The Legality of Arming Opposition Groups and the Arms Trade Treaty: Implications for Syria like cases

The ATT was adopted on the 2^nd of April 2013. It was adopted by an overwhelming majority vote in the UN GA (154-3-23). It was opened for signature on the 3^rd of June and as of 17 June it has been signed by 72 countries.  It is most likely, but not certainly, that its entry into force will happen very soon, given the strong support it has enjoyed from States and others.

This is an important development for arms control law in particular and for international law and the international community in general. Secretary-General Ban Ki-moon said when the ATT was adopted that:

This is a victory for the world’s people. The ATT will make it more difficult for deadly weapons to be diverted into the illicit market and it will help to keep warlords, pirates, terrorists, criminals and their like from acquiring deadly arms. It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.

Indeed, the ATT expressly prohibits supplying weapons in violation of UN Security Council arms embargoes (Art 6[1]), such as the one imposed on Syria by Resolution 2083 (2012). It also prohibits weapon transactions if the weapons will be used to committee the core international crimes, genocide, grave breaches of humanitarian law and crimes against humanity (Art. 6 [3]).  It also bans violating the 2001 Firearms Protocol which supplements the UN Transnational Organised Crime 2000 and other similar treaty obligations (Art. 6[2]). These are express prohibitions under the ATT.

However, as per Article 7 (1) of the Treaty states will be required to:

assess the potential that the conventional arms or items:  (a) would contribute to or undermine peace and security;  (b) could be used to:  (i) commit or facilitate a serious violation of international humanitarian law;  (ii) commit or facilitate a serious violation of international human rights law; (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or  (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

If a state finds that ‘an overriding risk of any of the negative consequences’ to the aforementioned norms is existent it must not authorise any transfer of conventional weapons (Art 7 [3]). The difference between the first category (as codified under Art 6) and the second one as enshrined in  Article 7 is that while the former deals with expressly banned transfers the latter is mainly about the duty to assess potential risks (for more details see Z. Yihdego, ATT.., 23 June, 2012).

In either category there is no express reference to the ban on arms supplies to armed opposition groups such as the Free Syrian Army, although it may be argued that terrorists and transnational organised criminal groups as non-state-actors (NSAs) have been indirectly included in the legal duties of states as shown in Article 7 (1) [iii] & [iv]. This may be strengthened by the fact that the Preamble of the instrument considered the following as one of the principles.

Non-intervention in matters which are essentially within the domestic jurisdiction of any State in accordance with Article 2 (7) of the Charter of the United Nations. 

Such recognition of the principle has not been included as a standard to ban arms transactions with NSAs, however.  Moreover, article 7 of the ATT targets the criminal acts without distinguishing whether the potential perpetrator is a state or a non-state-actor.  What seems to be clear, however, the ATT was not meant to include any general ban on arming NSAs.  This poses the question whether this was a deliberate omission or an issue which was compromised to ensure broader participation. 

In the last decade or so there has been a fierce debate over the legality and legitimacy of prohibiting arms supplies to armed groups, especially those who fight tyranny and cruel regimes of their own .  The first argument is that under exceptional circumstances supplying weapons to such movements must be permitted; this can be justified on the basis of the obligation to prevent and protect populations from serious crimes such as genocide. In the recent past some countries have also recognised some opposition groups as legitimate or legal representatives of a people (see also Stefan Talmon).  The USA has been arguing in favour of such a position stressing that all such actors are not necessarily bad guys. The opposing, and probably more convening view, however, considers arms supplies to such actors unhelpful and also illegal under international law; the latter argument does not appear to include National Liberation Movements (NLMs) who fight colonisation, foreign occupation or racial rule (as the ICJ hinted in Nicaragua).

It is not entirely clear whether the adoption of the ATT evidences a defeat or a success of either argument.  The majority of states were in support of including the ban on arms supplies to armed opposition groups.  But as having important players on board was crucial to the successes of the ATT framework, those states who were champions codifying the non-intervention rule driven ban on arming opposition groups (as confirmed by the ICJ in the Nicaragua Case as a solid international rule) appear to opt for making a compromise on such an omission.  It may be said that it was a deliberate omission from the ATT for purposes of arming the Syrian opposition like movements and the underlying exceptional circumstances such as countering the alleged use of chemical weapons by the Syrian Government.  The fact that not only the USA but also some European countries are vowing to arm Syrian rebels may also be used to strengthen this argument.

Based upon the law of state responsibility and the emerging notion of responsibility to protect, however, the international community or a group of interested states ought to target the regime who commit crimes against its own people, through appropriate and lawful method, most preferably through the UN, without violating the core rules of international law, which includes the duty not to intervene into internal affairs of a state.  The act of recognition of rebels is also a pure political act (Stefan Talmon, CJIL, 2013) the result of which impedes doing business with such actors as same as representatives of sovereign states.   

We also have dozens of legal and political instruments on conventional weapons such as the ECOWAS Convention on Small Arms and Light Weapons 2006, the EU Code of Conduct on Arms Exports 1998 and the [EU] Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment 2009, amongst others, that clearly prohibit the supply of armaments to NSAs.  This suggests that the omission at issue from the ATT is most likely to be an act of compromise rather than a deliberate challenge to the well established customary rule of non-intervention as applied to arming armed groups within a sovereign state (see  Pierre-Emmanuel Dupont interesting and detailed article on the subject at https://armscontrollaw.com/2013/05/27/the-supply-of-arms-to-opposition-groups-in-syria-and-international-law/). This may be the reason why majority of states including European countries are either against arming Syrian rebels or are not openly advocating the supply of lethal armaments to the rebels.  

Despite the absence of an express duty not to supply weapons to non-state-actors within a state in a situation of civil war in the ATT 2013, case law, treaty law and scholarly opinion appears to be sufficiently clear about this; supplying with weapons to armed opposition groups is contrary to international law. Practically, moreover, arming rebels in various conflicts is contributing to destabilizing communities, countries and regions as seen in Iraq, Libya and Afghanistan. It can therefore be concluded that while the omission from the ATT is unfortunate, the legal duty of states to refrain from arming rebels of a third state is strongly embodied in the international legal order, irrespective of its exclusion or inclusion in that Treaty.