Introduction
Civil war invariably devastates and shatters the very foundations of the social fabric, the economy, and the institutional–legal settings of the state affected. Yet, until not very long ago, international law basically viewed civil wars as domestic affairs. It essentially addressed the aspect of third state involvement, but only insofar as it affected international relations, and, moreover, tended to safeguard the interests of the legitimate government (aside from rare instances of belligerency). However, since the Second World War, we have seen “internal” aspects of civil wars gradually being drawn into the orbit of international law in three areas: the legal status of agreements concluded between insurgents and the government,Footnote 1 conflicts qualifying as self-determination wars, and, last but not least, the ever-increasing extension of the norms of international humanitarian law (IHL) to non-international armed conflicts.
Nonetheless, these developments have had very little impact on another important area — namely, aid/support for the warring parties in “ordinary” civil wars (hereinafter simply referred to as “civil wars”), which are those internal conflicts not qualifying as wars with the aim of asserting the right to external self-determination.Footnote 2 With respect to aid to the warring parties in civil wars, international law has remained basically unchanged over time, to the extent that a number of scholars still refer to a “traditional” approach on the part of international law in this respect.Footnote 3 In extremely simplified terms, third states may support the legitimate government, whereas any support for the insurgents is prohibited as amounting to illicit interference in the internal affairs of the affected state or even, depending on the form it takes, to illegal use of armed force against the latter.
Of course, in practice, even the “traditional” legal regime is much more complicated than that, as we shall see, and still raises several questions. In any event, two — partly intertwined — new factors call for a re-assessment of this traditional approach: (1) a greater understanding of the dynamics and realities of civil wars, thanks to a number of studies (which will be referred to in due course) from the angles of economics, conflict resolution, and history and (2) the recent practice of states, international organizations, and non-governmental organizations (NGOs) in the context of, and with regard to, recent and current civil wars occurring in Syria, Libya, Iraq, Yemen, Ukraine, and South Sudan, which we have selected as being emblematic in the context of the present study.
The situation in Syria, which will be our main case study, has become incredibly entangled. The fight against the Syrian government and its various consequences, including the evacuation — in some cases, tending towards ethnic cleansing — of the civilian population from a number of rebel-held areas,Footnote 4 are now only one aspect of the war in Syria, and a number of other situations have arisen over time, including the rise of the Islamic State of Iraq and Syria (ISIS) / Daesh and the resulting anti-ISIS military campaign by the international coalition, both in Iraq and Syria; the Turkish military incursions in these two countries, aimed at preventing the Kurds from creating an independent Kurdish entity (including the deployment of Turkish troops across northern IraqFootnote 5); the decision of the US administration to arm Kurdish elements of the Syrian democratic forces (an alliance of Kurdish and Arab fighters) and to back them with air support against ISIS/Daesh;Footnote 6 and the direct deployment, inter alia, of US and French special forces in northern Syria to assist Kurdish-led militias.Footnote 7 These are only some of the major collateral crises that have resulted from the Syrian civil war. All of these developments pose complex legal issues, and international legal scholarship is already looking into them.
Why then, among all of these critical situations, do we consider foreign interventions in the Syrian conflict as a paradigmatic case? It is because the above-mentioned developments, including the emergence of ISIS/Daesh,Footnote 8 are major byproducts of the escalation of the turmoil in Syria into an all-out civil war and because foreign interventions have played a major role in contributing to this escalation. In other words, it is important to focus on the initial phase of the Syrian crisis, which generated all of the rest of the events: an uprising against an authoritarian government, followed by brutal repression by the latter and rapidly contaminated by multiple foreign interventions on both sides, which played a crucial role in opening the way for the civil conflict that later degenerated into total mayhem. The purpose of this article, therefore, is to assess the legality and the implications of a crucial factor: foreign intervention in civil wars, generally “defined as the transfer of resources from an external state to a contesting party in a civil war,” of which aid to the government and aid to insurgents, respectively, represent the two main facets.Footnote 9 Our goal is threefold: taking stock of the basic features of the existing legal framework with regard to aid to governments or insurgents; identifying its serious defects; and proposing radical changes to the main normative features of the (not coincidentally) highly problematic existing framework.
Although there are several possible ways of classifying internal conflict,Footnote 10 two situations are particularly significant in the context of the present research: (1) non-international armed conflict as defined, in particular, by the International Criminal Tribunal for the former Yugoslavia,Footnote 11 that is, internal conflict exceeding the threshold of mere “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature,”Footnote 12 irrespective of whether it is still possible to identify a legitimate government or not (the non-international conflict being actually characterized by the presence of competing governmental authorities),Footnote 13 and (2) any situation constituting a clear and serious risk of escalating into a civil war (and, therefore, possibly including situations still at the stage of internal disturbances and tensions), meaning a situation at risk of civil war that would (or should) be identified as such by the competent bodies of relevant international organizations, such as the United Nations Security Council (UNSC), including via a Presidential Statement, the United Nations Secretary-General, pursuant, in particular, to Article 99 of the UN Charter Footnote 14 and UN General Assembly (UNGA) Resolution 43/51 of 5 December 1988,Footnote 15 the African Union Peace and Security Council, the Permanent Council of the Organization of American States, or the like. Even though the definition of a non-international armed conflict is notoriously difficult to apply in practice, operational/institutional tools to implement both of the foregoing concepts do exist, and practice does show that they are workable. For example, in July 2012, the International Committee of the Red Cross considered that the Syrian conflict had by then reached the threshold of a non-international armed conflictFootnote 16 and so did the Independent International Commission of Inquiry on the Syrian Arab Republic, established by the United Nations (UN) Human Rights Council on 22 August 2011.Footnote 17 Furthermore, the indication that the Syrian crisis was at risk of escalating into a civil war could have been derived at the latest from UNSC Resolution 2042 (2012), which was adopted on 14 April 2012.
We shall begin by considering the notion of legitimate/constituted government, which plays a considerable role in the present field of research. We shall then outline the main features of the legal framework concerning aid to governments, and particularly intervention upon request, before identifying the complexities and problematic aspects that lie behind an apparently non controversial legal setting authorizing intervention on behalf of legitimate governments. A similar analysis will be carried out with regard to the other side of the coin — that is, aid to insurgents. At that point, we shall question the coherency and adequacy of the current legal framework, taking into account the realities and implications of civil wars and, thus, integrating into the legal analysis the results of conflict studies on civil wars. This will lead to the concept of “conflict minimization.” We shall finally propose to radically reconsider the international legal and policy approach to foreign interventions in civil war, including the very delicate question of how the proposed framework relates to brutal repression by governmental authorities as a contributing factor to the outbreak of civil wars.
