Does International Law Close Open Borders for Humanitarian Aid?
The humanitarian catastrophe in north-west Syria, caused by the protracted war and exacerbated by the recent earthquakes, is once again drawing international attention to Turkish-Syrian border crossings. The dichotomy between ‘open’ and ‘closed’ border crossings dominates the vocabulary used in various media. Bab al-Hawa (Cilvegözü) was portrayed as the only ‘open’ border crossing until the news broke on 13 February 2023 that Bashar al-Assad decided to ‘open’ two additional border crossings [Bab al-Salameh (Öncüpınar) and al-Ra’ee (Çobanbey)] for an initial period of three months. All other checkpoints at the border between Syria and Türkiye are either explicitly or implicitly portrayed as effectively ‘closed’ or ‘shut’ (cf. e.g. here, here, here, here and here)
This post argues that this common portrayal of border crossings in north-west Syria as either ‘open’ or ‘closed’ is misleading. Most of the border crossings (previously) labelled as ‘closed’ are in fact operational and can legally be used for cross-border humanitarian relief operations without Syrian approval. As they are located in regions occupied by Turkish(-backed) forces, international humanitarian actors [including the United Nations (UN)] could under Art. 59 (1) of Geneva Convention IV rely on the consent of Türkiye, which is under an “unconditional” obligation to consent to cross-border operations. As the post will ultimately highlight, the UN’s choice not to invoke this provision unnecessarily benefits al-Assad at the expense of the hard-hit population.
A Misleading Depiction
The common portrayal of the status of the border crossings is shaped more by the UN’s legal perspective than by the realities on the ground. Bab al-Hawa is located in the Syrian Governorate of Idlib, the border region of which is militarily controlled by the Islamist organisation Hay’at Tahrir al-Sham (HTS). It is the sole of the four border crossings that were authorised by the Security Council in Resolution 2165 (2014), whose authorisation remains in force [last extended by Resolution 2672 (2023)]. From the UN’s point of view, it is therefore the only crossing through which UN agencies can deliver humanitarian relief to non-government-controlled areas in north-west Syria. However, on the ground, it is by no means the only one that is effectively open. Many other border crossings into areas of north-west Syria controlled by Türkiye and Turkish-backed forces can also be passed.
Hence, Saudi Arabia’s Relief Agency was able to send eleven trucks carrying more than 100 tons of food and shelter construction materials through the Zeytin dali (Olive Branch) border crossing just 15 km north of Bab al-Hawa on February 11th. This checkpoint was built by Türkiye following its ‘Olive Branch’ military operation and opened in 2019. Bab al-Salameh is another case in point. It was one of the checkpoints initially covered by the Security Council authorisation, however, the authorisation for its use was no longer renewed in July 2020. According to the accounts provided by both the UN and the media, Bab al-Salameh therefore had to ‘close’ at that point. But while the UN convoys disappeared, other trucks carrying humanitarian aid and commercial goods as well as Turkish (aid) workers by and large continued to flow across the border (see England and Pitel; Al-Hilu, p.18f.; Hatahet and Aldassouky, p.2f.). Even the UN OCHA’s own reports depicted it as ‘open’. It is against this background that al-Assad now ostensibly ‘opened’ Bab al-Salameh. His words of approval did not change the situation on the ground in any way – he does not control the border posts on either side of the border. All he could do was influence the UN’s legal assessment.
Choices Made by the UN
If these border crossings can be qualified as ‘closed’ to humanitarian aid at all, then it is only in terms of international law. Contrary to public perception, it is not international humanitarian law or Security Council resolutions that dictate or compel the opening of otherwise closed border crossings. It is international law that closes otherwise open border crossings. Worse, it is not necessarily international law as such, but the choices made by the UN Office of Legal Affairs in interpreting and invoking the applicable law, i.e. international humanitarian law.
The UN’s position that cross-border humanitarian relief always presupposes either the consent of the (de jure) government or an authorization by the UN Security Council is not an accurate reflection of this law. Rather, with respect to north-western Syria, a legal distinction needs to be made between cross-border operations into areas controlled by independent non-state armed groups, i.e. the HTS, and those into areas controlled by Turkish(-backed) forces. The former mainly concerns Bab al-Hawa, the latter the crossings Zeytin dali, Bab al-Salameh, al-Ra’ee, Jarabulus, Tell Abyad and Ras al-Ain.
Consent to International Relief in Non-International Armed Conflict
Regarding the areas controlled by non-state armed groups, Rebecca Barber pointed out on EJIL:Talk! that the UN’s interpretation may be “overly narrow”. There are certain arguments that in relation to these areas, the consent of the non-state armed group in control is sufficient. The most convincing of these arguments, in my opinion, is based on the inapplicability of Art. 18 (2) of Additional Protocol II to the Geneva Conventions (AP II) in relation to the armed conflict in Syria (Sproson and Olabi and Matyas, p. 458). Art. 18 (2) AP II stipulates that international relief actions in non-international armed conflicts are “subject to the consent of the High Contracting Party concerned” and is thus relatively straightforward in requiring the government’s consent. Syria, however, has only signed and ratified Additional Protocol I, not Additional Protocol II. Accordingly, the only applicable provision is Common Article 3 (2) of the Geneva Conventions, which is worded much more vaguely. It can be read to imply that only the consent of the respective “party to the conflict” is required. But the whole truth is, that this is far from consensus in international legal scholarship on the issue (see e.g. Akande and Gillard). That is why some authors resort to arguing that non-consensual humanitarian assistance does not violate a state’s territorial integrity in the first place, or to invoking necessity as a circumstance precluding wrongfulness to reach the same result (Barber and Gillard, p.372).
