states. 227 00:26:34,390 --> 00:26:39,790 NGOs, on the other hand, do not have that obligation as a matter of international law. 228 00:26:40,240 --> 00:26:44,080 So they are not bound by the principle of territorial sovereignty of much of international law. 229 00:26:44,470 --> 00:26:48,610 But of course, as a matter of domestic law, they would be acting illegally. 230 00:26:48,970 --> 00:26:53,450 So if they were to go into Syria, then they'd be breaching Syrian law, 231 00:26:54,100 --> 00:27:00,790 possibly even Syria, and subject to the criminal law of Syria, at least in theory. 232 00:27:01,120 --> 00:27:05,680 So you have to separate out those two actors, the states and international organisations. 233 00:27:06,010 --> 00:27:10,270 Just in summary, the question, as a matter of international humanitarian law, 234 00:27:10,270 --> 00:27:17,650 there is no rule that would allow them to go in even if, say, the Syrian government is acting on behalf. 235 00:27:18,490 --> 00:27:21,850 However, as a matter of international law, more generally, 236 00:27:22,330 --> 00:27:32,739 they might in extreme circumstances be cases where you could rely on what you might call defences or what in international law we call circumstances, 237 00:27:32,740 --> 00:27:42,940 precluding one from a sort of defence to an action that's over the life of the two that would be most relevant in this circumstance of necessity. 238 00:27:44,380 --> 00:27:47,970 And secondly, what we call counter countermeasures. 239 00:27:48,460 --> 00:28:01,210 So necessity deals with circumstances where you are taking action to either prevent or put to an end something that would cause a degree. 240 00:28:01,210 --> 00:28:10,150 But even in parallel and here the argument would be that it's a great peril to the international community. 241 00:28:11,630 --> 00:28:14,090 So that's the essence of necessity. 242 00:28:14,450 --> 00:28:23,870 The essence of counter-measures is that you are acting unlawfully to respond to action that is in the first place unlawful. 243 00:28:24,410 --> 00:28:29,750 There are some complications in relation to both of those arguments that conditions that you would have to meet, 244 00:28:30,110 --> 00:28:35,300 not least that they wouldn't justify action that amounts to the use of force. 245 00:28:35,750 --> 00:28:41,180 I want to talk about some of those issues. Good to be back to you. 246 00:28:42,950 --> 00:28:46,580 Thank you, Dapo. So what happened? What happened in Syria? 247 00:28:47,390 --> 00:28:57,020 What happened was that the Security Council took the unprecedented step in the summer of 2014 of adopting a Security 248 00:28:57,020 --> 00:29:06,829 Council that effectively imposed the humanitarian relief operations on Syria in Security Council Resolution 21, 249 00:29:06,830 --> 00:29:15,649 six and five. And here, the Security Council adopted this binding decision that U.N. humanitarian agencies and their implementing 250 00:29:15,650 --> 00:29:25,370 partners authorised to use the routes across conflict lines and across borders to deliver in in Syria. 251 00:29:25,580 --> 00:29:37,580 So in a way, what Security Council did was to set aside the rules of how requiring the consent and saying these operations shall be conducted. 252 00:29:38,570 --> 00:29:43,010 So that's what the Security Council did in 2014. 253 00:29:43,010 --> 00:29:47,120 And this resolution has been renewed every year until now. 254 00:29:47,970 --> 00:29:52,670 And so what happened after the Security Council adopted the resolution? 255 00:29:52,670 --> 00:29:54,890 What happened in practice? It's very interesting. 256 00:29:55,370 --> 00:30:05,120 And so it was both cross line operations within Syria by humanitarian actors who were operational in Syria. 257 00:30:05,390 --> 00:30:14,120 They were authorised to deliver commodities cross line and also from neighbouring states cross border. 258 00:30:14,780 --> 00:30:17,840 So cross line was never used. 259 00:30:18,260 --> 00:30:23,330 I have gone back and speak to the humanitarian actors in the region I met last year. 260 00:30:23,690 --> 00:30:29,330 I've just been there and when I spoke to the humanitarian actors and I said, Why didn't you do any cross line? 261 00:30:29,570 --> 00:30:33,110 Did you even try? Security Council didn't authorise that. 262 00:30:33,380 --> 00:30:39,050 They didn't even realise that there was exactly the same authorisation. 263 00:30:39,050 --> 00:30:40,430 It was never tried. 