The (Critical) Notion of “Legitimate/Constituted Government”
The definition of what is a legitimate (that is, lawful) government under international law is so critical in this area that it needs to be reviewed at the outset. International law grants the “highest authorities” of a legitimate government such important rights — in particular, the right to request foreign assistance (including so-called “intervention upon request”) — that extensive legal analysis has been devoted to defining this fairly fundamental concept.Footnote 18 The reason why we are using the dichotomy “legitimate/constituted” (or established) government is that the legitimate government still appears to be essentially the constituted/established government — that is, the government that effectively controls a significant portion of the state and that represents at the same time a significant portion of the population. In other words, a sufficiently effective and representative government qualifies as the constituted/established government, and this makes it the legitimate government from the point of view of international law, irrespective of foreign recognition. Thus, from the territorial angle, it has been argued that control of the capital of the state has a special practical relevanceFootnote 19 and that certain geographical features might also come into play.Footnote 20 With respect to representation, this should be understood as “consent of the governed,” which is expressed in one form or another (not necessarily a democratic one) and possibly even as an implicit form of consent — for example, by way of obedience.Footnote 21 Yet the application of these two basic requirements (sufficient effective control and a sufficient degree of representation) may be difficult to verify in practice, and inevitably leads to case-by-case assessment, given that borderline situations, where there appears to be a serious default on one or even both of the two requirements, are far from rare.Footnote 22
Although there tends to be a presumption in favour of the established government, there may be situations where strict application of these criteria would actually lead to the conclusion that there is no constituted government.Footnote 23 In such critical situations, two exceptional factors may play a major role in artificially keeping alive a “legitimate” government, in spite of the fact that the objective realities would militate against its being considered as the constituted authority. The first situation is where the UNSC so decides pursuant to its powers under the collective security system. The second situation is where international recognition makes the difference by recognizing (or not recognizing) a given (defective) authority as the legitimate government. Practice offers several examples of both. In Mali, the allegation that consent to French intervention came from a legitimate government, in spite of the fragile situation of Mali’s transitional government at the time, was confirmed by the backing of a large share of the international community, including states that had voiced criticism of the intervention, as well as such important organizations as the Economic Community of West African States (ECOWAS) and the European Union (EU).Footnote 24 In Libya, the government of National Accord of Libyan Prime Minister Fayez al-Sarraj was endorsed in 2015 by the UNSC “as the sole legitimate Government of Libya.”Footnote 25 In Yemen, the Hadi government, in favour of which the Saudi Arabia-led coalition intervened in 2015 after Abd-Rabbu Mansour Hadi had fled into exile as the Houthi Shiite rebels threatened to overrun his last stronghold, was recognized by the UNSC as the legitimate government in spite of the fact that it had lost control of the capital Sanaa in September 2014.Footnote 26 However, even in these exceptional (but, by no means, infrequent) cases, legal fiction cannot completely conceal the reality in the field; third states or international organizations may thus take account of it and consent to officially dealing with entities that dispute the legitimacy of the internationally recognized government.Footnote 27
An additional and highly controversial issue in this area is whether the democratic character of a government, as well as its human rights record, should also be considered as relevant requirements. Indeed, as we shall see later, in some of the most dramatic crises of the last few years, a number of states, particularly from the West, have openly challenged the legitimacy of some of the governments at issue, such as the Syrian and the Libyan governments, owing to gross human rights violations and, later, to the international crimes allegedly committed by the authorities under those governments’ responsibility.Footnote 28 This approach also has led to a doctrinal debate, especially in the context of the development of the “responsibility to protect” principle — a significant matter of controversy — where political and ethical considerations also come into play.Footnote 29 However, whatever view we may take from a political and ethical standpoint, resorting to these additional criteria, in strict international legal terms, is problematic for two different reasons. In the first place, the said practice is limited to some, especially Western, states, and states that do not accept these criteria are at least as numerous. In the second place, the practice is highly inconsistent; the benchmarks of democracy and, above all, a state’s human rights record, as distinct and additional criteria by which to assess a government’s legitimacy, are used in some cases but not used at all in analogous cases, especially those concerning allied governments.Footnote 30 We could thus conclude that these criteria are still too controversial to be considered legally founded additional requirements for a government’s legitimacy.Footnote 31 The logical consequence of this would be that openly questioning a government’s legitimacy on such grounds would amount to illicit interference in that state’s internal affairs. However, the fact is that the practical use of these criteria for judging a government’s legitimacy has much wider implications, specifically in the area of intervention in civil wars. We shall consider them at a later stage. Let us now turn to the main features (as well as the problems and complexities) of the existing legal framework on aid to governments or insurgents.
Aid to Legitimate Governments
BASIC ELEMENTS
What we see in practice is that states often provide external military assistance to legitimate foreign governments. In countless cases, this is carried out in a legally formalized manner, through bilateral military cooperation treaties or with the regular sale of weapons by one state to another. Thus, generally speaking, there seems to be little doubt that states can legally provide other states with military assistance.Footnote 32 This is no surprise; most states have a clear interest in preserving a legal option to support a foreign government whenever the common interests at stake warrant it.Footnote 33 This widespread interest among states echoes one of the ways in which the Congress system was conceived in Vienna in 1814–15, according to which “[e]ach monarch would be guaranteed his throne and territory by the other members of the alliance.”Footnote 34
The issue arises when the military assistance is provided to governments involved in civil wars or facing unrest. Actually, many states do often continue to provide military aid to allies when serious unrest or even an internal armed conflict has started (and, conversely, some governments seek such external support).Footnote 35 In several important cases, assistance to a foreign government involved in a civil war has taken the form of direct military intervention in the field. When this occurs with the territorial government’s consent, it is qualified as “intervention by invitation.” The relevant case law of the International Court of Justice (ICJ) — in particular, the well-known judgments in Military and Paramilitary Activities in and against Nicaragua and in Armed Activities on the Territory of the Congo — implies that intervention by consent is lawful.Footnote 36 Practice and opinio juris in some of the key crises of recent times (such as Syria, Yemen, and Mali) appear at first sight to bear this out.Footnote 37 Of course, the issue as to whether the government inviting intervention is the legitimate one will be preliminary to assessing the legality of the invitation.Footnote 38
An additional (and rather powerful) legal argument that has been invoked, often in combination with the legitimate government’s invitation, is counter-intervention — that is, the right for a third state to provide foreign military assistance in the field (and, correspondingly, the right of the territorial state to request it) where it is clear that insurgents opposing that government are being supported from outside.Footnote 39 This argument, for example, emerged as a supporting element even at the beginning of the armed intervention in YemenFootnote 40 and was then invoked by Saudi Arabia to justify its naval blockade of Yemen’s rebel-held port of Hodeidah as a necessary measure to prevent Iran from sending weapons to the insurgents.Footnote 41 As we shall see, this recurrent justification nevertheless raises serious problems.
AID TO GOVERNMENTS AND IHL
Generally speaking, many interventions on behalf of legitimate governments have been criticized on political and strategic grounds, but they have not been legally challenged as such.Footnote 42 Many of the same interventions, however, have been questioned insofar as they have entailed serious violations of IHL. Such has been the case, for example, with regard to the Russian military intervention in the field on the side of the Syrian government as of September 2015 as well as in respect of the military intervention in the field in favour of the Hadi government in Yemen. Russian support for the Syrian government was openly questioned insofar as it involved particular war crimes.Footnote 43 Several states — in particular, the United Kingdom, France, and the United States — have taken a very strong stand when stigmatizing the war crimes committed during the Syrian government’s offensive, backed by its allies, to retake Aleppo in the autumn of 2016 and Russia’s alleged complicity in committing those crimes.Footnote 44
With respect to Yemen, Saudi Arabia and a coalition of Arab states launched a military intervention in the form of a massive air campaign on 26 March 2015 (and a de facto naval blockade on the two main Yemeni ports), aimed at reinstalling the government of President Hadi, who had asked the Gulf states and the League of Arab States to use force against the Houthi rebels. Saudi and other Arab air forces taking part in the campaign (the coalition included aircraft from Egypt, Morocco until February 2019, Jordan, Kuwait, the United Arab Emirates, Qatar, and Bahrain, and also involved the use of ground troops from some of these statesFootnote 45) have been supported, in particular, by the United States, the United Kingdom, and France, specifically by the delivery of precision-guided munitions and intelligence and logistical aid, including the air refuelling of Saudi planes.Footnote 46 The intervention by the Saudi-led coalition in favour of the Yemeni government, which was initially, by and large, considered to be in accordance with international law,Footnote 47 was subsequently challenged openly insofar as it allegedly involved serious IHL breaches, most recently by experts mandated by the Human Rights Council.Footnote 48 In 2016, the US administration under President Barack Obama suspended the shipment of precision-guided munitions and cluster bombs to Saudi Arabia and pulled back some intelligence support, “over concerns about botched targeting in Saudi air strikes,” even though the US military continued to refuel coalition aircraft and to share selected intelligence.Footnote 49 Several unlawful attacks against civilians by the coalition, involving twenty-three US-made weapons, were also recorded.Footnote 50 More radically, in January 2018, the Norwegian government suspended exports of weapons and ammunition to the United Arab Emirates, a participant in the Saudi-led coalition. Although there was no evidence that Norwegian-made ammunition had been used in Yemen, the Norwegian government adopted a precautionary approach following allegations, by a number of NGOs as well as some Norwegian members of parliament, concerning serious IHL violations in the context of the air bombardments carried out by coalition planes.Footnote 51
