The supply of arms to opposition groups in Syria and international law

The Guardian newspaper has made available the text of a discussion paper by the Foreign Ministry of Austria circulated on 13 May 2013 to EU member states, forcefully rebutting British and French arguments for amending the European embargo on Syria to allow weapons shipments to the rebels.

The document, entitled ‘SYRIA: Austrian Position on Arms Embargo’, first puts forward several political and security arguments, among them the following (summary only):

 –          Lifting the EU arms embargo undermines the EU-Russia understanding that opens a window of opportunity towards a renewed political process.

 –          The ‘Syrian National Coalition for Revolutionary and Opposition Forces (SOC)’ does not have full authority and control over all armed opposition groups and cooperates with groups which include various extremist and terrorist fighters.

 –          There are more than enough weapons in Syria.

–          The supply of arms to the opposition by EU member states constitutes an additional threat to the security of UNDOF [United Nations Disengagement Observer Force, which supervises the implementation of the 1974 disengagement agreement and the ceasefire between the Israeli and Syrian forces] peacekeepers, including from Austria.

But the most interesting part of the paper argues that the supply of arms to the Syrian opposition would be in breach of international law and EU law.

The main arguments developed in that respect deserve being quoted in full (I have only made minor typographical changes to the text and omitted certain developments):

1. The supply of arms to the Syrian opposition would amount to a breach of the customary principle of non-intervention and the principle of non-use of force under Art. 2 para. 4 of the UN Charter.

The principle of non-intervention is firmly established in international law. In 2007, former UK Legal Adviser Sir Michael Wood put it in a nutshell: “Intervention on the side of those opposing the Government […] is clearly prohibited” (The Principle of Non-Intervention in Contemporary International Law, Speech by Sir Michael Wood at a Chatham House International Law discussion group meeting held on 28 February 2007). In the 1984 Nicaragua Case the International Court of Justice (ICJ) rejected any alleged right for States to intervene in support of an internal opposition in another State, whose cause appeared particularly worthy for political or moral reasons: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law” (para. 209). The ICJ also stated that acts constituting a breach of the customary principle of non-intervention would also, if they directly or indirectly involve the use of force, constitute a breach of the prohibition not to use of force in international relations, as embodied in Art. 2 para. 4 of the UN Charter. The continuing relevance of the Nicaragua Case was confirmed by the ICJ in its 2005 judgement in the Case concerning Armed Activities on the Territory of the Congo: “In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State” (para. 164).

2. The supply of arms to the Syrian opposition would violate EU Council Common Position 2008/944/CFSP on the control of arms exports by EU Member States.

All EU Member States have agreed to abide by Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment when assessing applications to export items listed in the agreed EU Common Military List. An objective assessment of the Criteria in Art. 2 of Common Position 2008/944/CFSP according to the agreed guidance of their interpretation and implementation in the EU’s User’s Guide (User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, Doc. 9241/09, 29 April 2009) must lead to a denial of any export licence applications for the envisaged supply of arms to the Syrian opposition:

  • Criterion 2(c) (human rights and humanitarian law): Member States shall deny an export licence if there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law. The UN Commission of Inquiry reported that “war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti-Government armed groups” (Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/21/50, 16 August 2012).
  • Criterion 3 (internal situation): Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. The User’s Guide does not foresee that arms would be supplied to opposition groups involved in an armed conflict and places particular attention on the role of the end-user in a conflict.
  • Criterion 4 (regional peace, security and stability): Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. Despite the 1974 cease-fire agreement, Syria and Israel remain in a state of war, which was recently reignited by Israeli air and missile strikes. The Syrian opposition has not declared to respect the cease-fire, the disengagement agreement or the area of separation.
  • Criterion 5(b) (national security of Member States): Member States shall take into account the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries. […]
  • Criterion 6 (behaviour of the buyer as regards its attitude to terrorism, the nature of its alliances and respect for international law): […]
  • Criterion 7 (risk of diversion): […]

3. The supply of arms to the Syrian opposition would amount to a violation of Security Council resolution 2083 (2012) establishing an arms embargo against individuals and entities associated with Al-Qaida. […]

4. Member States supplying arms to the Syrian opposition would incur State responsibility for aiding and assisting in the commission of internationally wrongful acts.

