Non-lethal Assistance and the Syrian Conflict: Lessons from the Netherlands | Just Security - July 20, 2020 |

Whether one thinks of Syria, Libya, Yemen, or Ukraine, third-State involvement is undeniably a common feature of many - if not most - ongoing non-international armed conflicts. While the direct provision of arms to non-State armed groups is widely deemed contrary to international law, recent years suggest that States feel less reticence to provide so-called "non-lethal assistance" (NLA), understood as material aid not designed to inflict serious bodily harm or death. In particular, in the context of the Syrian civil war, such aid has been provided to various rebel groups, including by the United States as well as by several European countries.

Of these countries, the Netherlands provides a particularly fascinating case study. This is not so much because of the scale of its NLA program, which remained altogether modest with a total cost of around USD 30 million. Rather, the intense dialogue between the executive and legislative branches in the Netherlands offers a unique insight into the type of NLA equipment that was provided, the processes used to vet beneficiaries, and the efforts taken to monitor where provided equipment ended up and how it was used. Parliamentary scrutiny intensified particularly after media reports in 2018 exposed the full extent of the aid program. As part of such scrutiny, the Dutch parliament commissioned a joint report from two expert bodies, the Advisory Committee on Public International Law (CAVV) and the Advisory Council on International Affairs (AIV) on the support of foreign non-State armed groups through "non-lethal assistance".

Where Does Custom Stand?

The report first recalls that arming and training foreign non-State armed groups, as well as otherwise supporting these fighters in a way that directly buoys their violent acts, breaches the prohibition on the use of force set out in Article 2(4) of the United Nations Charter and the foundational international law principle of non-intervention. The non-intervention principle would also be violated in situations wherein the assistance provided results in coercion in matters on which the de jure government must be allowed to decide freely. These conclusions are based on longstanding jurisprudence by the International Court of Justice (ICJ), specifically in the landmark 1986 Nicaragua case, and later confirmed in the 2005 Armed Activities judgment, and are not as such particularly controversial.

The report then engages in a somewhat confusing thought experiment, phrased as follows:

If on the basis of recent State practice a new rule were to develop that permits certain types of aid, under specific circumstances and to certain armed opposition groups only, it is of great importance to strictly frame such an expansion of permissible aid on the basis of three conditions. (emphasis added)

This understanding appears to flow from an earlier section of the report that describes recent State practice and opinio juris possibly indicating an impending change in customary international law. Examples of such practice, as relied upon in the report, include non-lethal aid to Syrian rebel forces (including by the United States), and a 2013 EU Council Decision relaxing an already fragile European arms embargo on Syria in favor of rebel forces. More questionably, reference is made to an exception to the Libyan arms embargo imposed by U.N. Security Council resolution 1970 (2011) which allows non-lethal assistance to certain armed groups (here, the report appears to overlook the fact that the Council is not bound by the non-intervention principle in exercising its Chapter VII powers). Conversely, the report recognizes that State positions on the permissibility of NLA remain" diffuse." Thus, while Russia and Iran condemned third-State support to anti-Assad rebels, Western powers criticized Russian NLA to eastern-Ukrainian separatists.

Wales Summit Declaration | NATO - Sept 4, 2014 |

We, the Heads of State and Government of the member countries of the North Atlantic Alliance, have gathered in Wales at a pivotal moment in Euro-Atlantic security. Russia's aggressive actions against Ukraine have fundamentally challenged our vision of a Europe whole, free, and at peace. Growing instability in our southern neighbourhood, from the Middle East to North Africa, as well as transnational and multi-dimensional threats, are also challenging our security. These can all have long-term consequences for peace and security in the Euro-Atlantic region and stability across the globe.

Our Alliance remains an essential source of stability in this unpredictable world. Together as strong democracies, we are united in our commitment to the Washington Treaty and the purposes and principles of the Charter of the United Nations. Based on solidarity, Alliance cohesion, and the indivisibility of our security, NATO remains the transatlantic framework for strong collective defence and the essential forum for security consultations and decisions among Allies.