It must be noted, however, that in this area double-talk is frequent; the United Kingdom, for example, refused to back the Netherlands’s proposal, formally submitted by Slovakia on behalf of the EU, that the UN Human Rights Council set up an inquiry to examine civilian deaths in Yemen.Footnote 52 On the other hand, the two situations differ in that Russia has allegedly been either directly committing war crimes through its air forces or in a situation of “complicity,” whereas the United Kingdom (and others) have possibly been in a situation of failing to “ensure respect” of IHL by providing weapons to Saudi Arabia in the knowledge that they were being used to commit war crimes.Footnote 53 However, although the former case is graver than the latter, both amount to violations of IHL. A similar assessment would also apply to other forms of anti-insurgent intervention that have entailed IHL violations. Saudi Arabia’s blockade of Yemen’s rebel-held port of Hodeidah seems to provide a case in point.Footnote 54
FURTHER CRITICAL ELEMENTS
At this stage, one might be tempted to peremptorily conclude that, in principle, the supply of military aid to a legitimate government involved in a civil war, or even direct foreign military intervention in the field (upon request and possibly pursuant to counter-intervention), would as such be legal.Footnote 55 However, on closer inspection, the actual picture, in terms of practice and opinio juris, seems to be more complex and, above all, possibly in flux. To begin with, the legal or principled impact of IHL should not be underestimated. It is evident, from the examples cited above, that its application would considerably limit the options for intervening foreign states.Footnote 56 Furthermore, it is unclear whether an intervention upon request tainted by serious IHL violations would become altogether unlawful. In this context, reference must also be made to the Arms Trade Treaty (ATT), whose Article 6, paragraph 3, stipulates:
A State Party shall not authorize any transfer of conventional arms covered under art 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used 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 as defined by international agreements to which it is a Party.Footnote 57
Under Article 7 of the ATT, each state party, in any event, prior to the authorization of the export of the conventional arms and other items falling within the scope of the ATT, must assess, in particular, the potential that the conventional arms or items might not only be used to commit or facilitate a serious violation of international humanitarian or human rights law but also “contribute to or undermine peace and security,” which could well be interpreted to mean that arms exports to any of the warring parties in a case of civil strife, including the government, would fuel the internal conflict, thus undermining peace and security.Footnote 58
It is worth noting that these provisions are reflected in a number of national laws and also specific EU acts. For example, Italian Law 185/1990 prohibits arms exports to, among others, states whose governments are responsible for serious violations of international human rights conventions, as established by the competent bodies of the UN, the EU, or the Council of Europe.Footnote 59 Furthermore, the EU Council’s Common Position 2008/944/CFSP, defining the rules governing the control of exports of military technology and equipment, provides, inter alia, that “Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination.”Footnote 60 The European Parliament thus deems the continued authorization of transfers of weapons and related items to Saudi Arabia by some EU member states to be in violation of this common position.Footnote 61 Interestingly, the UNSC-mandated panel of experts in Yemen recognized the fact that, although not tasked with the monitoring of the coalition’s transfer of weapons to resistance fighters on the side of the legitimate government, the supply of weapons to resistance forces by the coalition without due measures being taken to ensure accountability was also contributing to a destabilizing accumulation of arms in Yemen.Footnote 62
It is then argued that the principle of non-intervention in a state’s internal affairs also prohibits any disproportionate interference on the government’s side; by altering the balance in the latter’s favour, external intervention would inevitably lead to interference in the internal dynamics of any internal strife, and it is hard to see why, from this perspective, a government (possibly an authoritarian one) should be given an advantage. So it is obvious that the 2016 military successes of the Syrian government owe a great deal to Russia’s (and Iran’s, plus the Lebanese Hezbollah militias’) forceful intervention on the Syrian government’s behalf.Footnote 63 The legality of intervention by invitation in the midst of a non-international armed conflict, further to the issue of the legitimacy of the requesting government, is actually a controversial question. If some authors support the view that intervention by invitation would be licit even in the context of an internal conflict that had reached a high-intensity threshold,Footnote 64 other authoritative sources tend to restrict interventions by invitation. Thus, in the case of a classical and full-scale civil war, intervention by invitation would only “be permissible as long as the extent of the foreign military support does not exceed the dimension of an auxiliary enterprise” and does not remove the political control of the inviting government, except where foreign troops were invited “to fight secessionist groups or to reverse a military coup against a democratically elected government”; however, any government which is confronted “with a manifest and comprehensive popular uprising” would be prevented by the principle of (internal) self-determination from inviting foreign troops.Footnote 65
Some elements even point to the possibility of denying a government that has committed gross human rights violations the right to receive foreign assistance when it is confronted with non-armed unrest. Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) considers equally responsible a state that aids or assists another state in the commission of an internationally wrongful act, on condition, inter alia, as the accompanying commentary specifies, that the assisting state be aware of the wrongfulness of the conduct of the assisted state. The said commentary includes the case of a state providing material aid to a state that uses the aid to commit serious human rights violations.Footnote 66 Some practice seems to corroborate this provision. Thus, at the fourth ministerial meeting of the Group of Friends of the Syrian People, held in Marrakech on 12 December 2012 and bringing together more than 100 states, the chairman’s conclusions called upon the international community, and, particularly, the members of the UNSC, “to increase pressure on the Syrian regime by adopting and implementing measures to prevent the Syrian regime from receiving external support and resources allowing it to commit violence against its own citizens.”Footnote 67 EU Council Decision 2013/255/CFSP of 31 May 2013 on restrictive measures against Syria prohibited, inter alia, the provision of equipment that might be used for internal repression as well as the importation from Syria of crude oil and petroleum products (Articles 1 and 5).
In any event, the principle of non-intervention could certainly be read in the sense that aid to the government should stop short of massive direct intervention in the field with the intervening state’s own armed forces. It is also worth noting that states intervening in a civil war on the side of what they consider to be the legitimate government do not always rely only on a supposed right to intervene in a civil war in favour of the legitimate government following an invitation by the latter.Footnote 68 Thus, in addition to the invitation and the counter-intervention arguments, Saudi Arabia and the other members of the coalition have argued that they had to intervene in the civil war in Yemen in collective self-defence against an alleged aggression by non-state actors against both the Yemeni state and Saudi Arabia itself.Footnote 69 Furthermore, in the debates in the UNSC on the most serious current civil war situations, several states expressed the view that third states ought not to intervene on either side, even indirectly by providing military aid. Consistently with the approach highlighted above, some states, in the context of the Syrian crisis, attached special importance to the allegations of the crimes committed by the Syrian governmentFootnote 70 or by both warring parties.Footnote 71 Not least, however, several other key states called in general (and sometimes even in rather radical terms) for a halt to the provision of weapons to any of the “warring parties,” irrespective of the commission of international crimes.Footnote 72
Certain practical elements with regard to the conflict between the Ukrainian government and pro-Russia insurgents in the East are also worth mentioning. Thus, under the former Obama administration, the United States decided not to send lethal weapons to the Ukrainian government and opted instead to provide a limited quantity of non-lethal aid.Footnote 73 Furthermore, European states are considered to be opposed to the provision of lethal aid to the Ukrainian government.Footnote 74 In both cases, however, the policy of refraining from providing lethal aid appears to be motivated, above all, by the concern to avoid military escalation.
A specific feature, in any case, is that the above-mentioned views have often been accompanied by a clear call not just for a political solution but also for active involvement by the international community (in particular, through international organizations such as the UN or the League of Arab States, in the form of mediation or good offices). In one of the many meetings on Syria that took place at the UNSC, Valerie Amos, UN under-secretary general for humanitarian affairs and emergency relief coordinator, stated that “only a genuine political process can prevent Syria from sliding into deeper fragmentation and chaos. We are looking to the Council to exercise its leadership role in that regard.”Footnote 75 In paragraph 13 of Resolution 2216 (2015) on Yemen, the UNSC requested the “Secretary-General to intensify his good offices role in order to enable a resumption of a peaceful, inclusive, orderly and Yemeni-led political transition process.”
Account should also be taken of the UNSC decisions imposing an arms embargo with regard to specific civil war situations that extended to the supply of military equipment to the government side, like Resolution 1970 (2011), imposing a comprehensive arms embargo on Libya (although followed by a number of exemptionsFootnote 76) or the general arms embargo imposed by Resolution 733 (1992) with regard to Somalia. Of course, such decisions are made by the UNSC on the basis of case-by-case assessment and cannot therefore be seen as reflecting a general practice. Nonetheless, specific UNSC resolutions may restrict the possibility of providing weapons or direct support in the field in support of a government engaged in civil strife. Paragraph 5 of UNSC Resolution 1747 (2007) provides, inter alia, that:
Iran shall not supply, sell or transfer directly or indirectly from its territory or by its nationals or using its flag vessels or aircraft any arms or related materiel, and ... all States shall prohibit the procurement of such items from Iran by their nationals, or using their flag vessels or aircraft, and whether or not originating in the territory of Iran.