Turkish Occupation of Northern Syria
In contrast, there is much greater consensus on the question of whose consent is required in situations of occupation. Although it has not yet been raised, this is the pertinent question in relation to all the crossings into areas effectively controlled by Turkish(-backed) forces. Based on Article 42 of the 1907 Hague Regulations, an occupation is established when a State, through the presence of its armed forces and the ability to exercise authority in place of the territorial sovereign, exercises effective control over a foreign territory without the sovereign’s consent. In case this effective control is exercised by armed groups, it is sufficient for the State to have overall control over these groups to be considered an occupying power (Ferraro).
Following the military operations Euphrates Shield (2016), Olive Branch (2018), and Peace Spring (2019), larger parts of the northern Aleppo governorate and other areas along the border must be considered occupied by Türkiye (see Lieblich and Benvenisti, pp.2,51; Gal, pp.37-40; RULAC, Reeves and Wallace). In these areas, Türkiye exercises effective control through its armed forces and through the Syrian National Army, a coalition of armed groups assembled, trained, equipped, and paid for by Türkiye. While serious in-fighting between those armed groups and clashes with HTS persist, Türkiye ultimately retains the authority and sets boundaries for their operations. For instance, when HTS captured Afrin in October 2022, Türkiye intervened and pressured the parties into a ceasefire agreement that required them to return to their previous positions. In terms of civil administration, the adjacent Turkish provinces supervise the local councils in the area and provide them with monthly budgets. Various Turkish line ministries, universities and service providers are all present in the occupied territory, and the Turkish lira has become the dominant currency.
There has been some uncertainty as to whether the Syrian government has retroactively consented to Türkiye’s control over the territory, thereby ending its classification as an occupation under international law. This uncertainty stems from several Türkiye – Russia agreements between 2017 and 2020 which freeze the status quo (see here and here). However, these agreements were not formally signed by Syria and are better understood as ceasefire agreements, that do not amount to consent (Lieblich and Benvenisti, p.73). Rather, Syria has only recently made ending the “occupation” a condition for normalizing its relations with Türkiye. Hence, the law of occupation applies to the Turkish-controlled border regions in northern Syria, among which are the areas closest to the epicentre of the earthquake.
Humanitarian Assistance Under the Law of Occupation
Art. 59 (1) of Geneva Convention IV stipulates that “[i]f the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population and shall facilitate them by all the means at its disposal”. Hence, under Art. 59 (1) Geneva Convention IV consent by the Occupying Power is necessary but also sufficient (see here and here, para. 2881f.). The ICRC commentary explicitly notes that “the opposing party to the international armed conflict does not need to be asked for its consent” to relief operations that take place in the adversary’s territory or in territory controlled by the adversary. This finding is nearly uncontested in international legal discourse. Personally, I only know of one author who contests it:
“While this position may be valid from a very narrow perspective of IHL, under general international law, even if a part of the State’s territory is occupied, the occupied State still exercises sovereignty over the occupied territory. Hence, for example, if relief personnel of an international organization enter that occupied territory without the approval of the occupied State, it could be a breach of the sovereignty of that State” (Okimoto, p.127)
It should come as no surprise that the author works as legal officer in the UN Office of Legal Affairs – although he was not writing in that capacity, of course.
So, the UN could simply rely on Türkiye’s consent to use Zeytin dali, Bab al-Salameh, al-Ra’ee, Jarabulus, Tell Abyad and Ras al-Ain for cross-border humanitarian relief operations. If, as is currently the case, the population is inadequately supplied, Türkiye is even under an “unconditional” obligation to consent.
Of course, invoking Art. 59(1) Geneva Convention IV and publicly calling Türkiye’s presence in northern Syria an occupation is not without political controversy. During Operation Peace Spring (2019), Erdogan even threatened that there would be consequences if the European Union labelled it as such. Nevertheless, Erdogan is likely to continue to co-operate with the UN and other actors involved in cross-border aid. As he intends to resettle many more Syrian refugees in the region, he has a vested interest in improving the humanitarian situation. The example of Saudi Arabia’s aid convoy already indicates that he is willing to agree to international relief operations that are not authorised by the Security Council.
Conversely, by choosing not to invoke Art. 59 (1) Geneva Convention IV [and choosing the more conservative interpretation of Common Art. 3(2)], the UN Office of Legal Affairs unnecessarily affords al-Assad leverage. It is these choices that allow al-Assad to ‘open’ already open border-crossings. It is these choices that allow him to benefit from the legitimising effect that comes with the media coverage that he so desperately seeks in his quest for rehabilitation. And ultimately, these choices contribute to people receiving less humanitarian relief than they could.