Forgotten Weapons: The Syria Rebels’ Arms Pipeline

 Posted by: Lundahl Katarina

While all eyes are on chemical weapons in Syria and the permanent five are toasting over Resolution 2118, a clandestine international arms pipeline is quietly supplying the opposition forces with sophisticated weapons.

After The New York Times first reported in June on an unregistered arms pipeline delivering weapons to the rebels through a network of multiple state participants, news reports have continued to add more actors to the supply chain. In addition to a wide array of important US allies in the region, the involvement of the CIA itself and the Sudan has been alleged. Private smuggling and arms procurement networks further facilitate the movement, overlooked by sympathetic state authorities and sidelined by the focus on chemical weapons. An independent Syrian writer described the multitude of actors involved as the equivalent of supplying 100 million corner stores rather than a supermarket.

Meanwhile, aside from quiet voices of disapproval from Moscow, no one is making noise at the pipeline or claiming questions of responsibility are at play. The multitude of public and private players involved in the trafficking chain makes it difficult to designate responsibility within existing international law. Moreover, as the conflict in Syria has evolved from anti-government protests into a global proxy war with dirty hands on both sides, few actors are eager to cast the first stone and raise claims of state responsibility. In situations of civil war with a government of waning legitimacy, states do not consider the non-intervention principle as holy as could be assumed.

Reports (here and here), citing rebel and official sources supported by flight data, indicate that Turkey, Qatar and Saudi Arabia have provided weapons to the opposition and coordinated deliveries since 2012 in a covert alliance. Flight data cited in the reports shows that the airlift, which began on a small scale in early 2012, expanded into a steady flow in the fall of 2012, by then amounting to a ‘cataract of weaponry’, according to an anonymous former US official. The Wall Street Journal suggested last fall that these states formed a secret joint operations room in early 2012 to control the weapons flow to the rebels. The NYT report from June this year further described an elaborate distribution system created by the Syrian opposition with the support of Qatar and Turkey.

Besides regional US allies, also less likely sympathizers have been implicated in the chain. In August this year, the NYT reported that Sudan had sold weapons, including Chinese anti-tank missiles, to Qatar that then arranged for them to be delivered to the Syrian opposition forces through Turkey on Ukrainian-flagged aircraft. Besides planes from Qatar and Saudi Arabia, also Jordanian aircraft has been used for the transfers. The CIA has allegedly helped organize the transfers, albeit ‘mostly in a consultative role’ and facilitated arms purchases by the Arab governments, including a large procurement from Croatia. Some sources have even claimed that the CIA itself was engaged in arms smuggling from Libya to Syria during the 2012 Benghazi embassy attack.

These reports paint a picture of an extensive and well-coordinated arms trafficking chain, operated and facilitated by multiple state actors that continue to deny involvement as no one is asking questions. If the reports are accurate, the US and its key allies in the region are actively facilitating the illegal trafficking of arms to the rebels, motivated by their shared fear of seeing a victory for the Assad regime and, by extension, its Shiite ally Iran. The US is undoubtedly sympathetic to the goals of its Gulf allies in this regard and has little leverage over states like Qatar that are needed for pursuing other US interests in the region. Syria would not be the first instance where a sympathetic US has silently given its blessing to illegal activities of its Gulf allies. The UN Panel of Experts on Libya concluded in March this year that Qatar violated the UN arms embargo by supplying weapons to the Libyan opposition during the conflict in 2011, and the Obama administration secretly approved these deliveries.

Libyan weapons stockpiles are now considered to be the main source of the Syrian rebels’ weapons, which are then trafficked through Turkey or Northern Lebanon into Syria. The UN Panel of Experts on Libya concluded that the significant size of shipments from Libya towards Syria and the involved logistics suggest that Libyan authorities have been aware of the transfers, if not actively involved in them. Two years after the fall of the Gaddafi regime, most Libyan stockpiles are still under the control of non-State actors, while border control management and security remain significant challenges. Despite the embargo, Libyan stockpiles continue to fuel conflicts not only in Syria, but in the Sahel, Egypt and Gaza; for Syria, provided by the courtesy of the Qatar Emiri Air Force.

Russia has so far been the only state asking questions of the covert trafficking chain. In July this year, Russia attempted to have the weapons transfers by Qatar from Libya scrutinized by the UNSC Sanctions Committee established pursuant to Resolution 1970 (2011), which also placed an open-ended arms embargo on Libya. Although the embargo was amended by Resolution 2009 (2011) and Resolution 2095 (2013) to allow for limited exceptions, the embargo on exports is still in place making any state involvement in transfers from Libya a violation of UN sanctions. The Russian call was reportedly not supported in the Committee because some members of the Committee expressed doubts over the wisdom of probing the transfers solely on the basis of media reports.