Even though this resolution went (almost) unnoticed,Footnote 77 Iran clearly violated it (and the previous Resolution 1737 (2006)) by providing weapons and engaging its troops in Syria on the side of the Damascus government.Footnote 78 In the context of the conflict in the Darfur region, the UNSC demanded that the government of Sudan “immediately cease conducting offensive military flights in and over the Darfur region”Footnote 79 and, subsequently, expressed its concern that “the direct or indirect supply, sale or transfer to Sudan of technical assistance and support, including training, financial or other assistance and the provision of spare parts, weapons systems and related materiel, could be used by the Government of Sudan to support military aircraft being used” in violation of previous UNSC resolutions.Footnote 80
However, there is one well-established situation that departs from the latter elements that we have been considering in favour of a working hypothesis pointing to a prohibition on intervention in civil wars on the side of the legitimate government by providing weapons, not to speak of directly intervening in the field (unless the UNSC decides to authorize intervention in favour of one of two competing government authorities). We are referring to a legitimate government confronted with terrorist acts; practice and opinio juris point overwhelmingly to a clear right for legitimate governments to receive foreign help, including direct intervention upon consent, in their fight against terrorist movements.Footnote 81 With regard to the fight against ISIS/Daesh, this position is further reinforced by the various UNSC resolutions explicitly upholding states’ conduct to this effect.Footnote 82 This seems to be indirectly confirmed by the fact that governments confronted with internal unrest or civil war tend, in fact, to label demonstrators or insurgents as “terrorists” even when this is actually not the case.Footnote 83 Although this is far from being the only reason, governments may tend to arbitrarily attach the label of “terrorists” to their opponents with an aim to being able to rely on a stronger legal basis for requesting outside help. In response to the above-mentioned criticism by the United States, Russia denied it was trying to bolster Syrian President Bashar al-Assad and, instead, stated that its increased military activity was part of the international effort to defeat the Islamic state and that the notion of a moderate opposition in Syria was a “fiction of the West, broadly characterizing all opponents of Syrian President Bashar al-Assad’s government as terrorists.”Footnote 84
In summary, apart from a general right for states to purchase arms (provided that any relevant legal provisions on arms trade are complied with), a state confronted with a situation of internal unrest is entitled, in principle, to seek and obtain foreign assistance (including through the provision of arms). It is likewise clearly entitled to foreign assistance (including by means of direct military intervention in the field on the side of the legitimate government) when confronted with a clear-cut terrorist threat or attack. Furthermore, aid to the legitimate government may also be authorized on an ad hoc basis by the UNSC. What is unclear is what legal regime applies to the critical situations we have identified above — namely, the provision of military aid to a legitimate government that is committing human rights violations (or international crimes) in dealing with a situation of unrest; direct military intervention in the field for the benefit of a government engaged in a large-scale internal armed conflict, even where IHL is generally complied with (which is definitely not the usual pattern); and the conditions to which counter-intervention would be subject, such as the level that the prior intervention would need to attain to justify counter-intervention or whether there would also be a proportionality requirement.Footnote 85
Aid to Insurgents
Aid to insurgents may, and, of course, does, take many different forms. One rather crucial distinction, however, must be made between aid to insurgents that are not under another state’s control and those situations where insurgents actually operate under another state’s control, which would turn insurgents into de facto organs of that other state (within the meaning of Article 8 of ARSIWA). Consequently, the controlling state would take direct responsibility for the deeds of the controlled armed groups (possibly even an armed attack), in addition to any acts that might be imputed directly to that state on the basis of any other relevant grounds. Of course, such situations lead to the important and much analyzed issue regarding the conditions under which an armed group qualifies as a de facto organ of a third state, with all of the related implications in terms of international responsibility. Although some of the situations we are focusing on could raise this issue (as in the case of the pro-Russian rebels in Eastern UkraineFootnote 86), we will focus primarily on the various forms of external support to insurgents that retain their operational autonomy and are not under the control of another state.Footnote 87 That said, bearing in mind that aid to insurgents, under certain conditions, may also take the form of actually controlling the insurgents, some of the considerations on foreign intervention in civil wars that we shall develop later are also relevant to the case of insurgents operating under another state’s control.Footnote 88
Generally speaking, the legal regime applying to the provision of aid to insurgents (again, with the exception of insurgents qualifying as “national liberation movements”Footnote 89) appears to be less problematic than the issue of aid to governments, in that a general prohibition seems to apply. In its leading and well-known judgment on this issue, the ICJ articulated this principle in precise terms as being a key corollary to the fundamental international law triad: states’ equality and independence and duty of non-intervention in other states’ domestic affairs. According to the ICJ,
[a] prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.Footnote 90
The ICJ relied extensively on the UNGA Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations,Footnote 91 which was considered to reflect customary law in this area. Thus, “organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State” and “participating in acts of civil strife” in another state would breach the principle of the prohibition of the use of force when the acts of civil strife referred to “involve a threat or use of force.” The mere provision of funds, while undoubtedly an act of intervention in internal affairs, would not in itself amount to a use of force. In any case, 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, this action 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.Footnote 92
Thus, the prohibition on providing military aid of any kind or financial support to insurgents is part of the fundamental sovereignty/non-interference paradigm.Footnote 93 That said, the principle of non-intervention is one of the most elusive concepts of international law,Footnote 94 and, indeed, the concrete articulation of the prohibition in question is less straightforward than it might appear since it also depends on the form that this aid to insurgents concretely takes. The principal forms are (1) military aid; (2) humanitarian and organizational assistance; and (3) political support.
MILITARY AID
The ban on military aid, including logistical and intelligence aid, is a very strong component of the principle, also because, as illustrated above, it was grafted onto a principle of international law as fundamental as the prohibition of the use of force in international relations.Footnote 95 The opinio juris and, to some extent, the practice of states have been consistent with the prohibition on providing military aid to insurgents. Of course, this does not mean that states have refrained from aiding insurgents. They have not and still do not, but one distinctive practical feature has been secrecy; aid to insurgents has usually been provided in the context of secret operations, which can be seen as reflecting states’ perception of its illegality.Footnote 96 Conversely, in a great many situations, some states have qualified aid to insurgents as an illegal course of action under international law. Among many other examples, the alleged Iranian military aid to rebels in Yemen, and, in particular, the possible shipment of missiles or missile parts that were launched on targets in Saudi Arabia, was stigmatized by the United States as a violation of international law.Footnote 97 Russia has consistently condemned any help to rebels in Syria.Footnote 98 The German Chancellor Angela Merkel described Russia’s actions in Ukraine as a violation of the fundamental principles of international law;Footnote 99 the support for separatists in eastern Ukraine, in particular, being overtly questioned by the Council of Europe’s Parliamentary Assembly.Footnote 100
In addition to this basic principle, specific prohibitions may also apply in this regard, particularly by means of embargos decided upon by the UNSC, as previously mentioned with regard to military aid to governments. However, UNSC resolutions represent practical responses to particular cases, and there is again no single pattern. Thus, with regard to Yemen, at a time when the internal conflict had already started, UNSC Resolution 2216 (2015) imposed an arms embargo only on the insurgents’ side — that is, the Houthi leaders and their key supporters.Footnote 101 On the other hand, UNSC Resolution 1970 (2011) on Libya did impose a comprehensive arms embargo applying to all sides but, nevertheless, allowed for the possibility of supplying not only non-lethal military equipment but also arms, subject to approval by the Sanctions Committee established by the same resolution, which authorized limited supplies to the insurgents’/transitional authorities’ side.Footnote 102 UNSC Resolution 1556 (2004) imposed an arms embargo on Sudan in relation to the conflict in the Darfur region that was limited to non-governmental entities and individuals operating in the states of North Darfur, South Darfur, and West Darfur.Footnote 103
That said, serious cracks have appeared in some of the most recent crises, which raise the issue as to whether important changes in the practice of states do or do not indicate a process of modification of the customary norm. In particular, one of the distinctive features of the Syrian crisis has been the fact that, although secrecy has continued to characterize some of the operations for supply to rebel groups,Footnote 104 aid was provided in a more overt manner in some other cases. Thus, at the June 2013 meeting in Doha, Qatar, eleven states (including the United States) openly discussed how to organize the delivery of military and other kinds of aid for Syrian rebels.Footnote 105 Just a few days earlier, the United States had officially announced its decision to provide more support (including military support) to the military wing of the (then) main Syrian opposition,Footnote 106 and, in September 2013, the United States began a Central Intelligence Agency-led program of support for vetted Syrian insurgents.Footnote 107 No clear legal justification was put forward, although, apparently, these decisions were linked to the alleged use of chemical weapons by the Syrian government. In any case, the US program was never denied by the US authorities, and support for Syria’s moderate rebels was occasionally endorsed officially; in May 2014, US President Obama not only ruled out deploying US troops in Syria but also stated that “that doesn’t mean we shouldn’t help the Syrian people stand up against a dictator who bombs and starves his own people.”Footnote 108 France openly admitted to delivering non-lethal military equipment to Syrian rebels (such as bullet-proof jackets or night-vision goggles) and later also conceded that, in the second half of 2012, lethal weapons were also delivered.Footnote 109 In 2013, the United Kingdom openly started to provide non-lethal military equipment, including armoured vehicles.Footnote 110 Indeed, the EU embargo was eased in February 2013 precisely with a view to enabling non-lethal military assistance to rebels in Syria and again in May 2013 with a view to theoretically opening the door for arms exports to insurgents in Syria, although subject to an assessment of compliance with the above-mentioned EU Council Common Position 2008/944/CFSP (the two, however, being hardly compatible in principle and hard to reconcile in practice).Footnote 111