According to Art. 16 of the ILC Articles on State Responsibility a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible if (a) that State does so with knowledge of the circumstances of the internationally wrongful act ; and (b) the act would be internationally wrongful if committed by that State. The Commentary inter alia states “a State may incur responsibility if it […] provides material aid to a State that uses the aid to commit human rights violations. In this respect, the UN GA has called on member States in a number of cases to refrain from supplying arms an other military assistance to countries found to be committing serious human rights violations” (para. 9). When applying these principles to the envisaged supply of  arms to the Syrian opposition, it is to be considered that war crimes, including murder, extrajudicial killings and torture, are perpetrated by anti-Government armed groups in Syria, as reported by the UN Commission of Inquiry, as well as suicide bombings and attacks against and hostage-taking of UNDOF peacekeepers, as is known from the daily news. Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid an assistance in the commission of such acts.

[end of document]

A comment on the Austrian position

The arguments set out in the Austrian paper are in my view well-founded and persuasive, particularly those based on the principle on non-intervention and the relevance of the Nicaragua Case (see on the topic the articles on the Nicaragua Case 25 years after published in 2012 in the Leiden Journal of International Law), and deserve being taken into account very seriously by the decision-makers of countries which advocate allowing weapons shipments to the Syrian rebels.

There is another point that was not mentioned by the paper. Regarding the responsibility issue raised in para. 4 of the document, I would add that if the proposed amendment to the arms embargo is adopted in the framework of the EU CFSP, the 2011 Draft articles on the Responsibility of International Organizations (DARIO) would also be relevant. Indeed, in that situation, international responsibility might also be incurred by the EU itself, in addition to the responsibility of EU member States. Article 17(1) DARIO provides that

[a]n international organization incurs international responsibility if it circumvents one of its  international obligations by adopting a decision binding memberStates or international organizations to commit an act that would be internationally wrongful if committed by the former organization.

 The ILC’s commentary on that provision refers to a statement of the legal counsel of WIPO according to whom

 [. . .] in the event a certain conduct, which a member State takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that State and of that organization, then the organization should also be regarded as responsible under international law.

 It appears thus that in the event that arms supplied to armed opposition groups in Syria be used by the latter in the commission of internationally wrongful acts, the international responsibility of both the EU as an international organization and of the EU Member States might be simultaneously incurred.

 In any case, it will be interesting to follow the matter, and in particular to see whether proponents of arms supply to opposition armed groups in Syria will put forward international legal arguments supporting their position.

 

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27 Comments on “The supply of arms to opposition groups in Syria and international law”

  1. Dan Joyner says:

    I find it refreshing to see real, well made international legal argumentation in a government document- whether I agree with all of it or not. My compliments to the Austrian FM legal office. My initial reaction to their arguments was similar to Pierre’s. These generally appear to be persuasive legal arguments, or at least arguments that deserve to be taken seriously. It does seem to me, though, that international law has to find an appropriate balance between these classic nonintervention principles on the one hand, and the principles embodied in the responsibility to protect movement, focusing on protection of the civilian populace from violent repression at the hands of their government, on the other.

    • “It does seem to me, though, that international law has to find an appropriate balance between these classic nonintervention principles on the one hand, and the principles embodied in the responsibility to protect movement”

      Billion dollar question: how?

      • yousaf says:

        And, with respect Dan, the rebels have considerable fire-power, and many are AQ associated.

        An arms embargo is the best way to force a political solution.

        The understanding is that even Israel prefers Assad to AQ in Syria. To get a political solution it helps if there is a paucity of arms. If there are many arms the rebels are tempted to fight. The rebels should stop resisting dealing with Assad and sit down and talk.

        Even the USG is opposed to the most well armed of the rebels:

        http://www.thenational.ae/news/world/middle-east/americas-hidden-agenda-in-syrias-war

  2. yousaf says:

    EU lifts arms embargo on Syria rebels

    http://www.bbc.co.uk/news/world-middle-east-22684948

    • Johnboy says:

      For the life of me I can’t see how Hague statements (turn up to the negotiating table OR ELSE we’ll send weapons to the rebels) can be anything other than a blatant violation of Article 2(4) of the UN Charter, which explicitly prohibits even the THREAT of the use of force to attain a political goal.