264 00:30:41,240 --> 00:30:49,670 Now we could discuss why it was never tried, whether there might have been a small window of opportunity when Damascus could have gone with it. 265 00:30:49,730 --> 00:30:56,360 It was obvious that it wasn't because I turned up in 2017, three years on, that suddenly they could stop doing it. 266 00:30:56,510 --> 00:30:59,629 Cross line with regard to cross border, 267 00:30:59,630 --> 00:31:06,440 what the Security Council also did was establish a U.N. monitoring mechanism at three 268 00:31:06,440 --> 00:31:11,089 of the four named crossings and U.N. relief consignment would go through these, 269 00:31:11,090 --> 00:31:16,450 be monitored, be downloaded from one truck and then loaded up into Syrian truck. 270 00:31:16,460 --> 00:31:22,310 And really significant deliveries were carried out in this manner. 271 00:31:24,830 --> 00:31:33,410 Not only did the resolution make it impossible to actually bring commodities into the country for these opposition held areas, 272 00:31:33,830 --> 00:31:40,370 it also had a very interesting indirect effect because precisely because it wasn't 273 00:31:40,610 --> 00:31:45,710 lawful for U.N. agencies to conduct relief operations without the consent of Syria, 274 00:31:46,040 --> 00:31:52,939 it would have been very difficult for them to base themselves in neighbouring states in Jordan and Turkey to do that, 275 00:31:52,940 --> 00:32:00,709 because you also need the consent of these states. The fact that there was this resolution authorising the relief operations made 276 00:32:00,710 --> 00:32:05,360 it possible for U.N. actors to establish what have been referred to as hubs. 277 00:32:05,990 --> 00:32:10,580 So in Jordan and in Turkey, from which they carried out activities, 278 00:32:10,940 --> 00:32:17,809 but also coordinated the activities of a range of other humanitarian actors and goes and carried out important 279 00:32:17,810 --> 00:32:26,750 coordination functions in terms of negotiating access modalities with the Turkish and Jordanian authorities, 280 00:32:27,110 --> 00:32:33,409 troubleshooting and dealing with pooled funds, all the the nitty gritty, the mechanics of humanitarian action, 281 00:32:33,410 --> 00:32:41,600 which are really important and which they would not have been able to do absent this resolution because the operations were lawful. 282 00:32:41,840 --> 00:32:50,780 So it was very interesting last year to speak to the humanitarian actors there and to understand interest in cross line didn't happen at all. 283 00:32:51,230 --> 00:32:59,990 Cross border did occur. It was important both in terms of the commodities that came in and also because it allowed these 284 00:32:59,990 --> 00:33:11,170 hubs to be established and because it also meant that it was possible for U.S. NGOs to partner. 285 00:33:11,260 --> 00:33:17,860 Up with local actors within Syria for the delivery of services that we have overlooked a bit. 286 00:33:17,860 --> 00:33:22,210 Focusing on the law, on the right channels, we focussed on commodities because that's what the law looks at. 287 00:33:22,570 --> 00:33:29,830 But in terms of humanitarian response, the services are as important, if not more than the commodities in some instances. 288 00:33:30,100 --> 00:33:34,479 And this resolution offered this umbrella of protection for humanitarian actors 289 00:33:34,480 --> 00:33:38,980 to also go out and team out with local partners for the delivery of services. 290 00:33:39,790 --> 00:33:46,779 So this has been the effect of this Resolution 2017. 291 00:33:46,780 --> 00:33:49,830 It was it's up for renewal every December 2017. 292 00:33:49,840 --> 00:33:55,640 Last year, it looked as though the circumstances on the ground was such that it was not going to be renewed. 293 00:33:55,660 --> 00:33:59,080 That was very much the concern about by humanitarian actors. 294 00:33:59,350 --> 00:34:14,500 Why? Because Russia had indicated that because of the number of reconciliation agreements that had been concluded between Damascus and local groups, 295 00:34:15,400 --> 00:34:21,430 the areas had been pacified and there was no more need for humanitarian action. 296 00:34:22,150 --> 00:34:26,500 Now, that was not, in fact, the reality on the ground, as I said right at the outset. 297 00:34:26,830 --> 00:34:32,620 Humanitarian assistance has been instrumentalized by all the actors on the ground. 298 00:34:32,620 --> 00:34:42,879 And that was very much what we saw following these reconciliation agreements that are essentially capitulation agreements after the siege, 299 00:34:42,880 --> 00:34:46,060 the surrender, and even once there had been a surrender. 