A shared responsibility trap: supplying weapons to the Syrian opposition

 Posted by: Nollkaemper André

Cross posted on EJIL: Talk!

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed earlier by Dapo Akande at EJIL talk. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ‘humanitarian intervention’, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.  

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

‘The Allocation of International Human Rights Duties (and Responsibilities) to Multiple Duty-bearers’, A Discussion of Samantha Besson’s SHARES Lecture

 Posted by: Have Nienke van der

During a SHARES lecture on 6 June, Prof. Samantha Besson presented a recently published chapter on the allocation of international human rights duties and responsibilities for human rights in SHARES context. Building on the work of Henry Shue, among others, she offers a theory to bring our understanding of the supply side of human rights to the next level. Due to the complexity of this task, other human rights theorists have so far largely resorted to pragmatic and strategic reasoning instead of forwarding a morally coherent approach. Besson clarifies the steps to be taken as: (i) identification of human rights duties (ii) identification and justification of human rights duty-bearers; and (iii) allocation of human rights duties to human rights duty-bearers. In her contribution to a book on Poverty and the International Economic System, she argues that insufficient delineation of human rights duties and an unreflected use of the term ‘responsibilities’ for human rights has led to a conflation of the two, which diminishes clarity when it comes to identification and allocation of tasks on the supply-side.

First, in explaining human rights duties, Besson outlines that human rights are abstract norms, while duties can only be specified in a given context and in relation to a concrete threat. One right can be the basis for more correlate duties to respect, protect or fulfill and such duties can evolve over time and space. As such, duties need to be localized to be identified and consequently allocated. Moving on to the identification of duty-bearers, Besson defends an institutional account of human rights, with institutions as the primary human rights duty-bearers. She submits that human rights duties ought to be borne by national and regional polities’ institutions because human rights are systematic and egalitarian by nature, strongly linked to democracy and because institutions offer the best platform to allocate duties in practical sense. Which institutions bear duties in a certain case is determined on the basis of which institution has jurisdiction over the right holders, in the sense of effective control or authority and control. In this institutional account of human rights, individuals are subsidiary duty-bearers, whose duties only arise when they are allocated to them by these institutions or when institutions have failed. In the latter case, Besson argues that individuals mainly have duties to create institutions to then be able to secure human rights. International Organizations (IOs) generally do not have human rights duties but only responsibilities for human rights. However, post-national structures like the European Union, which can be said to constitute a polity when governing a group of individuals with equal and interdependent stakes, may have human rights duties.

Moving on to responsibilities for human rights, as opposed to duties, these are described as abstract moral requirements which are not necessarily correlate to a right. As examples, Besson mentions the Responsibility to Protect (RtoP) or the United Nations human rights responsibilities. These moral responsibilities are related to and co-existent with human rights duties, but their content is much less specific and there is a lack of institutions with the ability and legitimacy to allocate them. Besson identifies three sets of bearers of responsibilities for human rights. First, responsibilities are borne by individuals, although there is not much they can do in practice because of coordination limitations. Second, institutions other than those of the human rights duty-bearing state may also bear responsibilities, acting as instruments of global justice or as representatives of an aggregate of individual responsibility-bearers. Finally, IOs may bear responsibilities for human rights, primarily in their role as frameworks for state cooperation. The allocation of such responsibilities involves assessments of the fairness of the individual burden of various responsibility-bearers. Six grounds of distribution, identified by David Miller, may be used cumulatively, alternatively or in cascade. These grounds being: outcome, causality, harm, capacity, benefit or special ties. Miller’s proclaimed problem of re-distribution is also paid homage by Besson in the context of allocating responsibilities for human rights. The problem of re-distribution describes that it is difficult to justify global re-distribution of broad and unspecific responsibilities for human rights and the consequences this has for a state’s resources, if allocation of specific human rights duties has already taken place domestically or regionally. This results in a situation where distribution remains largely a matter of judgment of each potential responsibility-bearer in each case.