      I’ll note that AP quotes further Hague saying that Britain will only send arms “in company with other nations, in carefully controlled circumstances, and in compliance with international law.”

      The first two conditions are laughable – France is doing it, so I can too!!!! – but the last requirement is going to take some remarkable gymnastics; the Austrians clearly have nailed the implications of such a move under int’l law i.e. it’s illegal, dude.

      But, basically, Hague is attempting to browbeat the Syrian government by waving the “threat” of these arms supplies over Assad’s head, and the very act of issuing such a threat in order to coerce a foreign government is clearly illegal under int’l law.

      • Sam Johanson says:

        You quote articles 2(4) of UN charter and ignore article 7 which states that civilians have to be protected against genocide which is being carried out by Assad forces, Hezbulla and Iran.

        How convenient?

      • Johnboy says:

        Sam, dude, the word “genocide” appears nowhere in the UN Charter.

        And Article 7 of the Charter is nothing but a compendium of the various official organs of the United Nations i.e.
        “1. There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.
        2. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter. ”

        So I don’t know what you are smoking, but it’s mighty powerful stuff.

        “How convenient?”

        Not anywhere near as convenient as just making up shit as you go along.

      • Sam Johanson says:

        yeh, you’re right.
        however, You quote articles 2(4) of UN charter and ignore articles which state that civilians have to be protected against genocide by regimes such as Assad , Hezbulla and Iran.

        How convenient?

        does it look better now?

      • Johnboy says:

        One more time: the UN Charter does NOT contain a single reference to “genocide”.

        And get this into your head: you are simply making up your definition of “genocide” to suit your argument.

        Assad is fighting a civil war, and he is fighting it hard and dirty.

        He is fighting that way because HE WANTS TO WIN just as much as his opponents want to string him up from the nearest lamppost.

        Now if you want to argue that because of this his troops have committed numerous war crimes then, gosh, I’m not going to argue with you.

        I imagine that’s a very accurate charge that can be laid against his forces and, therefore, against him.

        But “war crimes” is not the same thing as “genocide”, which goes into a different category i.e. “crimes against humanity”.

        Now, are Assad’s forces fighting this civil war because they are intent upon committing a Crime Against Humanity against….. well….. who, exactly?

        The answer is “no”.

        His forces are fighting to ensure Assad’s survival, and they are going about it with an evident – and probably criminal – lack of care for who gets in the way of the bullets.

        But that’s not even close to “genocide”.
        At least, not here on Planet Earth.

  3. Johnboy says:

    Maybe I’m being too simplistic here, but can’t Britain, France etc., get around the legal arguments via the simple expedient of withdrawing recognition from the Assad Government and recognizing the “rebels” as the legitimate government of Syria?

    At that point they are turning the world upside-down, sure, but in that new bizzarro-earth they can argue that they are supplying arms to the legitimate government of Syria to help that put down a “rebellion” that is centred around The Great Pretender Assad.

    It defies all logic and commonsense – Assad is clearly the leader of the Syrian Government – but legally-speaking that’s all they need to do to render the Austrian arguments moot, correct?

  4. yousaf says:

    check:

    http://www.thenational.ae/thenationalconversation/comment/syrian-stalemate-fuelled-by-oppositions-bitter-infighting#full

    “The world is still waiting for the opposition to make a decision as to whether it will participate in the peace conference later this month, Sources say that the opposition is stalling by insisting that the UN issue it a formal invitation to attend the conference……

    It is time for Syrians to realise that the political opposition is an important factor behind the stalemate.”

    Adding guns won’t help this process.

    • Johnboy says:

      Leaving aside the legalities (the Austrians appear to have covered that well) I find the politics to be fascinating.

      If I understand correctly this EU meeting was held to decide whether to EXTEND the existing arms embargo. Such decisions must be unanimous, ergo, all Britain and France had to do was stonewall and the arms embargo simply….. lapsed.

