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”.

In their joint report (currently in Dutch only) of 25 June 2020, the CAVV and AIV were careful not to retrospectively pass judgment on the Dutch NLA program (for our analysis of the report, see here), but instead adopted a more abstract and forward-looking approach, including by offering criteria to determine the permissibility of future NLA programs. Given the broader relevance for similar government-sanctioned programs elsewhere, this blog post offers a brief commentary of the report’s findings, both on the state of customary law and on the criteria identified. Ultimately, the report leaves (little) room for such programs in the future.

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.

In the end, the report concludes – in our view correctly – that there is currently no generally accepted opinio juris in support of the provision of non-lethal assistance, nor an extensive and virtually uniform practice of States in that regard.. The report does not halt there, but proceeds to identify three cumulative conditions designed to keep any possible expansion of permissible aid to rebels strictly under control. It follows that these criteria do not represent the lex lata (the law as it exists), but rather constitute a cautious foray into the lex ferenda (the law as it should be), as envisioned by Dutch lawyers and political scientists advising their government. Regrettably, that distinction is not made abundantly clear in the report.

Examining the Conditions in Detail

According to the Dutch experts, if political circumstances demand action, NLA to non-State armed groups should still be subject to three conditions.

  1. NLA Restricted to Certain Types of Assistance

This condition would limit NLA to that which clearly benefits the civilian population  (including humanitarian support – even if provided discriminately), helps to maintain public order in the territories under rebel control (and guard its borders), or facilitates prisoner surveillance (if respectful of human rights obligations).

Such an understanding is based on a broad interpretation of the Nicaragua case, which would allow the provision of assistance that cannot directly be tied to a rebel group’s capacity to wage war. There is some support for this view – both in the abstract (see Article 2 of the 1975 Wiesbaden Resolution by the Institut de Droit International), and in practice (see e.g. here, here and here) – even if its status under international law remains debatable. After all, in the Nicaragua case, the ICJ did stipulate that:

in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching.

Additionally, the Dutch experts themselves offer powerful counter-arguments for such a broad interpretation. For example, they indicate that distinguishing between groups that are exclusively concerned with purposes like the ones mentioned above and those that also join the dispute is no easy feat. Moreover, any form of assistance will (indirectly) reinforce the organizational capacity and boost the reputation of the recipient group, which in turn could influence the outcome of a conflict.

On closer scrutiny, the Dutch NLA-program illustrates that much of the non-lethal material aid that is effective for the purpose of guarding borders and prisoners or maintaining public order can also be of use in combat. Strikingly, the Dutch authorities themselves insisted that the support provided be only for ”non-offensive” use – which is hardly the same as ”civilian” use. Even so, in 2018 the Dutch Ministry of Foreign Affair’s Policy and Operations Evaluation Department recognized in a review of monitoring projects in Syria that “constant monitoring” compliance with such end use is ”impossible in a warzone context.” Moreover, in 2019, the Dutch Minister of Foreign Affairs claimed that ”the risks that non-lethal goods would become part of the battle” in Syria were already known. For example, in Syria, pick-up trucks provided as a form of NLA were used to transport fighters and equipped with heavy guns, while laptop computers also provided as NLA were used for military targeting. The same concern applies even more so to military uniforms, tactical vests with storage compartments for M-16s and AK47s (with or without body armor), and heat-vision cameras – all of which were reportedly supplied by the Dutch to groups active in the Syrian conflict.

  1. NLA Must Solely Benefit Select Armed Groups

The second condition suggested by the report demands that only those armed opposition groups that have the capacity to protect the civilian population against serious violations of international humanitarian law (IHL) and international human rights law (IHRL) may be supported. Such ability to protect is most evident in cases where relevant groups exercise effective control over part of a territory. Moreover, the Dutch experts mentioned that the recipient groups must respect the edicts of international law themselves, and that such respect must be consistently monitored by the State providing NLA.