This theoretical background allows for closer scrutiny of the distribution of shared state duties and responsibilities. First of all, with regard to the distribution of human rights duties, the role of institutions is described as providing a platform for deliberation to set priorities and discuss the distributive principles on the basis of which duties should be allocated. Besson marks jurisdiction as the defining criterion to determine which institution is the platform for deliberation in any particular case. However, the picture may become obfuscated when multiple institutions belonging to different polities have jurisdiction over the same group of rights-holders. Even though different institutions have specific jurisdictional relationships with the right-holders, giving rise to a specific set of duties, additional grounds for distribution could be useful in such cases as a way of ensuring cumulative or at least complementary protection. Besson ventured that there may exist a duty of states in extraterritorial settings to allocate duties among itself and third states, but in the long run this could, for example, hinder self-determination. With regard to the distribution of responsibilities for human rights and the problem of re-distribution, it may be noted that a situation in which each potential responsibility-bearer determines for itself what part of a responsibility it assumes leaves much room for free-riding and buck-passing. Besson agreed that there may be other over-arching principles than the six grounds for distribution identified by Miller which could perhaps offer a framework for the distribution of responsibilities in the area of (different) human rights. An example could be the principle of common but differentiated responsibility (for more background information, see here), which has for instance been used in environmental law to distribute common responsibilities for climate change on a differentiated basis with reference to different actor’s capacities and historical contribution to a problem.

Finally, the duty to make institutional arrangements to secure human rights arguably exists both at the level of human rights duties and that of responsibilities for human rights. At the duties level, Besson argues that individuals have a duty under human rights law to set up institutions to secure human rights. She agreed that a similar construction at the level of responsibilities may be the most effective way forward in terms of operationalization, meaning that states have a moral responsibility to set up institutions to realize responsibilities for human rights. An example is contained in Principle 30 of the Maastricht Principles on the Extraterritorial Applicability of Economic, Social and Cultural Rights, which outlines a responsibility of states to make institutional arrangements to allocate responsibilities for ESC rights (for more background information, see here). Besson did, however, stress that it remains of importance to underwrite the difference between duties and responsibilities for human rights – something which is at times lacking in the Maastricht Principles and Commentary.

Transfer of vulnerable asylum seeker to Italy not in violation of ECHR

 Posted by: Heijer Maarten den

The European Court of Human Rights declared inadmissible a complaint brought against Italy and the Netherlands of an asylum seeker whose transfer to Italy was ordered by the Dutch authorities pursuant to the EU Dublin Regulation (Mohammed Hussein a.o. v the Netherlands and Italy). The Court’s rigorous scrutiny of the treatment of asylum seekers in Italy suggests that it aimed to set a standard for similar cases.

After the European Court had declared the intra-EU transfer of an asylum seeker to Greece in violation of the European Convention on Human Rights in January 2011 (the case of M.S.S., see also here), litigation in several Member States shifted to other allegedly unsafe countries for asylum seekers, in particular Italy. Some NGOs highlighted failures in the Italian protection system and advised to refrain from deporting asylum seekers to Italy (see here and here). Information of the Court shows that in 2012, the European Court accepted seven requests for interim measures to the effect of suspending expulsions from the Netherlands to Italy. Presumably, these are all Dublin transfers. The Court also refused 22 of such requests however. The cases in which it did order an interim measure concerned particularly vulnerable asylum seekers, such as minors and mothers with young children. It appears that this is the first case in which the Court substantially deals with a Dublin transfer to Italy.

The complaint was brought by a mother from Somalia with two young children. She arrived by boat from Libya in Italy in 2008 where she stayed for eight months before travelling onwards to the Netherlands (because, so she told the Dutch immigration authorities, she had heard that it was safe there and ‘the people nice’). Her two children were both born during her stay in the Netherlands. After her transfer to Italy was ordered and national remedies exhausted, she applied to the European Court, which issued an interim measure suspending her transfer.

Because Italian reception conditions have been debated for some time now, the Court could rely on much material. It considers on the basis of the reports and the relevant Italian law that the situation in Italy differs considerably from that in Greece. Despite some shortcomings, there is no systemic failure to provide support to asylum seekers or persons with refugee status. The Court finds this corroborated by the story of the mother. After having arrived in Italy, she was placed in a reception facility where her asylum application was processed and indeed granted after five months. She was also provided with medical care once it became known that she was pregnant. Her previous stay in Italy did therefore not attain the minimum level of severity required for treatment to fall within the scope of Article 3 of the European Convention. The Court further concludes that there are no indications that the applicant will not be able to invoke the assistance of the Italian authorities once she returns there with her children.

Because the complaint is declared manifestly ill-founded, the decision seems to bring an end to the debate whether Dublin transfers to Italy are possible. It might be recalled however, that the European Court had also displayed initial restraint in cases concerning Dublin-transfers to Greece (see K.R.S. v the United Kingdom). It was only after a complaint had been brought by an asylum seeker who had actually been transferred to Greece and had not been provided with any assistance whatsoever (as was the case in M.S.S.), that the Court was forced to change its position. It does seem that the chances that that will happen in Italy are much smaller however.