      But think about that, since it means that Britain and France must have originally agreed to that arms embargo, otherwise it would never have been adopted in the first place.

      It’s the reasoning behind that change that intrigues, because you would assume that…. you know… there was some t.h.i.n.k.i.n.g. going into that change of heart.

      I suspect that Britain and France were once happy to sit back on their rumps because they were confident that sufficient arms were flowing in from other sources (Turkey? Saudi Arabia? Qatah?), and now they are Not At All Confident that this is the case.

      As in: the rebels are losing and, furthermore, the erstwhile supporters of that rebellion aren’t stepping up to the plate with quite the same willingness as had previously been assumed.

      Hague now appears hell-bent on stepping into that breech.
      Fools rush in, heh……..

      • yousaf says:

        Simon Jenkins on the subject:

        http://m.guardian.co.uk/commentisfree/2013/may/28/syria-greatest-miscalculation-fascism

        Britain’s military judgment is no more coherent than its political. It thinks it can conquer Syria – which is what toppling Assad would require – by proxy. But sending weapons cannot make a difference, and will merely entice Britain into promising troops, unless it wishes to desert the rebels. Like American backing for the Taliban in the 1990s, the idea that “my enemy’s enemy must be my friend” could yet see British special forces fighting alongside al-Qaida in Syria.

        War holds a terrible appeal for democratic leaders. Most of Europe’s rulers have other matters on their hands, but Britain and France, two nations whose ancient empires carved up the Levant between them, cannot keep out of it. They see national interest and danger where none exists. They cannot relieve Syria’s agony, yet hope some vague belligerence might bring relief.

        The reality is they hope that belligerence might draw attention from political troubles back home. That is the worst reason for going to war.
        ===============

  5. Dean says:

    The Austrian arguments are indeed sound under traditional principles of international law. But the polices underlining this law is not implicated to a great extent. The idea behind non-intervention is to shield sovereign states from foreign interference and destabilization from abroad.

    Syria is distinguishable in that the impetus was not from abroad. It was an internal movement. It is universally accepted that the power to govern stems from the consent of the governed. When the consent is withdrawn and is unable to be effectuated through the system of government – through free elections – then the recognition of the government may be abolished by others. A majority of Syrians have declared their support of the opposition movement. Thus, sovereignty may rightfully transfer to the group that better represents the people of that nation. In recognizing the Interim Government and other opposition frameworks, they become the sovereign and any weapons transfers to parties other then them would be in contravention of the principles as articulated by the Austrians.

    • yousaf says:

      “A majority of Syrians have declared their support of the opposition movement.”

      is there more documented information on this? How do they define the opposition? Does it include Al Nusra/AQ ?

      Thanks.

      • Pierre-Emmanuel Dupont says:

        I agree with you, Yousaf, it is not clear to me that a majority of Syrians support the opposition. It is a factual question. I do not know whether credible sources exist that confirm such allegation. If someone has documents on that, it would be helpful. Thanks in advance.

      • Indeed, a factual question. And not one of two competing forces, one being the opposition, the other, the regime. In fact, the opposition is fissiparous, divided along geographic, political and ideological lines, and furthermore, adding to the complexity, divided by different donors (states, ngo’s, private) with specific agendas. Esp. the geographical di’t vides, exile and inside Syria, causes a lot of problems. Largely, the internal opposition has called for dialogue and non-violent methods from day one (they know what it means to be tortured in prisons, etc.), while the external one has been as reluctant to that idea as one can possibly get. I recommend reading Aron Lund’s many reports on the different aspects of the political opposition. Another sharp divide is between the fighters on the battlefield, and the political opposition. They don’t have much in common, for one thing, because the rebel groups are fragmented, locally, socially, by way of donors, agendas, etc. It’s no one unit (see Aron Lund, The Free Syrian Army Doesn’t Exist, Syria Comment). Basically, if you read this piece by Edward Dark, one of the hopeful organizers of peaceful demo’s in Alleppo, you’ll get a little insight into the morale: http://www.al-monitor.com/pulse/originals/2013/05/syria-revolution-aleppo-assad.html Also see the piece Yousaf shared written by Hassan Hassan in The National. And MofA has some more on it today – he respects facts, even though I think his analyses are biased (whoever (s)he is!). It is VERY fair to say, that the Assad regime has a very solid core, and a social base, a segment of which is filling his armies (are they all intimidated by Assad? I think not. Some, yes. Others have legitimate reasons to fear the aftermath of Assad’s fall, including Sunnis, and so on). The picture is divided everywhere. To put it very simply (too simply), those who take a revolutionary position, must be fucked in the head. But that goes for the one-sided “anti-imperialists” too.