The Committee however has the mandate to examine and take appropriate action on information regarding alleged violations of or non-compliance with the established sanctions. One can only speculate why the Committee has apparently chosen not to exercise its mandate on allegations regarding Qatar, Turkey and Libya, but its inaction adds yet another blind eye to the global reaction. In the absence of a UN probe, it remains up to individual states to bring responsibility claims and, so far, such claims have not been forthcoming. In the face of chemical weapons use by the Syrian government forces, more states are likely to become sympathetic with the rebels’ cause and thereby more inclined to continue to turn a blind eye to the illegal arms pipeline supplying the opposition.

Regardless of the origin of the weapons being trafficked through the pipeline (whether a state under embargo or not), and irrespective of what the rebels do with these weapons, supplying weapons to an opposition group seeking the overthrow of a sitting government is difficult, if not impossible, to justify under international law in these circumstances. The states participating in different roles in the illegal arms transfers are therefore responsible for their respective wrongful acts in the chain. Since most of these states are, in one way or another, supporting illegal acts, they have very little interest in creating or enforcing a more stringent rule of complicity.

The second element of state responsibility, attribution, is even more problematic. With an astonishing multitude of states and other actors facilitating the supply chain in various ways, it would be extremely difficult to establish sufficient causation for the purposes of responsibility. This poignantly illustrates the inability of international law lex lata to offer solutions to deal with situations involving a complex web of actors with highly differentiated contributions.

In the euphoria generated by the diplomatic victory of avoiding a military intervention in Syria and reaching a deal on Syria’s chemical weapons, topped of by the Nobel Peace Prize awarded to the OPWC last week, few seem to remember that conventional weapons, pumped into Syria by the clandestine pipeline, keep fueling a war that has already claimed the lives of more than 100,000 people.

Sharing Risks, Sharing Liability: Environmental and Health Risks of the Destruction of Syrian Chemical Weapons

 Posted by: Nollkaemper André

On 11 October 2013, the UN Security Council authorised the establishment of a Joint Mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the United Nations (UN) to oversee the destruction of Syria’s chemical weapons. The Council endorsed the proposal formulated by Ban Ki-moon in a letter to the Council of 7 October (S/2013/591), pursuant to a request by the Security Council in Resolution 2118 (2013).

While all attention now focusses on the completion of the Joint Mission’s goal (the elimination of Syrian chemical weapons), it is not too early to plan for contingencies. The destruction of the chemical weapons will entail significant risks for the environment and human health. These risks will arise in particular in the third phase of the Mission. As outlined in Ban Ki-moon’s letter of 7 October, from 1 November 2013 to 30 June 2014, the Joint Mission is envisaged to support, monitor and verify the destruction of a complex chemical weapons programme involving multiple sites spread over Syria which by then is likely to be still engulfed in violent conflict. This involves approximately 1,000 metric tons of chemical weapons, agents and precursors that are dangerous to handle, transport and to destroy.

Even in normal situations, destruction of chemical weapons is a high-risk undertaking. The OPCW is mindful of environmental and health risks of such destruction, see for instance here. In Syria the risks surely are higher than normal. The time period is shorter than what otherwise would be allowed under the Convention, and the context will be incomparably less secure than any other instance in which chemical weapons have been destroyed. As Ban Ki-moon wrote in his letter of 7 October, ‘During phase III, the OPCW/United Nations Joint Mission will seek to conduct an operation the likes of which, quite simply, has never been tried before.’ He recognised that ‘In the extant circumstances, the pressures associated with the destruction timelines will not only enhance operational and security risks, but also potential public health and environmental risks.’

In this situation, it has to be considered what will be the legal consequences when things do not go according to plan, and harm to human health or the environment results. In particular, who would be liable (a term more appropriate here than responsibility, in view of the fact that major harm could be caused even if no wrongful act may be committed under international law) for such harm?

The Chemical Weapons Convention does not include a provision on liability for harm resulting from the destruction of chemical weapons. But it seems clear that if a state destroys its chemicals weapons and harm to public health or the environment occurs, it is exclusively that state (and not, for instance, the OPCW) that would be confronted with any legal consequences of such harm. Depending on the circumstances, the state may then be responsible towards other state parties (for instance if it failed to set or enforce proper standards as required by the Convention), or towards injured individuals (possibly under human rights law, if no proper precautions were taken). It also may be liable for environmental harm – though it is not obvious that such liability will arise under international law, unless transboundary effects occur.

In the case of Syria, a different outcome seems justified. While much will depend on the circumstances in which harm may occur, it is a compelling proposition that it should not necessarily be only Syria that has to face the legal consequences of such harm.

