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

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.