As the Syrian conflict rages on, casualty figures are rising fast and the exodus of Syrians is also speeding up. As a result, the United States, Britain and France are getting closer to supporting the rebels with weapons and military training. To that end, they are discussing the lifting of the arms embargo they imposed on Syria in 2011.
What is the purpose of such an embargo? What would be the meaning of lifting it? To what extend does international law allow for the arming of rebels in a country? To get an answer to these questions, Mint Press had an exclusive interview with Olivier Corten, a professor of international law at the University of Brussels (Belgium). He has written a number of books and articles on international humanitarian law and the prohibition of the use of force between countries.
Mint Press News (MPN): The United States and the European Union are contemplating lifting their arms embargo on Syria. What is exactly the meaning of such an embargo in international law?
Olivier Corten (OC): Under normal circumstances and in the framework of what we could call usual trade cooperation, any government can sell arms to any other government in the world, including when these arms serve to fight an armed domestic rebellion. This is only valid in the framework of government-to-government relations though, because it is forbidden to arm other entities. If certain States decide to impose an embargo on a country, it means they no longer can sell arms to that specific country’s government.
MPN: Does that mean any country can decide on an arms embargo on any other country whenever they want?
OC: Well, in any case, a State never has an obligation to deliver arms to a particular country, except when they have signed a cooperation treaty. In other words, a government can always decide whether it wants to sell arms to a given country or not. You don’t need an embargo for that. You just decide you don’t sell arms and that’s it.
If there is a cooperation treaty, by which, for example, a government compromises itself to supply a certain amount of military equipment and/or arms every year to another country, imposing an embargo on that country would entail a violation of that treaty. And in that case, the country put under embargo could say there is a violation of international law since the treaty is no longer respected. The only acceptable exception to this is when the embargo is imposed by a U.N. Security Council Resolution, because U.N. Resolutions supersede bilateral treaties.
MPN: Do I understand you well, governments actually don’t need to impose arms embargoes; they can simply decide not to sell arms?
OC: Let’s be clear, legally speaking, an embargo is totally useless. In the case of the European Union, it may serve as the expression of the willingness of the 27 member states to adopt a common policy and have it respected. Because when the EU adopts a common position, it means that if one EU-country does not respect it, the others and the European Commission could argue that there has been a violation of European law and take legal measures against the violator.
If you want, the fact that the U.S. and the EU have adopted an arms embargo on Syria is legally speaking not necessary but it serves as a sort of declaration of multilateral consensus.
MPN: Does that mean it is legal for other countries, like Russia for example, to go on selling arms to the Syrian government, since Moscow is not bound by the embargo?
OC: Well, things are a bit more complicated than that. As I said, under normal circumstances, it would indeed be perfectly legal for any country to sell arms to the Syrian government. But when there is an internal conflict raging, there is a general understanding that you cannot favor one of the contending parties over the other. If you do, it could mean for example that you go against the rule of self-determination of people, which says that people should be able to decide on their political rulers without external interference. In other words, when there is a civil strife going on, all governments should refrain from delivering arms to any of the parties.
There is one exception to that rule: when the rebels are supported by external powers. This was the case in Mali: The rebels there were supported by foreign states; it is then legally acceptable for other countries to intervene by giving arms to the government, to counterbalance the help given to the rebels. But then, this is no longer considered as an internal conflict, strictly speaking.
MPN: Could we argue then that in the Syrian case, it would be the other way around? Since some external countries are helping the government, it would be legal for the EU and the U.S. to intervene by aiding the rebels?
OC: No, the argument is not valid the other way round. You may intervene in favor of governments under certain circumstances but you may never intervene in favor of rebels. This would be a clear violation of the prohibition of the use of force, which not only forbids States from using force but also forbids them to help others using it. Again, the only exception is when there is a U.N. Security Council Resolution authorizing it.
MPN: Then, if the U.S. and EU arm the Syrian rebels, it would be illegal?
MPN: This looks like a very clear and straightforward answer to me.
OC: Well, yes. It is clearly illegal. And they know it very well. They can only give humanitarian aid, not arms.
MPN: What exactly is ‘humanitarian aid’?
OC: This is the problem. There is some sort of explanation of what humanitarian aid is in a 1986-groundbreaking ruling of the International Court of Justice (ICJ) that condemned the U.S. for their military help to the Nicaraguan rebels, the Contras, in the 1980s. In this ruling, the Court specifies that purely humanitarian aid, like medical care, is not forbidden. But there is a margin of interpretation of course.
In a speech delivered earlier this month to the parliament, the British foreign secretary, William Hague, declared that Britain would only give humanitarian support and what he called “non-lethal military equipment” to help civilians who are victim of the war in Syria. But he also spoke of “armoured four-wheel drive vehicles,” as well as “personal protection equipment including body armour.” Although he has been very careful in his wording, I personally have my doubts about the fact that four-wheel drive vehicles and body armour are humanitarian aid.