Although, subsequent to the emergence of ISIS/Daesh, some of the states supporting the rebels in Syria shifted their focus towards countering the new threat, thus beginning to adumbrate an argument based on self-defence to justify a policy of openly supporting rebel groups in Syria,Footnote 112 the support for Syrian rebels nevertheless continued irrespective of the new threatFootnote 113 and was also advocated in terms of policy.Footnote 114 Against this somewhat confused background,Footnote 115 it must be observed that the same limitations resulting from the IHL-related obligations referred to above with regard to aid to governments would also apply, of course, to aid to insurgents in the presence of evidence, or even a clearly ascertained risk, of weapons being used by insurgents to commit IHL violations.Footnote 116 Furthermore, the various legal instruments in the arms trade area referred to above with regard to aid to governments cover aid to insurgents as well. Additionally, a specific risk that emerges in this area is of diversion of regular arms supplies to conflict zones and non-state actors — a risk that calls for specific assessment.Footnote 117
Furthermore, unlike the direct military intervention in Crimea and the provision of ostensibly humanitarian aid to the pro-Russian separatist regions in Eastern Ukraine, which were both openly admitted and for which justifications were provided (see the following subsection), the Russian many-sided military support for the pro-Russian insurgents in the Donbass region (military aid, possibly direct control of certain insurgent units, plus the sending of Russian soldiers) appears to have only partially been admitted (limited to the presence of Russian “volunteers” and then “military specialists” in the East of Ukraine).Footnote 118 The alleged direct control of certain insurgent units and the sending of Russian soldiers pertain to the area of aggression/armed attack and are therefore beyond the scope of the present article. As to the provision of military aid to insurgents possibly not under Russian control, the Russian authorities’ statements on the situation in the East of Ukraine systematically referred to the dire humanitarian situation in the separatist regions and alleged violations of IHL by the Ukrainian militaryFootnote 119 and even labelled the insurgents as “self-defence formations.”Footnote 120 Thus, at least theoretically, the humanitarian intervention doctrine, which the Russian government invoked to justify its intervention in Crimea (in terms of a “humanitarian mission”),Footnote 121 could have been used to justify military aid to insurgents opposing governmental forces using force against the civilian population in breach of IHL and human rights norms, bearing in mind that one of the three conditions for resorting to this (highly controversial) doctrine is “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”Footnote 122 (which, in the case of Ukraine, is in fact widely refuted both in the legal literature and in the positions taken by international organizations).Footnote 123 One might therefore have expected this doctrine to be invoked also with regard to the provision of military aid to insurgents in Syria.Footnote 124 In the latter case, the said doctrine was indeed resorted to, but only in respect of the armed action undertaken by the United States, the United Kingdom, and France in April 2018 following the umpteenth time chemical weapons were alleged to have been used by the Syrian government.Footnote 125 However, in spite of the ambiguity noted above, which pervades the official positions of intervening governments on the side of insurgents in both contexts, the legal justification for the provision of military aid to insurgents does not appear to have gone thus far in any of them.
HUMANITARIAN AND ORGANIZATIONAL ASSISTANCE
At the above-mentioned Marrakech meeting of the Group of Friends of the Syrian People, more than 100 states openly affirmed their support for the opposition in Syria, particularly in the form of humanitarian and organizational/capacity-building assistance.Footnote 126 Some states went on to specify publicly the amount of humanitarian assistance (in addition to “non-lethal” support) being provided to the Syrian opposition.Footnote 127 This was in sharp contrast with the more limited number of states that considered arming Syrian rebels at the above-mentioned Doha meeting. This issue is likewise complex as it encompasses humanitarian assistance channelled to insurgent movements or to the civilian population as such, unilaterally or via the UN or UN agencies, other international organizations, the EU,Footnote 128 and NGOs operating in an international framework.Footnote 129
In the Case Concerning Military and Paramilitary Activities in and against Nicaragua, the ICJ dealt with the issue and made a very important distinction:
There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The characteristics of such aid were indicated in the first and second of the fundamental principles declared by the Twentieth International Conference of the Red Cross. … In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes allowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being”; it must also, and above all be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.Footnote 130
Article 18, paragraph 2, of Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflict specifically provides that,
[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.Footnote 131
Ambiguous practice on the part of states and the absence of clear legal justifications create uncertainty in this respect too. In the case of Ukraine, in which Russia justified the humanitarian assistance to the separatist regions in the east in the light of the alleged indiscriminate attacks by the Ukrainian military,Footnote 132 such aid was however questioned insofar as it was provided without the express consent of the Ukrainian authorities and, moreover, without any coordination with the appropriate agencies.Footnote 133 Furthermore, the so-called Minsk II Agreement on Ukraine provided for “safe access, delivery, storage, and distribution of humanitarian assistance to those in need, on the basis of an international mechanism.”Footnote 134 In other instances, humanitarian aid was also openly channelled directly to insurgent movements (in a way that was comparable with the legal treatment of national liberation movements). Thus, in Syria, the direct provision of humanitarian aid and even of non-lethal military aid to some of the insurgent factions went apparently unchallenged.Footnote 135 Furthermore, there seems to be a trend towards an exception (to the principle requiring the territorial state’s consent) whenever the latter is being withheld for arbitrary reasons.Footnote 136
On the other hand, the requirement of impartiality/neutrality has been holding; while the Group of Friends of the Syrian People, at the above-mentioned Marrakech meeting, agreed to coordinate and work with the Assistance Coordination Unit (ACU) of the National Coalition of Syrian Revolution and Opposition Forces, they nevertheless “noted the commitment by the ACU to honour the fundamental principles of providing humanitarian assistance, particularly without discrimination.”Footnote 137 As to organizational assistance, such as capacity-building, a non-forcible measure of this type may amount to unlawful intervention (for example, when violating the target state’s law), even though there is no clear consensus in this area either.Footnote 138
POLITICAL SUPPORT/RECOGNITION
An additional issue in this context concerns public and official statements calling for regime change, which could possibly accompany other forms of support to insurgents. The Syrian crisis is also highly emblematic in this regard. Since its initial phase, public positions were taken in favour of the departure of Syrian President Bashar Al-Assad. The US Obama administration overtly adopted this position as early as August 2011,Footnote 139 and, at the beginning of 2012, it recognized the Syrian National Council as a “legitimate entity.”Footnote 140 France likewise affirmed the Syrian leaders’ loss of legitimacyFootnote 141 and, in November 2012, announced its recognition of the Syrian National Coalition “as the sole legitimate representative of the Syrian people and as the future government of a democratic Syria, allowing it to bring an end to Bashar al-Assad’s regime.”Footnote 142 On 12 December 2012, at the above-mentioned fourth ministerial meeting held in Marrakech, more than 100 states reiterated that Bashar Al-Assad had lost legitimacy to govern Syria and “acknowledged” the National Coalition for Syrian Revolutionary and Opposition Forces as the “legitimate representative of the Syrian people,”Footnote 143 although some states used different nuances.Footnote 144 The conclusions of the Marrakech summit were also welcomed by the EU:
The European Council tasks the Foreign Affairs Council to work on all options to support and help the opposition and to enable greater support for the protection of civilians. The European Council repeats its view that political transition is necessary in Syria towards a future without President Assad and his illegitimate regime. We support a future that is democratic and inclusive with full support for Human Rights and the rights of minorities.Footnote 145
Calls for regime change in Syria were also openly reiterated by several Western states (and Saudi Arabia) at subsequent stages of the Syrian crisis, at least up to early September 2015, just prior to Russia’s direct intervention.Footnote 146 It was also advocated from the outset of the international intervention in Libya.Footnote 147
With a couple of exceptions, the above-mentioned recognitions stopped short of recognizing the Syrian National Council or Coalition as the legitimate government of Syria.Footnote 148 Even though such peculiar forms of recognition of the opposition cannot qualify as this group’s recognition as the legitimate government — thus, formally/legally, and not just politically, challenging the legitimacy of the constituted governmentFootnote 149 — calls for regime change such as these, as well as the related political support that the various above-mentioned forms of recognition essentially represent, raise a number of important issues in the context of this study. Of course, regime change may well be the hidden goal behind support for insurgents. Besides, formal recognition being granted to an insurgent entity that does not yet fulfil the requirements of a legitimate government typically qualifies as a premature recognition infringing the principle of non-intervention.Footnote 150 But what about external public calls for regime change as such? Do they also amount to illicit interference in another state’s domestic affairs? As noted above, according to the ICJ, the element of coercion defines and, indeed, forms the very essence of prohibited intervention.Footnote 151 UNGA Resolution 2625 (1970), quoted above, which the ICJ saw as reflecting customary law, does not explicitly refer to the specific situation of third states publicly calling for regime change. However, it does provide that “[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State, … or interfere in civil strife in another State.” Such a general provision may of course be read in the sense that third states should abstain from publicly encouraging regime change in another state, especially in the context of civil strife that would make the regime change violent, all the more where foreign interventions involving the use of force are already underway.