This proposition can be grounded on the fact that the OPCW Executive Council and the Security Council have pushed Syria (respectively in a decision of the OPCW Executive Council of 27 September, and in Security Council Resolution 2118 which endorses this decision) to engage in the destruction of chemical weapons in a time-frame that is shorter than what is prescribed by the Convention, and that would have to occur in a volatile situation in which no other state would ever think of engaging in such high risk activities.

In the published documents there is nothing to suggest that the OPCW and/or the UN would assume (co-)liability if things would go wrong. The proposal by the UN Secretary-General that is now endorsed by the Security Council maintains that ‘all destruction of chemical weapons facilities, stocks and associated material is the responsibility of the Government of the Syrian Arab Republic. Neither OPCW nor the United Nations is mandated to conduct actual destruction activities’. The suggestion appears to be that, as in normal times of peace, only the state actually carrying out the destruction will be liable if things go wrong.

In view of the role of the OPCW Executive Council and the UN Security Council in the process that Syria is now embarking on, as a general proposition this outcome seems unreasonable. Pushing a state into actions that in all other situations would be considered unsuitable, even if the aim is a noble one, should come with some responsibility if things go wrong.

Such a potential (co-)liability does not obviously flow from existing rules of international law. In the case of environmental harm it may be doubtful whether an obligation binding on the OPCW or the UN can be identified that would allow for a construction of a wrongful act. Moreover, the conditions of the principles on responsibility of international organisations adopted by the International Law Commission, in particular those pertaining to aid or assistance, direction and control, coercion, and circumvention (Articles 14-17) appear to be set too high to be relevant here. In any case they are unhelpful in situations where the problem appears more one of engaging in high-risk activities than of wilful commission of wrongs.

In fact, the proper ground of liability for environmental harm or harm to human health may not so much lie in the law of international responsibility for wrongful acts, but rather in the notion of liability for harm arising out of hazardous activities. The principles that the ILC drafted on this topic only apply to states, and surely there is insufficient practice to warrant the development of similar rules for international organisations. But in particular situations, the principle that an actor that creates a risk of harm by engaging in a hazardous activity should bear (part of) the loss is a sound starting point. Other than with states, for international organisations there is no reason to limit such a principle to transboundary situations. Nor is there any ground to shift liability to private operators. Liability is to be taken by those who contribute significantly to the risk – in this case a combination of Syria, the UN and the OPCW.

While thus neither the principles on responsibility for wrongdoing nor those on liability for creation of risks would easily support a (co)liability of international organisations, the question is whether the UN and the OPCW should profit from gaps in international law, so as to enable them to leaving it to Syria alone to face the consequences of risks that the UN and the OPCW, jointly with Syria, have created. A lesson from the fate of recent liability claims against the UN, for instance in the case of Haiti or Srebrenica, is that it is not necessarily a recommendable strategy for the UN (and the same would hold for the OPCW) to exploit all legal avenues so as to secure that others have to deal with the legal consequences of events in which the UN had a decisive role. While we have to come to accept that for states it is normal to seek gaps in the law to prevent claims, from the UN something more is to be expected.

Three additional points should be noted. First, the question can be asked whether there also may be a potential co-liability of the UN and the OPCW as a result of the acts of the Joint Mission itself. This appears unlikely. While the Joint Mission will play a critical role in guiding and overseeing the destruction, it is not easy to envisage a situation where environmental harm or harm to human health results from the acts of the Joint Mission itself. Theoretically interesting questions about the relationship between the jointness of the mission, and the shared nature of liability between the OPCW and the UN for conduct or omissions of the mission, are unlikely to become practically relevant (though it is not excluded that they arise).

Second, it may be said that the OPCW Council (and the Security Council afterwards) only have rubber stamped what the United States and the Russian Federation had agreed beforehand, and that any liability for high risks should be borne (also) by those states, rather than by the OPCW and the UN alone. As a matter of international law that argument is not an easy one, however. It certainly is not supported by the ILC Articles on the responsibility of international organisations. Again, the standards of the relevant Articles here (Articles 58-61) are high and not really applicable to what in essence is a situation of the creation of risks. It also can be said that the role of the United States and Russia was overtaken by later collective decisions in the Executive Council and the Security Council.

Third, it may be argued that any liability for the UN and the OPCW would not be appropriate should be rejected since it was Syria itself that has created the problem in the first place. The argument that for this reason is would be only for Syria to face the consequences is not compelling, however. The mere possession of chemical weapons by Syria was not a wrong. Its accession to the Convention would normally have given Syria a more flexible time period for destruction, were it not for the intervention by the OPCW Executive Council and the Security Council. The illegality of the use of the gas does not affect any questions of liability for destruction of the weapons.