The ICJ ruling speaks about medical care, food, clothes … not about “body armour” or “four-wheel drive vehicles.”
When John Kerry, during a press conference in Rome on 28 February 2013, spoke about giving humanitarian support to Syria, he was ambiguous as well, deliberately ambiguous, I’d say. The danger here is that States use this exception of humanitarian aid that is authorized and seek to broaden it.
MPN: But civilians are dying in Syria. The situation looks dramatic. What can be done about it?
OC: Give medical care, food, shelters … to civilians. Additionally, at the request of the Syrian government, the U.N. is now starting an inquiry into the use of chemical weapons. As for those who violate international law, there is always the possibility of a U.N. Security Council Resolution.
For example, when Russia used force against Georgia a few years ago, Moscow argued that they had to intervene because there was a genocide going on; and because Russian soldiers had been attacked by Georgia, it also argued that it was a case of ‘self-defense,’ which is one of the most classical arguments used in an international framework and the only case where a country can legally use force against another in the absence of a U.N. Resolution. But a lot of countries disagreed and said a U.N. Resolution was needed before the Russians – or others – could intervene.
MPN: In the case of Libya, there was a U.N. Resolution, yet the legality of the intervention there is contested.
OC: U.N. Resolution 1973 spoke of “all necessary means” to protect civilians. On that basis, in the beginning of the war in Libya, NATO and other countries attacked the Libyan army near Benghazi because it was threatening civilians there. There was a broad international consensus then to say it was acceptable and within the U.N. mandate; the legality of that intervention was not contested.
This intervention proved to be insufficient though, so NATO started attacking Libyan government infrastructure elsewhere, even though they did not represent a clear threat to civilians. And then, in a third phase, they armed the rebels, which I don’t think the U.N. Resolution was intended for. But these countries argued that because rebels were protecting civilians and since the U.N. Resolution spoke of “all necessary means” to protect civilians, arming the rebels was equivalent to protecting civilians. This is a very broad interpretation and it was contested by other countries.
The consequence was that several months later, Russia and China refused a U.N. Resolution on Syria because they thought it was too dangerous, even if it were very carefully drafted, in humanitarian terms, it could still be interpreted politically. They did not want that again.
MPN: In other words, even if there were a U.N. Resolution, there still could be an issue about how to implement it?
OC: The drafters of the U.N. Charter at that time had hoped for a sort of U.N. army to implement the Security Council Resolutions. But it was not possible for States to agree on that. So we are now left with two possibilities. Either the U.N. uses peacekeeping soldiers: in that case, countries wishing to contribute can “lend” soldiers to the U.N. on a case-by-case basis to participate in a humanitarian mission.
The second possibility, that exists de facto since the 1991 intervention in Kuwait but is not in the U.N. Charter, is that the U.N. authorized individual states to implement the U.N. Resolution, again on a case-by-case basis. In other words, regional organizations or even states could use the resolution to intervene. For example, the resolution on Kuwait said something like “States who cooperate with the government of Kuwait” — the resolution on Libya said “all states that notify the U.N. secretariat,” or something like that.
MPN: This means that different States could choose to implement the Resolution in different ways?
OC: Yes, there could be different interpretations of a Resolution and different ways to apply it. In the Libyan case, each country did not interpret the Resolution in the same way. NATO designated some targets in Libya and some countries accepted to hit these targets, whereas others refused because they thought it was not justified nor within the U.N. mandate. But in practice, they still cooperated.
MPN: If I remember well, there is a provision somewhere in international law that allows people from a country to fight an oppressive government; what about using that provision?
OC: Yes, there are two possibilities. The first is self-determination of peoples, or the right of peoples to freely choose their political status; if it not respected, people can resist, including by using force. But this provision was not accepted as a general provision by most Western countries; they argued that it was meant to be limited to colonial situations. They wanted to avoid that such a situation would lead to the secession of a part of a country for example.
The second approach is a human rights perspective: every individual has the right to disobey the government if the government does not respect international human rights rules.
But this still does not mean that other countries can use force to help them. It would be far too dangerous to let each and every single State to decide when and where to intervene or not.
So there is a clear distinction to be made between, on the one hand, a violation of international law by a government against its own people; and, on the other hand, the way you react to it or take sanctions against it.
If we let each country decide on when and where it wants to intervene, we would be going back to pre-U.N. Charter times. This is how it used to be before the creation of the U.N. multilateral system, in the XIX century for example, when European powers intervened in the Ottoman Empire under various excuses. This is no longer acceptable, sanctions should be centralized.
The ICJ ruling on Nicaragua was very clear on that too:
As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance. Indeed. it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the interna1 affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law.
(Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America); Judgment of 27 June 1986; para246).
The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News’ editorial policy.