300 00:34:47,020 --> 00:34:59,020 Humanitarian assistance was still being used both to reward communities that had surrendered peacefully and to continue to punish those that hadn't. 301 00:34:59,260 --> 00:35:05,950 So definitely reconciliation hadn't removed the need for continuing cross-border relief operations. 302 00:35:06,220 --> 00:35:10,600 And then there were also, you might have heard of this allegations of diversion of the relief goods that 303 00:35:10,600 --> 00:35:14,620 they were going to and some of it that would make it to terrorist groups there. 304 00:35:14,860 --> 00:35:17,860 So those were the dynamics this time last year. 305 00:35:18,280 --> 00:35:28,989 Eventually, the resolution was adopted unchanged, that people were relieved and they were renewed until January, the beginning of next year. 306 00:35:28,990 --> 00:35:31,990 And we're now discussing renewal once again. 307 00:35:32,440 --> 00:35:37,569 And it's very interesting to see, because the political dynamics are extremely different this year. 308 00:35:37,570 --> 00:35:45,290 While last year, Russia was digging its heels in as to whether or not it was going to authorise a renewal this year. 309 00:35:45,790 --> 00:35:50,230 Russia is actually in favour of extending the arrangements once more. 310 00:35:50,620 --> 00:35:59,170 Why? It is very heavily involved in the last significant pocket of territory under opposition control in the 311 00:35:59,710 --> 00:36:09,400 Northwest and is keen to keep things as stable as possible pending resolution of the situation there. 312 00:36:09,400 --> 00:36:17,230 And obviously relief operations are a piece of the puzzle in keeping the situation as calm as possible. 313 00:36:18,340 --> 00:36:23,020 So it looks as though the resolution should pass. 314 00:36:23,530 --> 00:36:33,250 But again, as a matter of law and practice, what has changed in the past year is the situation on the ground and in particular in the south. 315 00:36:33,610 --> 00:36:38,620 But on the border with Georgia, what we have seen is, yes, 316 00:36:38,620 --> 00:36:46,330 we still had this resolution in place that authorised cross-border operations without the need for serious consent. 317 00:36:46,840 --> 00:36:51,969 But now territory that was just over the border from Jordan under opposition 318 00:36:51,970 --> 00:36:57,460 control has now fallen back within the control of the government of Syria. 319 00:36:58,090 --> 00:37:04,360 So what does that mean as a matter of law and practice in terms of the relief operation? 320 00:37:04,390 --> 00:37:10,510 Yes, you still have the resolution authorising them. But on the other side of the border, you have Syria. 321 00:37:10,810 --> 00:37:20,709 So what do we do as a matter of law, both in terms of the operations going through, but also the indirect assistance that the U.N. is providing? 322 00:37:20,710 --> 00:37:30,490 As I was saying to the the humanitarian actors on the ground, and I think we're passing it over to that before the law and then passing a few hours. 323 00:37:30,490 --> 00:37:35,860 In terms of of the policy, what's happened in the South and what does this mean for the Northwest? 324 00:37:37,390 --> 00:37:47,620 So imagine if the resolution were not to be bringing you would go back to the general legal framework that we were talking about earlier. 325 00:37:47,620 --> 00:37:51,670 So you need the consent of the Syrian government. 326 00:37:51,880 --> 00:37:55,960 And the question would be, would they give their consent? 327 00:37:55,990 --> 00:38:03,850 Let's imagine that they don't give them. And then that would mean that except in those exceptional cases that I talked about, 328 00:38:03,850 --> 00:38:10,810 there'd be no legal basis for being able to take it, even if there was some. 329 00:38:11,230 --> 00:38:17,560 Legal basis as a matter of general international law, these sort of defences that I talked about to be able to conduct these operations. 330 00:38:17,980 --> 00:38:24,640 First of all, you have practical difficulties in any way going into territory that's controlled by the Syrian government without the consent of Syria. 331 00:38:25,570 --> 00:38:31,150 Secondly, for international organisations in particular, thinking particularly of the UAE, 332 00:38:32,320 --> 00:38:38,320 they have their own legal sort of structure or framework and they operate in accordance 333 00:38:38,320 --> 00:38:42,610 with the mandate of the institution which would be contained in the institutions, 334 00:38:42,610 --> 00:38:44,600 a constituent instrument. 