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Would It Be Lawful For European (or other) States to Provide Arms to the Syrian Opposition?

Published on January 17, 2013        Author: 

A week ago (January 10), the United Kingdom’s Foreign Secretary, William Hague gave a speech in Parliament in which he appeared to suggest that European Union countries should consider providing arms to the opposition in Syria (see BBC reports and video here and here). From the lawyer’s perspective, one key question that arises is whether it would be lawful, under international law, for States to provide weapons to the Syrian opposition. In his speech William Hague stated that “we are determined that all our actions will uphold UK and international law, and support justice and accountability for the Syrian people themselves.” But would this be so were the UK to supply arms to the Syrian opposition? What arguments can be used to support the legality of the provision of arms and how strong are those arguments? In this post, I consider the possible legal arguments that may be made by European States. As I explain below, each of these arguments has considerable problems.

At present, European Union sanctions on Syria include a ban on transferring arms to that country. In his speech, Mr Hague noted that the EU sanctions regime on Syria includes an arms embargo and that in December the UK had argued that the sanctions regime should be reviewed after three months (i.e in March 2013) rather than after twelve months. He then went on to state that:

 “ . . . European countries now have the flexibility to consider taking additional steps to try to save lives if there is no progress in the near future. . . . [W]e must keep open options to help save lives in Syria and to assist opposition groups opposed to extremism if the violence continues. We should send a strong signal to Assad that all options are on the table. We will therefore seek to amend the EU sanctions so that the possibility of additional assistance is not closed off.”

The Illegality of Supporting Armed Opposition Groups

The starting point of analysis is that the provision of arms by one State to an armed opposition group fighting against another State is, in principle, a breach of the prohibition of the use of force set out in Art. 2(4) of the United Nations Charter, and also of the principle prohibiting intervention by States in the internal affairs of other States. In the Nicaragua case (1986), (para. 228) the International Court of Justice (ICJ) examined both principles in the context of US military support for the contra rebels operating in and against Nicaragua. The Court held that:

“while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua . . . [T]he Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua . . . does not in itself amount to a use of force.”

It went on to state that:

“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State. . . Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention. which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any  moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law.” (para 246)

The Court’s view that arming rebel forces is a breach of international law finds support in UN General Assembly Res. 2625 (1970) which states that:

“Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State . . . when the acts referred to in the present paragraph involve a threat or use of force.”

So, the question is whether there are any relevant exceptions to the prohibition of the use of force that would apply to the Syria situation.

Are There Relevant Exceptions to the Principle Prohibiting Support to Opposition Groups?

It seems to me that there are at least four arguments that European States might deploy. However, it is not at all clear that any of these has great weight as a matter of law.

1. It might be argued that the situation in Syria constitutes such a humanitarian catastrophe that provision of arms to the Syrian opposition might be justified under the doctrine of humanitarian intervention. The main problem with this argument is that there is very little State support for the view that international law permits States to use force in other States on humanitarian grounds. The UK is of course one of the few States that does accept that international law provides a right of humanitarian intervention. However, this view has been rejected by the vast majority of States. See for example the 2000 Declaration of the South Summit by the G77 composed of about 130 member States [‘We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law’. para. 54 ]. Also, even other European States have failed to advocate such a right. In the ICJ proceedings regarding the Legality of the Use of Force (by NATO in Yugoslavia), only the UK and Belgium expressly relied on the doctrine of humanitarian intervention. Other NATO countries refrained from doing so.

In short, there is little opinio juris  on which a doctrine of customary international law might be based. Although the matter has not been expressly considered by the ICJ, the Court did seem to reject the doctrine of humanitarian intervention in the Nicaragua case (1986). In the case, the Court stated that: “while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect.” (para. 268). The argument that international law today allows for unilateral right of humanitarian intervention is very weak. No such right exists in international law as it currently stands.

2. A second possible argument that may be made is that the bar on providing support to opposition groups does not apply where foreign States are providing support to a government involved in a civil war. It has been argued by some, including by the UK (UK Foreign Policy Document No. 148, 1984), that although international law allows governments to request foreign military assistance, assistance is prohibited in situations that amount to a civil war (see generally Gray, International Law and Use of Force, Ch. 3). This argument is based on the view that where a conflict can be regarded as a civil war, it would be contrary to the principle of self-determination to support a government that is losing its grip on power. Those who hold this view also argue that assistance in civil war situations is, however, permitted in cases where there has been counter-intervention (by a foreign State) in support of the other side of the conflict. Usually, this latter view is used to justify assistance to a government in cases where a foreign government is providing assistance to the opposition group.

The argument about civil wars could, in relation to the Syria situation, be extended to suggest that in civil war situations there is a degree of equality between government and opposition (which is what prohibits assistance to either side) and that this equality suggests that foreign intervention in support of either side should allow counter invitation in support of the other. On this view, intervention, say by Russia, in support of the Syrian government would allow intervention in support of the Syrian opposition.