In conclusion, then, it would seem a sound position that in the event that human health or environmental harm would occur, the UN and the OPCW should not leave all questions of liability to Syria. Given that the rules of international law as laid down in the ILC Articles on the responsibility of international organisations are unlikely to be of much help in construing a shared responsibility in the event that harm would occur, and in view of the absence of established principle on liability of international organisations, the sensible thing to do it to make proper arrangements in advance. One option may be to include this in the tripartite status-of-mission agreement between the UN, the OPCW and the Government of the Syrian Arab Republic, but there will be other options. It is not too late to make arrangements for a shared responsibility in the case of harm that reflects the unique shared nature of this operation.

How We Can Do Something: Sharing the Responsibility to Protect Syrian Refugees

 Posted by: Swerissen Isabelle

Cross posted on the website of the ESIL Interest Group on Migration and Refugee Law

With breath bated, the world has been waiting to see what will happen next in Syria. On Tuesday 10 September 2013, President Barack Obama said he would pursue a Russian proposal which has “the potential to remove the threat of chemical weapons without the use of force”. It’s too early to tell whether this diplomatic attempt will succeed, so in the meantime, the option of military action remains on the table. Without a Security Council mandate, any form of military engagement in Syria would violate international law on the use of force. And yet, this may not stop the United States and its allies from moving forward with military intervention. It is all but clear whether intervening will improve matters on the ground. In fact, it could easily make things worse, but that doesn’t seem to matter. What matters is that “we need to do something”.

In this blog post, I argue that we can do something. The countries of the world can share the responsibility for the 2 million Syrians who have been forced to seek refuge abroad.[1] In a statement released to mark this sad milestone, United Nations High Commissioner for Refugees (UNHCR) António Guterres said Syria had become “a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history”. He added that “the only solace is the humanity shown by the neighbouring countries in welcoming and saving the lives of so many refugees”. But with an average of almost 5.000 Syrians fleeing into Lebanon, Jordan, Turkey, Iraq and Egypt every day, their ability to cope is wearing thin.[2] International support is urgently needed to help them deal with the Syrian refugee crisis.

The protective responsibility with which surrounding countries are struggling, can be shared in several ways, three of which are outlined below. One way is by creating international territories of asylum,[3] that is, territories leased by an international organisation (IO) for the purpose of offering refugee protection. IOs, in particular the UN, are already heavily involved in protection efforts for Syrian refugees. The next step is to conclude binding agreements on leasing of land with host countries. On the basis of such an agreement, an IO assumes temporary control over the land on which refugees reside. In exchange, host countries receive monetary compensation for the use of that land.[4] This constitutes a truly international solution, because responsibility for the protection of Syrian refugees is indirectly – through the IO – shared by countries beyond the region.

The establishment of international territories of asylum would be unique in the history of refugee protection; never before have international lease agreements been used for strictly humanitarian purposes.[5] However, as a new tool of protection, this solution raises a number of complex legal issues. Most fundamentally, it is doubtful whether IOs can ever be “actors of protection”,[6] even though they increasingly play a role in providing care and assistance to refugees. The reason for such skepticism harks back on the essence of refugeehood. To be a refugee means to have a broken political relationship with a state,[7] which cannot be replaced by a makeshift relationship with an IO. In other words, refugee protection could be said to involve particular functions and attributes that IOs, and other non-state actors for that matter, simply cannot provide.

In light of this initial objection, and given the fact that countries are generally reluctant to concede authority over territory, it is highly unlikely that international territories of asylum will be become a reality in the coming weeks. A responsibility sharing solution that stands a greater chance of success is the provision of temporary protection by countries bordering Syria, combined with the promise of resettlement in countries further afield. This two-step formula has been applied in the past, most notably in response to the Indochinese refugee crisis from 1979 until 1989 and the Kosovo refugee crisis in 1999. In both cases, countries of first asylum rejected a further inflow of refugees due to fears of national destabilisation. Eventually, they were persuaded into admitting refugees on a temporary basis, but only after assurances of resettlement elsewhere were given.[8]

Overall, the temporary protection and resettlement solution contributed positively to the protection of Indochinese and Kosovar refugees. However, implementation of this solution was not without controversy. In both cases, access to protection became dependent on the possibility of resettlement. It is this conditionality that was heavily criticised by human rights activists and even UNHCR staff in the field. They feared that setting sharing as a pre-condition would compromise the obligation of non-refoulement, which includes non-rejection at the border. Taking a principled stance, they argued that the obligation of non-refoulement must be “scrupulously observed” in all cases[9] and “can in no way be contingent upon the implementation of a responsibility sharing programme”.[10]