While the first sub-criterion is both practical and pertinent, the second one establishes a threshold that is rarely, if ever, met in practice. Even if it is watered down so that the required level of compliance can be met when the recipient group’s overall conduct reflects a genuine commitment to IHL – meaning isolated instances of war crimes committed by individual members would not disqualify the group as a whole from receiving assistance – one would be hard-pressed to single out a de facto eligible armed group.

Indeed, U.N. expert bodies responsible for monitoring armed conflicts in Libya, Yemen, Syria, and South Sudan without exception, all report patterns of human rights violations and (possible) war crimes committed by all parties to the conflict – even if not to the same extent. That risk was again foreseen by the Dutch experts who cautioned that assistance to armed groups may actually increase the number of international law violations – the exact opposite of the international community’s intended goal.

The idea of an armed opposition group devoted exclusively to protecting civilians and without blood on its hands stemming from its armed insurrection may well be a mirage. That is confirmed by a rather dramatic turn of events in the Netherlands, where a Dutch national was prosecuted (but ultimately acquitted) for joining Jabhat al-Shamiya – a terrorist group active in Syria according to the Dutch Public Prosecution Service, and yet also a group on the receiving end of NLA doled out by the Dutch Ministry of Foreign Affairs. A similar case also occurred in the United Kingdom.

  1. NLA Can Only be Provided to Groups Fighting Rights-Abusing Dictatorships

The final condition put forth by the experts is perhaps the most straightforward one. Under this criterion, NLA is only allowed to be provided to armed opposition groups fighting a dictatorial regime that has committed grave human rights violations and other war crimes or atrocities. Evidence of such violations must also be verified by international expert bodies.

The urge to take action and not stand idly by in the face of acts that “deeply shock the conscience of humanity” may indeed be triggered by the failure of a hamstrung Security Council to carry out its primary responsibility to maintain international peace and security, as the report indicates. This clearly echoes other doctrines in international law, such as those of the responsibility to protect (R2P) or humanitarian intervention, that attempt to create space for State action to protect civilians abroad suffering at the hands of a tyrannical government.

However, in previous reports (see here, here and here), Dutch advisory bodies – again, in our view correctly – urged restraint, as neither of these doctrines has a strong claim to represent international law as it stands today, and both risk creating uncontrollable exceptions to the prohibition on the unilateral use of force. It stands to wonder why those same reasons would yield a different conclusion here.

Conclusion: An Unnecessary Blemish on an Exemplary Effort?

There is much to admire about the open and frank discussion in the Netherlands on the NLA program and its legal underpinning, and the fine analysis presented by the CAVV/AIV expert report. Still, the report’s three-headed exception to an otherwise blanket ban on third-State assistance to rebel groups is puzzling. First, its provenance is unclear since no clear pattern of either State practice or opinio juris has formed underpinning it. Second, it is hard to imagine any practical scenario meeting its conditions (only certain assistance to certain groups in certain situations). Also, the example of the Dutch NLA program, in reality, raises doubts as to their workability and the feasibility of monitoring compliance.

Further, in terms of what the law ought to be (de lege ferenda), one must be careful what one wishes for, having regard in particular to the tendency of third-State support to prolong and intensify non-international armed conflicts. The CAVV/AIV experts were not blind to the risks involved but put great emphasis on the twofold danger of conflict escalation and establishing an unruly precedent prone to abuse. It is precisely for this reason that the report strongly recommends that Dutch authorities exercise the utmost caution in ”wanting to create or contribute to” new legal bases for intervention (even if ”non-lethal” in nature).

Unsurprisingly, the Dutch experts wisely reminded their government to reinvigorate informal international consultations on how to deal with humanitarian emergencies and murderous regimes in the future. Perhaps, it should have stuck to that recommendation. In its present form, it is entirely possible that the report will be remembered more for its attempt to identify criteria regulating NLA to rebel groups, and less for its cautious warning against the creation of novel grounds for intervention.

(Authors’ Note: All direct quotations from the Dutch report are translations by the authors.)

Image: Syrian rebel fighters wave and gesture with machine guns while standing in the back of a pickup truck during a military parade near the southern city of Daraa on June 7, 2018. (Photo by Mohamad ABAZEED/AFP via Getty Images)