Legality of Providing Weapons to Non-State Actors

Introduction

Non-state actors and rebels – Personality in international law The Syrian Opposition Council (SOC) is the principal opposition coalition. Is SOC a legitimate representative of the Syrian people? This is one of the principle requirements for the recognition of such opposition groups under international law. Talmon points out that the SOC has received recognition as the representative of Syrian people, in 6 capacities with varying legal significance. The Gulf Cooperation Council has recognised the legitimacy of the SOC. The League of Arab States too has given recognition to the SOC. In 2011, France became the first European state to recognised the SOC, followed by other states, such as Turkey and Italy, and finally by the European Union’s Council Conclusion on Syria. On 20 November 2012, British Foreign Secretary William Hague announced to the House of Commons that “Her Majesty's Government have decided to recognise the National Coalition of Syrian Revolutionary and Opposition Forces as the sole legitimate representative of the Syrian people.

However, the Syrian Bassad government is also still in control of parts of Syria, and therefore, the armed oppositions groups can also be treated as insurgents. In international law, insurgent groups can also receive recognition. However, the words used to refer to the SOC, that is, ‘legitimate representative of aspirations of people’, is not the same as representative of people.

A distinction also has to be drawn between political and legal recognition. The political act of recognition of an opposition group means that the recognizing State is willing to enter into political and other relations with that group. Legal recognition relates to establishment of a legal status for the entity, including the intention to be involved in legal relations with the entity. That has not happened as yet with respect to the SOC and the UK.

Principle of non-use of force (UN Charter, Article 2(4)) provides that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. Syria is an independent sovereign state.

EU Council Common Position 2008/944/CFSP on arms export control by EU members This concerns an EU member states’ agreement not to export military technology and equipment, in relation to the criterions given in the resolution. Criterion 2(c) relates to denial of export licenses when export may lead to the use of arms for the violation of international humanitarian law. The UN Commission of Inquiry has already reported that such weapons have been used by anti-governmental armed groups to commit extrajudicial torture and killings.

Criterion 3 provides that there will be a denial of an export licence when such arms and weapons will lead to the prolongation of an armed conflict in the country of final destination

Criterion 4 provides that if such weapons lead to the creation of regional instability or peace, then there will be an export ban on these. There is a possibility that these weapons are used against Israel by the Syrian opposition groups.

Therefore, as per the provisions of the EU Common Position, such a transfer of weapons by the UK shall be illegal.

Security Council resolutions on arms embargo with relation to individuals and entities associated with al-Qaeda, particularly, SC resolution 2083 (2012) provides that all member states shall take measures to ensure that there is no direct or indirect transfer of arms and weapons to al-Qaeda and its affiliates. Some of the Syrian armed groups such as al-Nusra are said to be affiliated to the al-Qaeda

Arms Trade Treaty (ATT), regulates the international trade in conventional arms – from small arms to battle tanks, combat aircraft and warships. Under this, the states are under a duty to not allow the provision of arms and weapons, if such transfer would be in violation of the principles of the UN Charter. This includes principle of non-use of force, principle of non-intervention and Chapter VII of the UN Charter. In particular, Article 6 provides that states shall not transfer arms if such transfer leads to their use in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes.

Legality of providing weapons Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits): In this case, the ICJ rejected any rights of states to intervene in support of any armed rebellion or opposition in another state. Case concerning Armed Activities on the Territory of Congo :No right of states in contemporary international law to support armed opposition in other states.

This is the most significant international law response to indigenous people signed on 13th September 2007 by the UN General Assembly. The UNDRIP was adopted by an overwhelming majority of the General Assembly with 144 members voting in favour of the UNDRIP and only 4 members voting against it. It is noteworthy that the declaration was a result of over a decade of work done towards international consensus on the rights of indigenous people. The Declaration concerns the safeguarding of certain rights of indigenous people, such as the right against genocide, exploitation and forced assimilation, the right against calculated dispossession of the resources and involuntary removal from their lands as well as the right to safeguard their language, culture and religion.

Principle of non-intervention is contained in UN Charter, Article 2(7) which provides that the United Nations shall not intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.