Apart from concerns relating to conditionality, there were other problems as well. For example, refugees were forcibly moved to resettlement countries, which, albeit for protection purposes, is questionable from a human rights perspective. In addition, resettlement outside of the region made return once the situation had changed considerably more difficult.[11] These problems were all associated with the physical transfer of refugees from one place to another. To prevent their recurrence in dealing with the Syrian refugee crisis, it may be advisable to push for some form of responsibility sharing that is financial only. Pursuant to a financial responsibility sharing arrangement, countries close to Syria will continue to bear the responsibility for physical protection, with other countries doing their part by providing funding for protection and relief efforts.

The strength of this solution is that it recognises that different states can contribute to refugee protection in different ways, depending on their preferences and capabilities.[12] It is also the solution that is most feasible, since it greatly resembles the way the international community is currently organising its support to states hosting Syrian refugees. However, important adjustments must be made, especially with regard to the discretionary nature of the funding arrangements. On numerous occasions, donor states have pledged to send money without making good on those promises.[13] This has to change, because only the reliable availability of fiscal aid and assistance will ensure that the refugees can continue to find the protection that they so desperately need. What is thus required to improve the current state of affairs is a binding mechanism for financial responsibility sharing.

In this blog post, I have discussed three options on the basis of which responsibility for the protection of Syrian refugees can be shared. In view of the pressure that the refugee exodus is placing on neighbouring countries, sharing is no longer a matter of ‘if’, but ‘how’. Although the answer to the ‘how’ question has shown that each of the proposals comes with its own challenges, they merit serious consideration nonetheless. After all, as long as the world remains deeply disunited over how to bring about an end to the Syrian conflict, there is no hope of eliminating the causes that force people to flee in the first place. In this tragic reality lies the “beauty” of refugee protection: it is a “palliative” response that allows the world to do what it can, at least until the bloodshed in Syria is stopped.[14]

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[1] The 2 million figure represents Syrians who have registered as refugees or who are pending registration. A further 4.25 million people are displaced inside Syria, according to data from the UN’s Office for the Coordination of Humanitarian Affairs (OCHA). Taken together, these numbers – amounting to more than six million people – mean that more Syrians are now displaced than people from any other country. See ‘Number of Syrian refugees tops 2 million mark with more on the way’, UNHCR <http://www.unhcr.org/522495669.html> (3 September 2013).

[2] More than 97 per cent of Syria’s refugees are hosted by countries in the immediate surrounding region. Of those countries, Lebanon hosts the most with some 720,000, followed by Jordan with 520,000, Turkey with 464,000 and 200,000 in Iraq. Egypt is hosting an additional 111,000 Syrian refugees. See ‘UNHCR and host countries to push for greater international help on Syrian refugees’, UNHCR <http://www.unhcr.org/522756779.html> (4 September 2013).

[3] See generally on the notion of international territories of asylum, Terje Einarsen, ‘Mass Flight: The Case for International Asylum’ (1995) 7 International Journal of Refugee Law 551.

[4] Eve B. Burton, ‘Leasing Rights: A New International Instrument for Protecting Refugees and Compensating Host Countries’ (1987-1988) 19 Columbia Human Rights Law Review 307, 319.

[5] Einarsen (n 3) 565.

[6] See generally on the issue of non-state actors as actors of protection, Maria O’Sullivan, ‘Acting the Part: Can Non-State Entities Provide Protection Under International Refugee Law?’ (2012) 24(1) International Journal of Refugee Law 85.

[7] Alte Grahl-Madsen, The Status of Refugees in International Law – Volume I (AW Sijthoff-Leyden 1966) 78-79; Andrew E. Shacknove, ‘Who is a Refugee?’ (1985) 95 Ethics 274, 283.

[8] See generally on the Kosovo refugee crisis, Michael Barutciski and Astri Suhrke, ‘Lessons from the Kosovo Refugee Crisis: Innovations in Protection and Burden Sharing’ (2001) 14(2) Journal of Refugee Studies 95.

[9] UNHCR ExCom Conclusion No. 22 (XXII) ‘Protection of Asylum Seekers in Situations of Large-Scale Influx’ (1981) para. II.2.

[10] Amnesty International, ‘Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees’ (1999) 20.

[11] Joanne Thorburn, ‘Transcending Boundaries: Temporary Protection and Burden Sharing in Europe’ (1995) 7 International Journal of Refugee Law 459, 476.

[12] James C. Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89, 102. See also James C. Hathaway and R. Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115, 202-207.