      • Sam Johanso says:

        One fact to add to your comment, if I may, that the opposition, internal& external, no matter how fragmented they are, they all share one thing, their opposition to the regime, and with a simple calculation one would conclude that Assad does not really have a majority support, in numbers that is.
        Not forgetting the internal silent majority mostly out of fear of torture and brutality.

  6. Dan Joyner says:

    This is also bad news – Russian fighter jets being sold to the Syrian government.

    http://www.cnn.com/2013/05/31/world/meast/syria-civil-war/index.html?c=homepage-t&page=0

  7. ” A majority of Syrians have declared their support of the opposition movement.”

    Wrong.

    NATO data: Assad winning the war for Syrians’ hearts and minds
    http://www.worldtribune.com/2013/05/31/nato-data-assad-winning-the-war-for-syrians-hearts-and-minds/

    Quote:

    The data, relayed to NATO over the last month, asserted that 70 percent
    of Syrians support the Assad regime. Another 20 percent were deemed neutral and the remaining 10 percent expressed support for the rebels.

    The sources said no formal polling was taken in Syria, racked by two
    years of civil war in which 90,000 people were reported killed. They said
    the data came from a range of activists and independent organizations that
    were working in Syria, particularly in relief efforts.

    End Quote

    • Sam Johanso says:

      Isn’t it unusual not to find a single link to where WorldTribune got this alleged data or who conducted this poll? Dodgy, isn’t it?
      I went through NATO website but could not find a single reference to the survey or the data.
      How this survey was conducted? Who were the ppl surveyed and in which areas?
      There are 10 million displaced+refugees and Assad agonists among them, I dare say, are more that 80%.
      Therefor, with a simple calculation you will find that this survey, if ever was conducted, does not stand a chance of credibility

  8. ZHENG Xi (Brooke) says:

    Thanks for this inspiring post and all these interesting debates.

    In my opinion, this all boils down to a political struggle. I am not saying that law is not relevant. Rather, I think, law can be used in a very instrumentalist way to help justify wrongful acts done by states. In Syria, it is a struggle between Assad regime and the rebellions; it is also a struggle between Russia and the West. Russia insists that the principle of non-intervention should be respected all the time. Sovereignty is the fundamental principle of international law. The West talks about the respect for human rights and the responsibility to protect. In contrast, regarding the ongoing Ukraine crisis, the West supports the government while Russia supports the opposition group. Now it is the West who insist that principle of sovereignty and non-intervention should be upheld, while Russia invokes the responsibility to protect Russian ethnic groups in Ukraine.

    The vagueness and impreciseness of international law make it less difficult for states to flexibly interpret the law. For example, the language in Criteria 3 in Art. 2 of Common Position 2008/944/CFSP, especially “which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination,” is open for states to interpret. This criteria can be used to justify both to lift arms embargo and to keep arms embargo. To lift arms embargo, states could argue that the quicker the rebellions win the Syrian civil war, the fast the war ends and thus the human rights violations end. To keep arms embargo, states could say that more weapons can only fuel the ongoing conflict and prolong human suffering. However, this characteristic of international law is kind of inevitable since it is based on states’ consensus and normally a result of compromises. For me, the only way to solve all these issues is to continuously enhance mutual trust among states and aim at a more cooperative rather than compromising international legal framework.

    • Sam 53 says:

      You base your argument on the comparison between Syrian situation and Ukrainian situation. US and west did not send armies to Syria to fight for opposition against Assad, while in Ukraine and, to a lesser degree, Syria Russia sends regular army recruits to fight for separatists and Assad respectively and this makes your argument baseless and flawed.


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