Would the fact that the legitimate government was responsible for large-scale human rights violations and international crimes legitimize external calls for regime change? This was in fact the basis for the repeated calls for regime change in Syria that several Western states expressed, even in debates within the UNSC. However, if humanitarian and organizational assistance provided to Syrian rebels, for example, drew only limited criticism, the idea of pursuing regime change was constantly opposed by a number of key states, as were the forms of limited recognition granted to the insurgents, in line with the traditional reading of the principle of non-intervention in states’ internal affairs in this regard.Footnote 152 It is worth noting that this position was taken not only by states with direct interests at stake,Footnote 153 or those traditionally inclined to defend the “domestic jurisdiction” of states,Footnote 154 but also by other states that argued it on a very different basis.Footnote 155
That said, the rejection of the idea of regime change is not as rigid as it might seem; in UNSC Resolution 2042 (2012), which was unanimously adopted, the UNSC called for immediate implementation of the UN special envoy’s six-point proposal “aimed at … facilitating a Syrian-led political transition leading to a democratic, plural political system.”Footnote 156 The call for a “transitional governing body” and for preparing “free and fair multiparty elections,” meeting the legitimate aspirations of the Syrian people and fostered by “joint and sustained pressure on the parties in the Syrian Arab Republic” by Action Group for Syria members,Footnote 157 was stated, among other contexts, in the latter’s final communiqué of 30 June 2012.Footnote 158 The Sochi Final Statement (circulated to the UNSC on 14 February 2018) called for the establishment of a Constitutional Committee for Syria in Geneva, under UN auspices and in accordance with UNSC Resolution 2254 (2015). At the same time, commitment to the sovereignty, independence, unity, and territorial integrity of Syria was repeatedly spelled out.Footnote 159 In past cases, the international community had in fact taken sides with respect to regime transformation processes (for example, the UN response to the military coup in Haiti in 1991 or the international approval of forcible measures by ECOWAS against the coup in Sierra Leone in 1992,Footnote 160 not to mention the African Union’s practice of reacting, in particular by adopting sanctions, whenever an unconstitutional change of government takes place in a Member State). Therefore, what appears to be rejected by a significant number of states is any regime change unilaterally imposed or fomented, especially when it involves force or any other form of coercion, outside a collective framework.Footnote 161 An additional major issue must be raised in this regard, apart from that of legality: what weight do outside public calls for regime change bear with regard to developments in the field? It has been contended, as we will see later on, that open support for the uprising in Syria might have encouraged the rebels to take up arms.Footnote 162
A Flawed Legal Framework
Notwithstanding general, non-controversial indications of the — albeit not unlimited — right to aid a legitimate government, on the one hand, and a prohibition on providing military support to insurgent movements, on the other hand, the current legal framework, in addition to the various critical aspects highlighted in the preceding sections, shows two major flaws that are partly intertwined: too many key features remain uncertain and too many of them — partly because of the uncertainty, partly because of their very nature — can easily be manipulated (it is too easy, for example, to invoke counter-intervention, with insufficient or no supporting evidence, as a justification for intervention in a civil war).Footnote 163 As a result, in our view, the traditional normative parameters in this area are not legally viable and are of little use. In other words, the traditional legal approach appears to be critically flawed.
Especially in the context of the Syrian crisis and with regard to military aid provided to various insurgent groups, it is worth noting that states have been reluctant to invoke a legal justification, even when they have openly provided military aid. Such behaviour, of course, is not peculiar to the area of interventions in civil wars, although it is an increasing (and worrying) pattern, particularly in the area of armed conflicts. In any event, states failing to specify the legal grounds for a given course of action run into ambiguity. At least in some cases, they intentionally do so with one end in mind — namely, not to tie their hands with legal considerations and so keep all options open. The result is that in those circumstances it is very difficult to detect opinio juris. Footnote 164 A customary norm requires both a general practice and opinio juris. Where practice departs from the legal principle to a significant extent — that is, when one of the two equally essential elements constituting a customary norm starts receding and, at the same time, opinio juris is lacking — this can be symptomatic of two alternative processes: a modification of the norm or its collapse. With specific regard to the Syrian crisis, where such a process has become more evident, the latter scenario appears to be highly plausible: collapse of the norm leads to the absence of any norm and an anarchic situation where, basically, all actors openly pursue their political/strategic goals, bypassing legal considerations, which is precisely what has been happening in Syria.
However, even assuming that the practice — in some cases — of openly aiding insurgents could be interpreted as being indicative of the emergence of a derogation from the norm prohibiting aid to insurgents (which is far from being certain given both the recurrent pattern of the lack of any legal justifications by the states concerned and the clear position of several other states in favour of non-intervention), a legal development of this kind would not necessarily be desirable in the light of the profound implications of civil wars and foreign interventions (as will be discussed in the following sections). In sum, the legal inference resulting from state practice and opinio juris in both respects (aid to governments and aid to insurgents) is that it is increasingly difficult to identify a coherent legal framework.Footnote 165 The current legal situation seems to be tending towards an implosion of the “traditional” principles, with practice and opinio juris pointing in different, and very often contradictory, directions. This, in turn, makes it more evident that the traditional approach shows a number of serious faults. In this context, lex ferenda aspects (or a progressive development perspective) become of major importance. Therefore, a new approach to the whole matter becomes necessary, and, above all, the focus should be completely different: legal rules must in fact be discussed in their context, which in our case means civil wars.
Where the legal framework shows clear signs of crisis, and events in the field appear to have developed beyond any clear legal guidance in several crucial cases, the question is not only whether the traditional legal framework still holds but also, and more importantly, whether it is in any case suitable to meet the challenges that civil wars pose and even whether it is consistent with other key features of the international legal system. Law must make sense, and international law is no exception. Furthermore, legal rules should work consistently with each other and be compatible with the basic norms enshrining the fundamental values of the legal system as a whole. Of course, in terms of international law, this condition applies to peremptory norms.Footnote 166 It is evident that the traditional normative setting (authorizing even lethal aid to legitimate governments while banning lethal and logistical aid to insurgents) responds to the basic interest of states to protect their sovereignty and preserve their territorial integrity. Is it possible to detect, in today’s international community and practice, any other strong, possibly competing interests that might point to, or, at any rate, call for, a different normative setting?