[13] As a result, states hosting Syrian refugees are worryingly under-supported, with receipt of only 47 per cent of the funds required to meet basic refugee needs. See UNHCR (n 1).

[14] Hathaway (n 12) 98.

Intervention in Syria and International Law: Inside or Out?

 Posted by: Nollkaemper André

Cross posted on Opinio Juris

States that have decided to potentially engage in military strikes against Syria, or to support such strikes, face a difficult choice between two options: do they operate outside the international legal framework when they act, or do they use the strikes as part of an attempt to reconstruct the law on the use of force?

There is no doubt that in the present situation, military strikes against Syria would be in violation of international law as it has been understood since 1945. In situations as we face now, in the absence of a Security Council mandate, international law allows no unilateral use of force. Building a coalition outside the United Nations does not help. Qualifying strikes as punishment does not help either. International law does not provide a right of states to respond with force to serious violations of international law – even when that law prohibits the use of chemical weapons. Other than what was suggested in the UK legal position, reliance on the doctrine of humanitarian intervention does not change this. The positions of states on humanitarian intervention simply are too diverse. This was made quite clear in the UN debates on R2P, which did not recognize any right to use force outside the existing Charter system.

In this situation, states that move forward with strikes have two options: to act outside the system or to stay inside, but present the strikes as part of a process to change the system.

The first option is simply to ignore the international legal framework – and just bombard, without attempt to justify the bombardment in legal terms. An alternative way to frame this, which boils down to the same approach, would be to deny that international law as it is prohibits unilateral strikes. At the time of writing, this first option appears to be the US approach. The line then would be that in extreme cases, strong military responses are required to protect interests of states or of the international community – no matter what international law has to say on the matter. Politically, and/or morally, stakes are too high to be limited by the law. The law may have to pass in situations as this.

The second option is to present the strikes as part of a process of reconstruction of the law on the use of force, and more in particular as a revival of the right to humanitarian intervention. The argument would be that the Charter (and for that matter the R2P doctrine) gives the Security Council the responsibility to act when states use chemical weapons, and that if they fail to do so, individual states should be able to act to protect civilians. Present international law may prohibit it, but international law is not static and can change by being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.

On the assumption that strikes deter and influence future behavior, both options may help to protect civilians. Moreover, both options may put the Security Council and its member states on notice that the next time, they should better take their responsibility more seriously, otherwise they will be left behind again.

It may be said that the difference between the two categories is thin or even artificial, since also an act that ignores the law may later be invoked as a precedent for the process that leads to change. Nonetheless the positions can be distinguished. There is a difference in terms of the opinio juris that is relevant for the formation of customary law. Another difference is that states in the former category can continue to rely on the system as it is, to critique future uses of force that rely on an alleged humanitarian exception if they consider these uses politically undesirable, whereas the second group will have a little more to explain.

For those supporting air strikes, the choice between the options is not easy. The benefit of the first option is that the Charter system stays in place. The states embarking on this route will hope that such incidental transgressions do not affect the system as a whole. Next time a similar situation arises, they can simply rely again on the traditional law. This hope is not entirely baseless. Somehow the many transgressions of article 2(4) of the UN Charter in the past decade have not changed anything in the fact that states and legal scholars generally continue to use article 2(4) as a first baseline for justifying or critiquing action or inaction.

A drawback of the first option is that it does not offer anything to make the international legal system more capable of responding to violations of its most fundamental norms. As long as the Security Council does not take its responsibilities more seriously, the system will have to pass when it really matters. There is no ambition of development towards a system that can protect the persons for whose purpose international law in the final analysis exists.

The second option is from this angle more attractive. It could allow participating states to ride the moral high ground, and to seek protection of civilians from within the international legal order. At the end of the tunnel it projects a body of international law that allows for decisive action when needed to protect fundamental values when the Council once more fails to act.

The difficulty of the second option is that it is rather uncertain where this process will lead. Some states (e.g., the UK, the Netherlands) have articulated conditions for humanitarian intervention, such as the requirement that negotiations have been exhausted, that there is a likelihood that the strikes will achieve the aim of protection of civilians, and that there is support of other states – notably states in the region.

However, it is very uncertain whether these conditions will be acceptable to the majority of other states. It also is likely that opinions on the interpretation and application of such conditions in specific cases will differ. If so, a serious risk exists that engaging in this process will lead us to a situation where the old system is abandoned and no longer provides protection, yet no new agreed new rule will be established. States then may justify the use of force on different criteria. They may use the pretext of humanitarian intervention to justify, for example, a strike on Israel because there too the Security Council fails to effectively respond to the illegal occupation, and there too humanitarian costs are high. Engaging in air strikes as part of an attempt to reconstruct the law on the use of force in a humanitarian direction then may come back like a boomerang. The agony is that article 2(4) then will have lost some of its power to protect us.