It is not clear that either step of this argument is right. It is not at all clear that the view that international law (the jus ad bellum) treats interventions in civil war differently from any other situation has support in State practice. There seems to be limited evidence that States accept that they are obliged not to support governments in a civil war situation. In the Syria case no one seems to be suggesting that it is illegal to provide support to the Assad government, though many think and have said that States ought not to do so. Moreover, it is not even clear what would constitute a civil war in this area of the law. Furthermore, the ICJ in the Nicaragua case – a case that would seem to deal with the civil war situation – did not make any reference to this rule.

Even if one accepted that there were special rules for civil wars it would not follow that intervention on behalf of the government should justify intervention on behalf of an opposition group. For one thing, States have not hitherto claimed that international law provides a right to support opposition groups, except in cases of self defence. Sure, States have provided arms to opposition groups but they usually do so covertly and without arguing that their conduct is legal.

3. A third argument that may be made is one that I set out in a previous post on Syria. This is the argument that that international law permits State support for groups fighting for self-determination and that this permissible support includes provision of weapons. This argument is based on the practice of States during the decolonization era, when there was extensive practice of States providing assistance, including weapons and other military assistance, to national liberation movements fighting in self-determination struggles against colonial or racist regimes. I provide an outline of this argument in a previous post. In summary, the argument would run as follows: (i) a rule allowing provision of weapons to national liberation movements fighting in self-determination struggles was established in the 1960s and 70s; (ii) this rule extends to all self-determination cases; and (iii) Syria is a situation where a people are seeking to exercise their right to self-determination such that it is lawful to support the legitimate representatives of that people, including with weapons.

The first part of the argument above (i) did receive the support of the majority of the General Assembly in a series of resolutions and may well represent international law. The second and the third (ii) and (iii) are more problematic. As I explained in my previous post, the recent recognition of the Syrian opposition as “legitimate representatives of the Syrian people” might be viewed as recognition that Syria ought to be seen as a self-determination struggle. Certainly that language is borrowed from previous self-determination scenarios. However, the States that have made such a recognition have not been explicit in saying that they are applying a self-determination framework.

Perhaps the biggest problem would be extending the view that principle that allows provision of weapons in cases of decolonization to cases like Syria –even if it is regarded as self-determination case. Such a view would carve a big hole in the prohibition of the use of force and the principle of non-intervention, especially as international law has not developed clear criteria for determining which entity is a legitimate representative a people.

4. An alternative approach that may be taken by European States is to upgrade the recognition of the Syrian opposition from being the legitimate representatives of the Syrian people to recognition of the Syrian opposition coalition as the government of Syria. European States could then argue that are acting in support of the Syrian government. This would not be an exception to the principle of not providing weapons to opposition groups as the point of this argument would be that the Syrian coalition is not a non-State armed group but actually the government.

European States might what to repeat what many did in Libya when they provided early recognition of the Libyan National Transitional Council as the government of Libya while Gaddafi’s government still controlled much of Western Libya (see previous post on this). Recognition of the Libyan NTC as the government of Libya when it did not have effective control of most of Libya was premature and therefore of dubious legality. Similar early recognition of the Syrian opposition as the government of Libya would also be premature until a point when that coalition has sufficient control of Syria. Moreover premature recognition of governments coupled with assistance to that “government” would set a very bad precedent indeed. It would also create a big hole in the prohibition of the use of force, allowing States to circumvent the rule by simply recognising groups that are not in reality the government.

In conclusion, none of these arguments provides a very strong basis for arming the Syrian opposition.

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9 Responses

  1. Jordan

    Dapo: the best argument is #3 b/c the UK, France, the US, the Arab League, etc. have recog. that there is a new legitimate representative of the Syrian people. They are indeed engaged in a permissible revolution and self-determination struggle, as was the case in Libya at a certain point. Another argument is that the people of Syria, represented by their legitimate representative, have a right of self-defense (and collective self-defense at their request) against the entity that is engaged in armed attacks on the Syrian people.
    With respect to what is or is not simplistically the internal or external affair merely “of” one state, well of course self-determination, self-defense, crimes against humanity, war crimes, violations of human rights, etc. are not simplistically merely the affair “of” a single state.
    This armed conflict has also spilled oover into Turkey, at least, and Turkey also has a right of self-defense against armed attacks emanating from Syria (and to collective self-defense at their request). My article on the Arab Spring, etc. will be printed soon at Cornell Int’l L.J. and it addresses permissible revolution, self-defense, self-determination.