335 00:38:45,310 --> 00:38:53,710 And so even if a matter of general international law was lawful, that the defence organisations would not operate outside their own mandate. 336 00:38:54,200 --> 00:38:56,229 And so in the case of the UN in particular, 337 00:38:56,230 --> 00:39:04,810 I think the view that's likely to be taken is that it would not be within our mandate to operate without the consent of the Syrian government. 338 00:39:05,240 --> 00:39:11,590 And so in terms of being able to go in and provide direct assistance, that would probably be the outcome. 339 00:39:12,280 --> 00:39:17,800 Then the question would be, what about doing all the indirect work that I was referring to? 340 00:39:18,190 --> 00:39:28,780 In other words, doing all the coordination, doing all the, if you like, the sort of bilateral funding arrangement, 341 00:39:28,790 --> 00:39:34,000 doing all of those things that do not involve the organisation itself going in, 342 00:39:34,480 --> 00:39:43,390 but where it's sort of stepping back and acting as a coordination, would it be entitled to do that or would an actor be entitled to to do that? 343 00:39:43,870 --> 00:39:54,399 So as a matter of international law, the question that arises is whether or not there is a sufficient link between 344 00:39:54,400 --> 00:40:00,400 the humanitarian relief operation that's going on and the act in this case, 345 00:40:00,400 --> 00:40:04,130 the international organisation or possibly possibly a state. 346 00:40:04,150 --> 00:40:06,160 But if we take the U.N. in particular, 347 00:40:06,430 --> 00:40:16,330 if there is sufficient funding such that we see that the acts of those who are carrying out the activities are attributed to the state, 348 00:40:16,360 --> 00:40:22,839 that the expression of in other words, the actions are such that you could regard them as the actions of the UN, 349 00:40:22,840 --> 00:40:30,430 though it's not the U.N. that's doing it. If the UN's acts of coordination, providing funding, providing all the services, 350 00:40:30,880 --> 00:40:36,850 those things such that we can say that these activities of the NGOs that are actually doing the work of the 351 00:40:36,970 --> 00:40:46,570 action and that depends on the degree of control that is exercised by the UN means over these activities. 352 00:40:48,760 --> 00:40:55,570 I think in all probability the degree of control would not be such that the test is quite a high one. 353 00:40:55,900 --> 00:41:04,270 In other words, the test to say that these are acts of the UN, it would require a high degree of control, the way in which these things work. 354 00:41:04,270 --> 00:41:07,630 It's not likely that that test is going to be met. 355 00:41:08,350 --> 00:41:14,320 So in reality of reality, as a matter of law, international law, 356 00:41:14,770 --> 00:41:19,929 this would mean that the UN would be entitled to or able to carry out these acts of 357 00:41:19,930 --> 00:41:26,230 coordination without the acts of assistance themselves being actually taken away. 358 00:41:26,530 --> 00:41:30,520 So it's matter of law to the UN should be able to carry on doing these things. 359 00:41:31,430 --> 00:41:37,030 And then my Freudian slip of reality occurred to me. 360 00:41:37,330 --> 00:41:45,730 I would say that the fact that every year what the laws have to do that I know you don't like it when I say that in reality. 361 00:41:48,400 --> 00:41:55,330 In reality, what has happened in reality in the South has been actually it's been interesting because as I was saying, 362 00:41:55,420 --> 00:42:00,740 the resolution allowed a number of local partners of Syrian operation, 363 00:42:01,360 --> 00:42:08,140 humanitarian actors to operate in opposition held territory, even though they weren't registered with Damascus. 364 00:42:08,530 --> 00:42:18,159 Once it became evident that the government of Syria was going to regain control of UN agencies, 365 00:42:18,160 --> 00:42:23,490 INGOs from outside spoke to their local partners and it was agreed that it would just put them at 366 00:42:23,500 --> 00:42:32,370 too much risk to attempt to continue to operate unregistered once they were under Syrian control. 367 00:42:32,380 --> 00:42:41,560 Again, I'm sure you must have followed those throughout the response and serious concerns about how humanitarian care providers were being treated. 368 00:42:41,560 --> 00:42:43,480 Medical care providers were treated. 