The failure of the Security Council to take its responsibilities and to act therefore is for more than one reason deplorable. Not only does it leave the people in Syria without protection, but it also induces unilateral action that, whichever it proceeds inside or out, leaves the international legal system worse off.

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.

Providing weapons to Syria: a situation of shared responsibility?

 Posted by: Nedeski Nataša

The continuing conflict in Syria has raised many questions of shared responsibility (see, for example, here and here). This blog post will discuss the issue of the provision of weapons and other military equipment to Syria.

In June this year, Human Rights Watch urged governments and companies around the world to stop signing new contracts (and evaluate existing contracts) with arms suppliers that are providing weapons to the Syrian government, such as the Russian firm Rosoboronexport, and suggested that those providing weapons to the Syrian regime could be regarded as being complicit in the crimes committed by the Syrian army. According to a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic, these crimes could include crimes against humanity and war crimes. The Chair of the Independent Commission has said that there are ‘grounds to believe that Government forces and the Shabbiha committed war crimes, gross human rights violations and crimes against humanity’ and that similarly, ‘anti-Government forces committed war crimes, including murder, extrajudicial executions and torture’.

Rosoboronexport is not the only actor outside Syria accused of providing material support to Bashar Al-Assad’s regime. On 4 September, the New York Times reported that Iran has resumed shipping military equipment to Syria through Iraqi airspace. According to United States intelligence, it is likely that these planes are carrying weapons and military equipment. Last March, Iranian flights through Iraqi airspace were stopped for some time after Iraq was requested to do so by the United States. However, when these overflights resumed in July, Iraq accepted Iranian assurances that its airplanes carry only humanitarian aid and allowed them passage through its airspace without any form of inspection.

A series of UN Security Council resolutions have imposed an arms ban on Iran, and the latest in line ‘calls upon’ all States to inspect cargo to and from Iran in their territory if the State in question has reasonable grounds to believe it contains prohibited items. The US claims that Iraq has an obligation under these resolutions to inspect the cargo of Iranian planes that are suspected of flying arms to Syria, and accuses Iraq of allowing Iran to transport weapons to Syria through its airspace. These accusations have been reiterated in a Western intelligence report disclosed on 20 September by Reuters. This report states that large quantities of Iranian weapons have been transported to Syria through Iraq, allegedly thanks to an agreement between senior Iraqi and Iranian officials.

Iraq has rejected all accusations, and reported last week that it has denied permission to a North Korean plane to pass through Iraqi airspace because of suspicions that it was carrying weapons to Syria. In addition, an Iraqi government official was quoted this Sunday as saying that authorities will conduct random inspections of Iranian airplanes heading for Syria on suspicion that they might be carrying weapons.

Should the cargo transported by Iranian planes in fact consist of weapons or other military equipment, such material support could be used by the Syrian army to commit gross human rights violations against the Syrian population. While at this point we can do no more than speculate as to what it is these planes are carrying, the facts and allegations cited above raise a range of questions on the possible responsibility of actors that provide support to Syria. Can such actors be regarded as aiding or assisting the internationally wrongful act(s) committed during this conflict?

Reports have drawn attention not only to the support provided to the Syrian regime, but also to the support that opposition forces in Syria have received from actors outside Syria. This allegedly includes military support from Saudi Arabia, Qatar and Turkey, as well as support from the US, France and the UK (which has somewhat curiously been referred to as ‘non-lethal’ assistance). It should be noted that the general rule on aid or assistance in international law deals only with the responsibility of a State providing aid or assistance to another State. It remains a somewhat troubling lacuna that support to opposition forces, at least as a matter of general international law, will not easily engage the responsibility of supporting states for aid or assistance. Of course, it could be argued that States providing support to the Syrian opposition are acting in violation of international law, for example because such conduct is not in accordance with the principle of non-intervention.

For the States that provide support to the Syrian government the legal situation appears to be different. Article 16 of the ILC Articles on State Responsibility (ASR) provides that a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so 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. In its commentaries, the ILC further clarifies that knowledge of the circumstances of the wrongful act is not sufficient; a State is only responsible for aid or assistance if it intended to facilitate the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.1)

It is apparent that there are several hurdles to be crossed before responsibility for aid or assistance can be established. In its commentaries to the ASR the ILC has stated that a State may be held responsible if it ‘provides material aid to a State that uses the aid to commit human rights violations’, but only if it was ‘aware of and intended to facilitate the commission of the wrongful conduct.’2) Information about the situation in Syria is widely available, and ‘knowledge of the circumstances of the internationally wrongful act’ is arguably present. However, it is not clear how one would establish that Iran intended for its material support to be used to commit gross human rights violations in the absence of explicit pronouncements illustrating such intent. The intent-requirement has indeed been subjected to serious criticism due to the practical difficulties relating to the establishment of a State’s intent.3)