  2. Jordan

    p.s. too many writers seem to be affected by a start of the 20th Century disease that can close the eyes and ears to the reality that international law has never been merely state-to-state and that there have always been formal actors other than the state (e.g., nations, tribes, free cities, belligerents, and later peoples, insurgents, etc.). Even Oppenheim, who spread the disease, admitted that several European writers disagreed with his state-oriented “positivist” notions and the UK had, for example, around that time some 500 treaties with a nation and various tribes in Africa. The U.S. still has treaties with some Indian nations and tribes. The reality of non-state actor participation in international law (in various ways) can be appreciated in minor part from http://ssrn.com/abstract=1701992
    we need to get out of the state-oriented positivist box type thinking (and at least look over the edge of the top of the box to see the real world patterns of human expectation and behavior that condition both treaty-based and customary international law.
    When the UK recognized the Confederate States of American as a “belligerent” and not a state, it did so for certain purposes. The United States also recognized that it was in a war with the non-state actor (the CSA) and applied the customary laws of war to the conflict. When we had our Revolution against the oppressive Brits, we (and the French at least) expected that our revolution was lawful, especially with respect to the rights of man (Patrick Henry used the phrase “human rights” in 1788 regarding the need for the Bill of Rights in our new Const.). The French, of course, assisted us in our self-determination struggle (ok, it was anti-colonial in some respects, but that is not determinative — as if the right of revolution and the concomitant right of self-determination now enshrined in the UN Charter in arts. 1 and 55 were ever permissible only in an “anti-colonial” context (a false first premise).
    Food for thought.

  3. […] Interesting post over at EJIL: Talk! on Would it be lawful for European (or other) States to Provide Arms to the Syrian Opposition? […]

  4. Jens Iverson

    Dear Dapo,

    I’d welcome your thoughts as to the applicability of Douglas Guilfoyle’s 2009 EjilTalk post (and subsequent comments) to your post:

    http://www.ejiltalk.org/humanitarian-intervention-neither-right-nor-responsibility-but-necessity/

    One might characterize this type of argument as a response to your first line of analysis. In short, one could argue that while there is not sufficient evidence to find a customary right of humanitarian intervention, arming a belligerent group might be defensible as necessary to prevent other violations of international law. This acknowledges that without such a necessity defense, such an act would violate the sovereignty of the state and the principle of non-interference.

    I admit this is a narrow window:

    ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts
    Article 25. Necessity
    1. Necessity may not be invoked by a State as a
    ground for precluding the wrongfulness of an act not
    in conformity with an international obligation of that
    State unless the act:
    (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril;
    and
    (b) does not seriously impair an essential interest of
    the State or States towards which the obligation exists,
    or of the international community as a whole.
    2. In any case, necessity may not be invoked by a
    State as a ground for precluding wrongfulness if:
    (a) the international obligation in question excludes
    the possibility of invoking necessity; or
    (b) the State has contributed to the situation of
    necessity.

    But isn’t it possible that aid to the Free Syrian Army threads that needle? Obviously the Syrian government would object at every subclause. I’m not sure if there’s any wiggle room to be found in distinguishing between the interest of the government and the state at this point.

    The Syrian government might also probably bring up:
    Article 26. Compliance with peremptory norms
    Nothing in this chapter precludes the wrongfulness
    of any act of a State which is not in conformity with an
    obligation arising under a peremptory norm of general international law.
    … and argue that aiding rebels amounts to aggression, a violation of a peremptory norms. I’m not so sure.

    Thanks in advance for your thoughts. Nice post.

    Jens

  5. Jens Iverson

    [Edit] *This acknowledges that without such a necessity defense, such an act would [wrongfully] violate the sovereignty of the state and the principle of non-interference.

  6. Jordan

    Jens: the Syrian Govt.? — the rebels? Three permanent members of the S.C., Turkey, the Arab League, etc. have recognized that another entity is the legitimate representative of the Syrian people — so now the prior govt. becomes “the rebels” and the legitimate govt. has changed. In any event, self-determination is the right of the people, not a govt. as such. So has it become unlawful for Russia to supply arms to the prior govt./rebels? At least it could be argued that Russia’s intervention is in violation of the right of self-determination of the Syrian people.

  7. Jens Iverson

    Dear Jordan,

    I agree it’s interesting that there’s this trend of recognizing a group as a “the legitimate representative of the Syrian people.” That should be included in any analysis of self-determination. It isn’t the same as recognizing them as the government though. I’d also be curious to read more about the past and present practice of recognition in various forms – state, government, belligerent, legitimate representative of the people of a state, willingness to have diplomatic relations… I think state practice is continuing to change as to how they deal with this difficult but interesting subject.

  8. Jordan

    perhaps now there are, de facto at least, two govts. and a belligerency in Syria (which would mean that there are de jure two govts.). Please see my Va. J. Int’l L. writings, http site in message above re: formal actors other than states such as nations, tribes, peoples, belligerents, and more recently in human histroy, insuregents, etc. Several of these have had govts. and most have had international agrements with states.

  9. […] "Would It Be Lawful For European (or other) States to Provide Arms to the Syrian Opposition?", Dapo Akande Akande examines four arguments for the legality of Western states providing Syria's opposition with weapons on the European Journal of International Law Talk! blog, concluding none "provide a very strong basis" for the legality of such an action and that international law is often too underdeveloped to support even the strongest pro-arms arguments. […]