First of all, with closer in-depth analysis, as seen above, it is possible to identify limits, including in the provision of aid to governments, that correspond to other important interests (and values) at stake — for example, the prevention of war crimes and crimes against humanity or the right to internal self-determination. In addition, even taking these limits into account, the current approach, which, to a large extent, is still influenced by the traditional doctrine, is highly unsatisfactory from a systemic point of view. First, given the current trend towards aligning both governmental authorities and insurgents with regard to their obligations under IHL,Footnote 167 differential treatment with respect to external military aid (to the advantage of the legitimate government) appears inconsistent. Second, it has been demonstrated that external military aid to any of the warring parties fuels internal conflict.Footnote 168 It is likewise clear that the intensification of an internal conflict leads to widespread human rights and IHL violations, as acknowledged by the UNSC itself,Footnote 169 and that many of those violations correspond to serious breaches of peremptory norms of international law.Footnote 170 Consequently, admitting the possibility of providing unilateral military aid to any of the warring parties — in civil wars as well as in conflict-risk situations (as defined above) — is in flagrant contradiction with the objective of preventing the said serious breaches (also inherent in the endeavour of developing an international criminal justice system) and possibly also with that of fostering respect for the “responsibility to protect” principle.Footnote 171 On top of that, and from a purpose/rationale point of view, other fundamental questions arise that can have a highly significant impact on the legal discussion, particularly de lege ferenda. Let us address the first one: are civil wars useful?
The (Immense) Costs of Civil Wars
Studies on civil wars and particularly on their distinctive feature — widespread violence — point to a fundamental reality, of which the Syrian conflict represents a paradigmatic case: for a number of reasons, civil wars tend to be particularly barbaric and produce a massive amount of violence via brutalization, including, of course, indiscriminate violence: “[A] civil war is likely to open a Pandora’s box of violence.”Footnote 172 What is especially important in this latter regard is that the escalation of violence leads to a spiral that “acquires a logic of its own, … even independent of the war’s initial causes.”Footnote 173 What is more, “war is a transformative phenomenon,” “and civil war even more so.”Footnote 174 As one author explains, “[b]y their very nature, civil wars have a tendency to foster extremes. The ruthless are rewarded, while the moderates and the evolutionary reformers tend to get culled out.”Footnote 175 Furthermore, “[c]ivil wars have a sticky quality: they are notorious for being a past that won’t go away.”Footnote 176 In other words, the long-term consequences of the large-scale brutal violence that they produce and the enormous costs that this generates will not only have a huge impact on the success and the costs of post-conflict reconstructionFootnote 177 but also create conditions for potential new conflicts.Footnote 178
Data on the more recent civil wars, which have been the major focus of attention in the present article, confirm these findings. Thus, Yemen’s civil war has led to a humanitarian catastrophe, with half of Yemen’s twenty-eight million people “food insecure” and the country on the brink of famine.Footnote 179 The effects of the Syrian conflict are simply appalling, as a vast number of sources indicate.Footnote 180 Albeit with human losses and destruction on a relatively smaller scale, such patterns can also be detected in Ukraine,Footnote 181 South Sudan,Footnote 182 and Libya,Footnote 183 to mention but a few examples among the many more that could be cited. Furthermore, it must be stressed that even when the initial cause of the insurgency might appear just, there is clear evidence of widespread human rights violations and even international crimes on the part of all rebel movements.Footnote 184 A government, as in the case of Syria, may well bear a prime responsibility for the resort to violence and show a grim record of large-scale human rights abuses and international crimes. However, reprisals and brutalities, whether on political or inter-ethnic grounds, or, indeed, on both, which sooner or later will most likely be committed also on the rebels’ side, inevitably create a vicious spiral devastating the economic and social structure of the country for generations to come.Footnote 185 The readiness that many states show for getting involved in proxy wars indicates that the long-lasting destructive consequences of civil conflicts are still underestimated (or irresponsibly ignored).
Where does this take us? Simply put, the logical conclusion is that civil wars must be prevented as far as possible and contained where it is not possible to prevent them in the first place. In other words, we have to start approaching civil wars, including from a legal point of view, according to a logic of conflict minimization. This leads to the next fundamental question: which factors feed civil war and are therefore at odds with such a logic?
Causes of Civil Wars
Civil wars, of course, are a very complex and diversified matter. However, a jurist’s task is not empirically identifying the various patterns and variations that history offers in the tragic field of civil war. Historical and political studies provide the analytical context, whereas the jurist’s task is a selective one: the law is not meant to regulate all aspects of reality but, rather, to identify those crucial aspects that need to be regulated. Nevertheless, historical and political studies are, especially for international lawyers, clearly of crucial importance in supporting the jurist’s selective approach. Accordingly, it seems possible to identify three key factors, in particular, that alone or in combination play an especially important part in creating the conditions for the outbreak of internal conflict and/or fuelling it:
• brutal repression by state authorities (for example, Syria);
• foreign intervention (for example, Syria, Yemen, Ukraine);
• power struggles or exclusion from power structures along sectarian, ethnic, or political lines (for example, South Sudan, Yemen, Bosnia).Footnote 186
The way in which the legal framework impacts on each of these factors is clearly key in assessing whether it adequately responds to the fundamental goal of minimizing civil conflicts. We shall deal with the latter two factors before considering the first.
Progressive Development of International Law on Foreign Interventions
Several studies point out that third party interventions in civil wars tend to aggravate conflict, prolonging its durationFootnote 187 and even hindering post-war reconstruction.Footnote 188 There are even studies that depict foreign interference as contributing to igniting conflict in situations at risk, as defined at the beginning of this article.Footnote 189 Yemen is one telling example. After the UNSC had already (long before) clearly identified Yemen as a situation at risk,Footnote 190 Saudi Arabia and Iran had “proven eager to arm groups that they believed they could control, despite the legacy this destructive rivalry had already wrought in Syria and Iraq. And, if the story is repeated in Yemen, what began as a manageable power struggle between rival factions could descend into a brutal and increasingly sectarian civil war that would tear the country apart; … foreign funders are inflaming previously unimportant divisions. This would not be the inevitable outcome of long-standing rivalries but, rather, a tragic self-fulfilling prophecy.”Footnote 191
A comprehensive arms embargo (vis-à-vis all parties) should thus have already been decided upon during the transition process, instead of the partial arms embargo (only targeting the Houthi insurgents) imposed by UNSC Resolution 2216 (2015) when civil war had again broken out.Footnote 192
Consequently, the possibility of intervening on either side of the conflict — be it that of the government (even pursuant to counter-intervention) or of the insurgents — will inevitably lead to fuelling the conflict and increasing the spiral of violence, with all of the above-mentioned distortive and dramatic consequences. This idea has also frequently been put forward in international institutional fora.Footnote 193 Even the mere prospect of external help — on either side — may encourage the conflicting parties to harden their positions. Thus, a government’s expectation of obtaining external help would probably encourage it to become intransigent on demands for political reforms and stifle any opposition movement, let alone an insurgency. On the other hand, the prospect of being supported from the outside would just as likely encourage opposition elements to resort to arms (even if not openly fomented to do so).Footnote 194 This grave allegation was made by authoritative sources with regard to the Syrian crisis; the prospect of foreign intervention may have driven the developing insurgent movement to stiffen its positions vis-à-vis the government on the basis of the growing conviction that external help would materialize and enable it to overthrow the government by force.Footnote 195 Similar questions could be raised with regard to the Libyan crisis.Footnote 196
Account must also be taken of the risk that the prospect of violent overthrow of a government or of a summary elimination of its leaders by the insurgents (as occurred in the case of Muammar Al Gaddafi) could drive the governmental side to step up repression of any opposition drastically, thus further precipitating the escalation of the conflict.Footnote 197 Therefore, hasty external calls for regime change, especially if preceded by violent regime changes in similar circumstances, could backfire and drive another government to hold on to power at all costs. On top of that, calling for regime change and indirectly or directly encouraging an insurgent movement to take up arms without consistently following through could be seen as morally or, in any event, politically unacceptable.Footnote 198
Foreign intervention is most likely to aggravate the conflict where the third factor (power struggle) is also at work.
