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.

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.

Procurator General of the Dutch Supreme Court concludes to reject appeal against Srebrenica judgment

 Posted by: Nollkaemper André

On 3 May, the Procurator General of the Supreme Court of the Netherlands (mr. P. Vlas) concluded in his so-called ‘advisory opinion’ that the appeal against the Judgment of the Court of Appeal of the Hague, which found that the Netherlands was liable for evicting Bosnian nationals from the compound of Dutchbat in Srebrenica on 12 July 1995, should be rejected. The main task of the Procurator General of the Supreme Court of the Netherlands is to provide independent advice (known as ‘advisory opinion’) to the members of the Supreme Court on how to rule in the cassation proceedings that are before the Court.

The advisory opinion is very rich in legal analysis of questions of shared responsibility. It cites no less than four papers written as part of the SHARES Project, and will be commented upon more fully at a later stage. A few quick points that stand out will be identified below.

The core issue in the advisory opinion is the basis for attribution of conduct to a troop-contributing State and/or the UN. On this point, the Procurator General rejects the argument of the State of the Netherlands (identical to the position of the UN) that attribution of conduct is governed by Article 6 rather than 7 of the Articles on the Responsibility of International Organizations (ARIO). Thus, attribution is governed by the standard of effective control, as stipulated in Article 7 (par. 4.10, par. 5.4).

Critically, Vlas then rejects the argument of the Court of Appeal that Article 7 allows for dual attribution. He cites Crawford and Olleson for the proposition that the purpose of Article 7 ARIO ‘is not to determine whether particular conduct is attributable as such, but rather it addresses the question of to which of two entities (the “borrowing” international organization or the “lending” State (or international organization), the conduct is to be attributed’ (par. 4.12). Vlas thus construes Article 7 as a ground for exclusive responsibility, not allowing for ‘independent responsibility’ of the troop contributing State (par. 4.13).

It can be observed that the analysis of Article 7 is rather thin, and does not address the strong support for the possibility of dual attribution. This observation also sits uneasily with a later part in the advisory opinion (see below), where Vlas does recognise the possibility of shared responsibility.

In any case, this reasoning differs significantly from that of the Court of Appeal. Not only had that Court expressly left open the possibility of dual attribution, but it also held that for determining who is responsible, it needed to be determined whether or not the State exercised effective control. For the Procurator General, the former point is incorrect and the latter question is irrelevant. If the UN exercises effective control, it is exclusively responsible. If it does not exercise effective control, the State retains responsibility, without a need to show effective control. This also means that Vlas did not see a need to discuss in his advisory opinion the (innovative) argument of the Court of Appeal based on the ability to prevent.

Whereas at this stage of the reasoning the fate of the Judgment of the Court of Appeal looks unhappy (and the advisory opinion accepts the relevant ground for cassation), the Procurator General does reject the appeal aimed at annulment of the Judgment of the Court of Appeal.

This rejection is based on two grounds. On the one hand, the Procurator General concludes on the facts that in the critical days of 12 and 13 July 1995, the UN did not actually exercise effective control (par. 5.10). Since the UN did not exercise effective control, the Netherlands ‘resumes’ its own responsibility.

Second, Vlas concludes that in the context of the evacuation of refugees and the withdrawal of the troops after the fall of the safe area, the State had an own, independent authority over Dutchbat, that encompassed command and control. On this point Vlas notes, in a factual account which stays close to the assessment by the Court of Appeal, that the government of the Netherlands actually had taken its responsibility by giving orders.

Significantly, it is then stated in the advisory opinion, with reference to literature published in the context of the SHARES Project, that in such circumstances it can be argued that both the UN and the State exercised parallel control. And, in cases of breaches of obligations, there can be a ‘shared responsibility’, whereby the State is responsible for its own conduct (through Dutchbat), and responsibility would also rest on the UN for the conduct of the organisation (par. 5.14). This reasoning, commendable for its recognition of the possibility of shared responsibility, will be commented upon later in the context of the SHARES Project.

On the questions of wrongfulness, the most interesting point in the advisory opinion is the finding that the presence of the victims on the compound of Dutchbat was sufficient to bring them under the jurisdiction of the Netherlands (par. 5.30).

The Supreme Court is scheduled to deliver its judgment on 6 September 2013.