Another ambiguity relates to the question whether supportive conduct should reach a certain threshold in order to be qualified as aid or assistance. For example, should Syria have used the Iranian weapons for the commission of its crimes in order for Iran to be held responsible for aid or assistance? The ILC’s commentaries in this respect are contradictory. On the one hand, they provide that the aid or assistance need not have been essential for the performance of the internationally wrongful act, but rather require that it should have ‘contributed significantly to that act.’4) This implies that some (undetermined) form of causation should be taken into consideration. On the other hand, however, the commentaries simply state that aid or assistance need not be substantial but ‘may have been only an incidental factor in the commission of the primary act’, contributing ‘only to a minor degree, if at all, to the injury suffered.’5) This disparity makes it particularly difficult to indicate when supportive conduct will be considered as aid or assistance.

A different but related issue concerns aid or assistance provided to States that themselves provide aid or assistance to a wrongdoing State. Iraq’s role may, at least based on the above-mentioned allegations, be an example. Its role would be complicated, as it is not accused of actively providing weapons to Syria but rather of allowing such weapons to pass through its airspace without taking any action. The first question would be whether this conduct should be qualified as active support (which would be the case if Iraq were to give explicit permission for these overflights) or as support by omission.6) While it cannot be excluded that aid or assistance can take the form of an omission, the fulfilment of the requirements set out above in such a case would appear to be more difficult to establish. For example, it would have to be determined whether Iraq’s conduct was a conscious choice aimed at facilitating the transfer of weapons so that they may be used to commit gross human rights violations, or mere passivity (or even inability) lacking any form of intent whatsoever. Moreover, one may wonder whether Iraq should be considered as aiding or assisting Iran by allowing it to provide aid or assistance to Syria, aiding or assisting Syria in the human rights abuses of its people, or aiding or assisting both?

In view of the somewhat clouded nature of the principle of aid or assistance, the question should be considered whether we need at all to evaluate the legal position of, for example, Iran and Iraq in these terms. In a recent book chapter, Olivier Corten and Pierre Klein argue that we should resort to the concept of due diligence in many situations in which aid or assistance cannot be established because of its strict conditions of application7) (the Corfu Channel case and the Application of the Genocide Convention case are analysed to illustrate this argument).

Responsibility for a failure to exercise due diligence can be established without having to establish intent, as it requires only that a State knew or should have known that certain unlawful conduct was likely to occur. In such situations, a State should take those measures that are reasonably within its power to make sure that its territory is not used for activities contrary to the rights of others (in this case, the rights of the Syrian population and, if one were to argue that the Syrian conduct is in violation of an obligation erga omnes, the rights of all States of the international community), regardless of whether the State in question could in fact have prevented the unlawful conduct.

If one were to argue that Iraq knew or should have known of the possibility of Iranian airplanes carrying material support to Syria and of the risk that this support could be used to commit gross human rights violations, this would entail that Iraq is under the obligation to take measures within its power to prevent such unlawful conduct. These measures could reasonably include inspecting the cargo of airplanes that are suspected of carrying weapons and military equipment through its airspace. The same approach could of course be applied to Iran. In this respect one may think of a due diligence obligation of supporting States to make sure that their support is not used for the commission of internationally wrongful acts.8)

Should the international responsibility of all three States be established, it would still have to be determined if and how this responsibility should be shared: who can be held responsible for what, and what does this entail in terms of reparation? The multitude of questions raised by this situation once again illustrate the complexity and importance of the topic of shared responsibility in international law.

 

FOOTNOTES

• 1) International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,2001 (A/56/10), at 66 para. 5↑
• 2) Ibid., at 67 para. 9.↑
• 3) See, also for a defence of the inclusion of the intent-requirement in article 16 ASR, Helmut Aust, Complicity and the Law of State Responsibility (CUP, 2011) pp. 230-249.↑
• 4) Supra note 1, p. 66 para. 5.↑
• 5) Ibid., p. 67 para. 10.↑
• 6) See Georg Nolte & Helmut Aust, ‘Equivocal Helpers – Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly 1 at 10.↑
• 7) Olivier Corten & Pierre Klein, ‘The Limits of Complicity as a Ground for Responsibility: Lessons Learned from the Corfu Channel Case’ in Karine Bannelier et al (eds.), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, 2011) 315 at 316.↑
• 8) As argued by supra note 6 at 15.↑