Derecho Internacional/ International Law

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The Security Council and Humanitarian Relief in Opposition-Held Territories

Over the past year, the Security Council has repeatedly demanded all parties to the armed conflict in Syria, particularly the Syrian authorities, to allow and facilitate humanitarian relief operations across conflict lines and across borders (see resolution 2139 and a presidential statement) – but with little success. In its latest resolution the UN Security Council decided – for a period of 180 days – “that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and [specific] border crossings … in order to ensure that humanitarian assistance” reaches people in need in Syria. The Security Council also decided to establish a monitoring mechanism in neighbouring countries in order to confirm the humanitarian nature of the relief consignments.
Resolution 2165 was adopted as international humanitarian law experts continue to debate whether aid may be lawfully delivered cross-border to opposition-held territories without the consent of the host state. While some (here and here) contend that the issue is clear-cut – with consent being required – the only thing that does seem clear-cut is the lack of consensus. Others, including one of the present authors, argue a case exists for cross-border assistance without consent under certain conditions. This latter view has been supported by the former President of the International Humanitarian Fact Finding Commission and co-author of an authoritative commentary on the Additional Protocols to the Geneva Conventions, Professor Bothe, in an unpublished study provided to the UN. A group of prominent legal experts have made even bolder claims in a recently published open letter. So while international lawyers continue to sharpen their pencils, resolution 2165 supplements IHL by invoking the authority of the Security Council to fill in the gaps left by IHL’s uncertainties on cross-border aid in non-international armed conflict.

The only international treaty that mentions humanitarian relief in non-international armed conflict explicitly is Additional Protocol II. The Protocol clearly requires the consent of the ‘High Contracting Party concerned’ – meaning the state – for humanitarian relief in non-international armed conflicts. However, Syria is not party to APII. Bothe (above) argues that even under APII, state consent is only required if relief consignments have to cross state-controlled territory. Otherwise the state could not be considered ‘concerned’. Common Article 3 of the Geneva Conventions, the cornerstone of the laws of internal armed conflict, foresees that “an impartial humanitarian body … may offer its services to the Parties to the conflict.” It is widely accepted that the term ‘Parties to the conflict’ in Common Article 3 refers to state and non-state parties. In light of the principle of equality of belligerents, the decision of a non-state party to accept humanitarian relief, it has been argued, should not be dependent on the state’s consent. While some contend that this view is not endorsed by States, the number of third States that have either supported cross-border assistance or acquiesced in circumstances, such as Burma/Myanmar and Sudan, may suggest otherwise.
Under customary IHL as interpreted by the ICRC, the consent of the state is not explicitly required. Parties to the conflict must “allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need” but retain a right of control. This rule applies to state and non-state parties alike, who both have the right to search the consignments and to supervise the delivery in areas under their control. Again, it can be argued that the right of control is only relevant for the party exercising de facto control. Accordingly, cross border aid would be lawful under international law if clearly required by the circumstances on the ground, would be subject to the right of control of the concerned party, and would require the consent of the bordering state from which the aid is delivered.
While deciding on individuals’ access to territory is normally a state privilege, there have also been situations – for example in Sudan – where non-state parties that effectively controlled territory required humanitarians to obtain permits for entering ‘their’ territory. IHL does not address the question to what extent non-state groups can, just like states, require international relief staff to obtain ‘visas’ to deliver humanitarian assistance. Thus, the boundary between the right to control humanitarian relief and access to territory and the obligation to facilitate rapid and unimpeded passage lies at the threshold of where an impediment becomes willful or deliberate.
In practice, such a determination is difficult to make. Thus, the Security Council decided on further measures to facilitate humanitarian relief. Under the present resolution, the loading of relief consignments and possible opening of consignments by customs authorities shall be monitored by a UN mechanism. Thus, it seems that any further controls or administrative obstacles imposed by conflicting parties—even if consistent with IHL—will violate their obligation to “enable the immediate and unhindered delivery of humanitarian assistance” and to remove “all impediments to the provision of humanitarian assistance” as spelled out by the Security Council.
Rather than interpreting or changing IHL, resolution 2165 invokes the authority of the Security Council under the United Nations Charter to make binding decisions without specific reference to other sources international law. As argued here, this is demonstrated by the omission of any mention of a right to access, as well as by the 180-day time limit established by the resolution for cross-border relief. The result is two distinct sources of legal authority – Council decisions and IHL – of which the Council decisions normally prevail. While Security Council decisions on the protection of civilians often coincide with and invoke IHL, they may also extend beyond the normative scope of IHL, or even to some extent contradict IHL.
Unfortunately, in the immensely important field of humanitarian relief operations in non-international armed conflict the interpretation of IHL provisions remains controversial, especially when aid shall be delivered to territory under the effective control of non-state parties. The decision by the Security Council to bridge legal uncertainties by means of a legally binding decision is an important step in the present situation towards the protection of civilians. However, the UNSC is at heart a political beast, and political interference in the subject-matter usually reserved for IHL should not be taken lightly, as IHL already represents a delicate balance of interests.