369 00:42:43,930 --> 00:42:54,120 It was just agreed by all it was going to be too risky to attempt to continue to work through the same local partners after Damascus regained control. 370 00:42:54,130 --> 00:43:01,870 So what does this meant in practice? Not because they were such a key part of the response. 371 00:43:02,260 --> 00:43:09,400 No effort was made to negotiate and to continue operations cross-border. 372 00:43:09,760 --> 00:43:12,800 So even though there. Resolution foresaw this. 373 00:43:13,160 --> 00:43:22,220 Even if set aside the resolution, go back to basic rules, negotiate with Damascus, let let's see what Damascus is willing to agree to. 374 00:43:22,480 --> 00:43:24,860 And you can talk about what they'd be willing to agree to. 375 00:43:25,280 --> 00:43:34,939 And it was decided not to try it just because there were no local partners on the ground, because it would be too risky for them to to actually work. 376 00:43:34,940 --> 00:43:37,010 So that's what the South has been. 377 00:43:37,370 --> 00:43:48,560 But it should also be a lesson for what in all likelihood are questions that will also be asked in relation to the north west. 378 00:43:49,070 --> 00:43:58,310 What happens if there isn't a resolution? What happens if you have a resolution but you have Damascus up against the border again? 379 00:43:58,340 --> 00:44:05,210 Yes, I think it's excellent that such is the duty of care towards local partners was taken so seriously, 380 00:44:05,600 --> 00:44:10,610 but it has led to a gap in response and needs listed here in the South. 381 00:44:10,610 --> 00:44:14,480 They're extremely severe. Once you start speaking about the north west, that's what it is. 382 00:44:15,230 --> 00:44:22,340 So I think it's incumbent upon humanitarian actors really to to think about how are they going to deal with this situation? 383 00:44:22,340 --> 00:44:28,730 Are they going to try negotiating for relief operations with Damascus? 384 00:44:29,090 --> 00:44:36,319 What about even if they don't do that, what about this provision of indirect support and assistance, 385 00:44:36,320 --> 00:44:42,500 which, as we've seen, they are entitled as a matter of law to continue providing? 386 00:44:42,500 --> 00:44:46,729 And that's a far more I don't want to use the word political. 387 00:44:46,730 --> 00:44:49,790 It's a policy decision for humanitarian actors to take. 388 00:44:50,120 --> 00:44:55,160 Obviously, it's going to unless Damascus agrees to it. 389 00:44:55,580 --> 00:44:59,059 Damascus is not going to be happy that they're continuing to provide the support. 390 00:44:59,060 --> 00:45:02,290 And essentially, it's going to be a question of of balancing. 391 00:45:02,300 --> 00:45:08,810 I think the value added in terms of responding to significant needs in this area 392 00:45:09,080 --> 00:45:18,080 by continuing to provide this important assistance in support of arrangements, 393 00:45:18,320 --> 00:45:23,000 balancing that with the potential negative impact on their own operations within Syria, 394 00:45:23,570 --> 00:45:31,910 because obviously there may be repercussions if Damascus doesn't want them to carry out these activities and they continue to do so. 395 00:45:32,330 --> 00:45:38,900 It might not grant visas for their operations within, it might make it extremely difficult to operate. 396 00:45:39,230 --> 00:45:46,310 This is the balancing act that humanitarian actors and senior management need to be carrying out right now. 397 00:45:46,320 --> 00:45:53,030 And then a final point is donors staged. That's also an important part of the question at two levels. 398 00:45:53,030 --> 00:46:03,410 One is if there are NGOs who will continue to operate cross-border from the north we're talking now, will donors continue to fund their activities? 399 00:46:04,190 --> 00:46:12,260 QUESTION Mark. And the other question also to donors is donors who were willing to fund operations for a particular 400 00:46:13,190 --> 00:46:19,040 operations or population that was rich cross-border from the south when it was under opposition control. 401 00:46:19,400 --> 00:46:24,500 Now that things have changed and the same population with the same needs is reached through Damascus, 402 00:46:24,500 --> 00:46:28,370 are you institutional donor willing to fund that? 403 00:46:28,790 --> 00:46:36,139 And I think this is very much a question about that commitment to principled humanitarian action, 404 00:46:36,140 --> 00:46:41,450 responding to the needs, regardless of whether they come in cross-border violence. 405 00:46:45,360 --> 00:46:46,190 Well, that's.