Source: New York Times

For U.N. Leader on Human Rights, Finish Line Looks Blurry

GENEVA — In her final days as the United Nations high commissioner for human rights, Navi Pillay has neither slowed down nor shied away from controversy.
In mid-July, Ms. Pillay, 72, a South African, released a report setting out the right to privacy under international law and how this right had been violated by the “dangerous habit” of mass surveillance among the intelligence agencies of countries including the United States and Britain.
Days later, at the United Nations Human Rights Council, Ms. Pillay called on Israel and on Hamas, the Islamist faction that dominates the Gaza Strip, to account for possible war crimes and crimes against humanity through indiscriminate attacks on civilians. She criticized Israel’s blockade of Gaza and told world powers that they needed to do “far more than they have done” to end the cycle of violence.
As members of her staff dig through the resulting avalanche of hate mail from both those who support Israel and those who side with the Palestinians, Ms. Pillay is preparing to meet members of the United Nations Security Council next week to discuss conflict prevention. Her tenure will end on Aug. 31 after six years, the longest term that anyone has served in the job since it was created 20 years ago.
Born into apartheid and reared as the daughter of a Tamil bus driver, Ms. Pillay rose to become the first nonwhite woman to open a law practice in South Africa and the first to be appointed as a judge in the nation’s High Court.
“I leave office with a sense of pride,” Ms. Pillay said in an interview last month in her lakeside Geneva office. In promoting human rights, she said, “I have pushed my mandate to the limit.”
As evidence of the growing influence and authority of her office, foreign policy analysts noted that Ms. Pillay had briefed the Security Council more often in her six years in the job than all six previous high commissioners combined.
But Ms. Pillay said she felt a “touch of despair” that the world had gone backward on human rights, citing the drawn-out conflicts in Syria and other regions and the failure of the international community to end them.
“I, and my predecessors and successors as high commissioner for human rights, can only offer the facts, the law and common sense,” Ms. Pillay told the Human Rights Council last month, “however much we are criticized for it.”
Human rights activists give her high marks for speaking up early and vigorously on Syria as well as on a string of crises in the Middle East, Africa and, most recently, Ukraine. Reports from commissions of inquiry, which Ms. Pillay set up to document atrocities in Syria and North Korea, are seen by many diplomats as authoritative, groundbreaking documents that provide a solid basis for eventually bringing those responsible to justice.
“Her record over all is a very strong one,” Peggy Hicks, advocacy director of Human Rights Watch, said in an interview from New York. “She has spoken out forcefully and effectively. She has been a powerful presence pushing for the world and the U.N. system to do more on those issues.”
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Some of her predecessors showed more deference to governments, noted Michael Ignatieff, a professor specializing in government and human rights at Harvard’s John F. Kennedy School of Government. Ms. Pillay has shown no such inhibitions.
“Now, in 2014, we have an office that is often robustly critical,” Professor Ignatieff, a former member of the Canadian Parliament, said in a telephone interview. “It didn’t begin with her, but it’s been accelerated by her. This is an important development, and she should be praised for that.”
In the process, Ms. Pillay has attracted heavy criticism, most publicly and ferociously by governments whose actions, she insisted, warranted independent international investigation, particularly Israel, Sri Lanka and Syria. Her statements, she said, invariably brought ambassadors to her office to vent their capitals’ anger or disappointment.
Syria’s ambassador to the United Nations, Bashar al-Jaafari, called her a “lunatic,” and the country’s state-run media denounced her as a “Tamil tigress,” implying racial bias and sympathy for separatist Tamil Tiger rebels. Eviatar Manor, Israel’s ambassador to the United Nations in Geneva, told her last month that she, like the Human Rights Council, had “failed dismally” in protecting the human rights of Israelis.
The pressure never worked, Ms. Pillay said, because “I feel strength in the fact it is a mandate created by all members of the U.N. because they felt the need to have an independent voice.”
Still, there has been a price. In the job, she has visited 50 or 60 countries — she has lost count — but some prominent locations never made it onto her itinerary. China invited her to visit but could never find a suitable date. “I should think it’s because they see me as someone who speaks out for victims,” Ms. Pillay said.
The United States never invited her, despite her asking to visit several times in hopes of taking up “the many issues that trouble us,” she said, specifically drone strikes and targeted killings.
“That does not show the United States in a good light,” Ms. Pillay said. To preserve its authority in the world, she said, America cannot exempt itself, or its allies, from the standards it invokes to chastise other countries.
Such bluntness appears to have cost Ms. Pillay in other ways. She acknowledges the American backing that she received for some of the causes she pursued in the Human Rights Council. But in 2012, when her first, four-year term as commissioner ended, she did not receive a full second term. Diplomats cited by the news media at the time said that American displeasure with her criticism of Israel had been a factor in that decision.
Human rights commissioners are appointed by the United Nations secretary general, subject to approval by the General Assembly, but major powers have a decisive say. Ms. Pillay was offered, and accepted, two more years in the job, faring better than any of her predecessors, none of whom received an extension. But, she said, the half-measure was “not accidental.”
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Ms. Pillay said she had been told that certain countries did not want a high commissioner who was too independent. Other governments viewed the work of her office with suspicion. Some feared that she was pushing for broader democratic rights, and others challenged her support for lesbian, gay, bisexual and transgender causes. They all argued that she should avoid creating new rights. “That came up again and again,” she said.
What troubled Ms. Pillay most, she said, was the failure of the United Nations and its member states to allocate the funding for her office to keep up with the workload created by ever-growing demands.
From a handful of staff members in New York 20 years ago, the human rights division has grown into an operation that maintains a presence in 58 countries, she said, yet it receives less than 3 percent of the United Nations’ budget. “No organization can work like that,” she said.
Her agency’s field offices, which monitor events, train officials and help draft laws or constitutions, are “where we translate the rhetoric of human rights into action,” Ms. Pillay said. As an example, she said that Egypt, after an international outcry over recent rulings in its courts, had requested training for its judges. But her office is so strapped for cash, she said, that she has been unable to answer 20 government requests for assistance.
“That’s my biggest disappointment and fear for this office,” Ms. Pillay said, “that lack of resources will cripple the work.”

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