These observations lead to a framework of both policy and legal directions. Indeed, legal norms alone cannot satisfactorily address such complex realities or foster the achievement of the fundamental goal of conflict minimization. A combination of purposeful legal norms and an array of policy options appear to be called for. And, in fact, on closer inspection, practice already offers several pointers in this direction. Legally speaking, the logical inference from the preceding analysis is a general non-intervention principle; in both situations identified above (non-international armed conflicts as well as situations at risk of escalating into civil wars), third states should be under a strict obligation to stop any supply of military aid to the government and to refrain from providing any armed or logistical support to any opposition movement. As was rightly stressed by the Institut de droit international, which in 1975 sketched non-intervention as a general rule (albeit limited to actual internal armed conflicts), any intervention on one side very often leads to intervention on the other side.Footnote 199
The proposed general principle of non-intervention goes beyond the scope of the traditional rules on neutrality, which only apply from the point of recognition of belligerency and are limited to the recognizing states. Furthermore, it is generally acknowledged that the law of neutrality has applied in very few cases, cannot apply to internal conflicts unless there has been recognition of belligerency, and is, in any case, now deemed anachronistic.Footnote 200 Given the current state of the law, this position can only be qualified as progressive development.Footnote 201 However, practice already offers a number of elements supporting both the idea of conflict minimization and a position in favour of non-intervention as a principle to be followed in general. In numerous cases, the UNSC and other international bodies have called upon all parties to resolve differences through dialogue and rejected violence as a means to achieve political goals.Footnote 202 The policy focus on the need to reduce the level of violence, contain the conflict, and de-escalate likewise loomed large in most of the key cases.Footnote 203 Furthermore, the prioritization of conflict minimization is also implied in the endeavour to develop an international criminal justice system, one of whose aims is to contribute to preventing international crimes, including the typical IHL violations that are committed in the context of civil wars.
It must be added that the idea of actively sponsoring regime change (be it by supporting an insurgent movement or through direct intervention), aside from Chapter VII action by the UNSC, has a very weak basis, both as a matter of principle and in practice. First of all, many states openly oppose it, which in terms of international law should never be underrated.Footnote 204 Second, forcing a regime change from outside (even on the basis of a democratization endeavour) is open to abuse and manipulation and appears to be a very bad policy option.Footnote 205 In fact, experience (aside possibly from states having a previous democratic history) shows that democratic change and the dawning of a civil society take time. Any attempt to promote such an evolution from outside calls for a very cautious approach, carefully choosing the method according to the circumstances of each case and in conformity with such fundamental principles of international law as independence and non-interference. This, in any event, is best done via collective fora and tools.Footnote 206
Of course, the UNSC could well decide (under Chapter VII) to intervene in a civil war, as in fact occurred in Libya. However, mutatis mutandis (a UNSC-mandated intervention could and would obviously derogate from the principle of non-interference), similar considerations would apply in this case too. Apart from the specific mandate laid down in the UNSC decision (such as protection of the civilian population in the case of Libya), the participating states’ underlying objective should be at most to favour the dawning of a democratic process by shielding groups encouraging democracy rather than aiming at regime change outright. The case of Libya is indeed a telling one. The use of force was authorized by the UNSC to protect the civilian population, including in Benghazi.Footnote 207 The latter was home to the most genuine democratic elements that had started the movement against Gaddafi’s rule. Strict compliance with UNSC Resolution 1973 (2011), which was openly advocated by several major states and organizations,Footnote 208 would have meant limiting military action to the pursuit of this objective, without directly supporting a broader armed insurgency aimed at overthrowing Gaddafi’s regime — in other words, implementing a no-fly zone and stopping any military attempt to crush civilian opposition, particularly in the Benghazi area.Footnote 209 A major side effect of this action would have been to protect the embryo of a democratic and civil society that had begun to develop precisely in this latter area.Footnote 210 What happened instead is all too well known; in short, the external military intervention rapidly escalated into all-out aerial and covert military and logistical support for the armed insurgency,Footnote 211 eventually contributing to the overthrow of the regime and the capture (and summary execution) of Gaddafi. As regularly happens in civil wars, the radical elements of the insurgency took over, the initial moderate and democratic opponents were marginalized (and in some cases killed),Footnote 212 and Libya eventually plunged into chaos. Thus, from this point of view, Libya can be seen as a huge missed opportunity and all the more so considering that the military intervention had been authorized exceptionally by the UNSC, even relying on the “responsibility to protect” principle.Footnote 213
The Issue of Brutal Repression as a Factor Contributing to the Outbreak of Civil War
Last but not least, we still have to deal with another factor contributing to the outbreak or worsening of civil conflict — that is, brutal repression by governmental authorities, especially as a reaction to domestic demands for political transition or democratic change. An arms embargo may succeed in keeping an internal conflict at a low level, but it may fail to prevent brutal violence, particularly on the part of a government that may be determined to repress any form of opposition, even ahead of any possible armed upheaval. Syria is often referred to in this respect; the appallingly brutal reaction by the Syrian authorities to the initial, mostly peaceful demonstrations in the wake of the so-called Arab Spring is considered to have contributed to the country spiralling into an all-out civil war.Footnote 214 The idea that brutal repression by state authorities can pave the way to internal conflict is by no means new. The French novelist Stendhal, who had lived through the Napoleonic period, wrote that “a revolution turns bloody exactly in proportion to the horror of the abuses that it aims to extirpate.”Footnote 215
More recently, the preamble to the Universal Declaration of Human Rights states that it is essential that human rights be protected by the rule of law, “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.”Footnote 216 Irrespective of the issue as to whether international law grants the right to revolt, or the right of victims of human rights abuses to protect themselves,Footnote 217 and also apart from individuals’ commitments under IHL and their accountability before the international criminal justice system, the evident risk involved in the use of brutal, disproportionate force by state authorities to quash democratic demands, or even political change of a different kind, is eventual incitement of at least some of the actors on the other side of the barricade to take up arms. Of course, this by no means implies that all those opposing a government that refuses to engage in a transition process or political dialogue with the opposition should be considered potential insurgents. It is indeed striking that many opposition elements in Syria have continued to oppose the Syrian government without resorting to force, in spite of the appalling violence and suffering the Syrian authorities have inflicted on the civilian population.Footnote 218 The point is that, in the face of so much brutal force on the part of the authorities, one can hardly expect everyone on the opposing side to endure such severe punishment indefinitely, passively, and without resorting to the use of force. To put it another way, when the authorities resort to prolonged brutal and disproportionate use of force, there is a very real risk that some individuals on the opponents’ side may eventually take up arms.Footnote 219
The use of brutal/disproportionate force by the authorities, therefore, is a factor contributing to the deterioration of unrest into armed confrontation, with the additional risk of foreign intervention combining to create an irresistible drive towards conflict, as was the case in Syria.Footnote 220 Consequently, the principle of conflict minimization must also reckon with this factor. This, however, raises a tremendous challenge, for in addition to the general difficulty of enforcing the ban on military aid to any of the parties, imposing self-restraint on a government regarding its own use of force would prove even harder. Logically, the challenge would (at least partly) be met if the UNSC succeeded in approving a course of action under Chapter VII of the UN Charter, as occurred with regard to Libya. The problem, on the contrary, dramatically arises in all of the cases, like Syria, where the UNSC has never reached an agreement on measures specifically targeting the government with regard to its brutal/disproportionate use of force against its civilian population.
Of course, the Syrian crisis has subsequently been further complicated by a number of factors that were not present at the outset: the use of chemical weapons, the emergence of ISIS/Daesh, the direct intervention by Russia and Iran, the deployment of US troops in the northeast of Syria, and the deployment of Turkish troops in the northwest of Syria, to mention only the most evident factors. However, the principal question concerning the first phase of the Syrian crisis remains: how to deal with a government that, by resorting to an excessive amount of force, risks plunging the country into all-out civil war, while there is no agreement within the UNSC? The question is all the more important if one considers that none of the above-mentioned complicating factors would have emerged, and the Syrian crisis would not have become so dangerous for the region and even for international peace and security, had the crisis been kept under control by containing the Syrian government while, at the same time, preventing the flow of arms and fighters from the outside, both factors being clearly intertwined in this case. The answer to such a difficult and critical issue is complex, multi-level, and multifaceted.
It is not our intention to depreciate the current efforts to strengthen the UNSC’s capability to take early action with a view to preventing genocide, crimes against humanity, or war crimes — namely, the code of conduct regarding the UNSC’s action in these cases, which was addressed to the UN secretary-general on 14 December 2015 and is supported, at the time of writing, by over 110 UN member states (but signed by only two of the five UNSC permanent members).Footnote 221 Nonetheless, however critical and dramatic it may be (as in the case of Syria), the question of how to oppose a brutal government should the UNSC be unable to take action (due to the opposition of one or more of its permanent members or possibly because of a lack of political will to do so) should not override a series of other, fundamental questions: was there a serious attempt to contain the conflict in the first place, in the sense discussed above, without hasty calls for regime change; had any permanent members’ actions in previous, similar cases been conducted in strict compliance with international law, rather than pursuant to a de facto regime change agenda, so as not to provide others with excuses to then refuse cooperation in the UNSC?Footnote 222 This does not imply, nevertheless, that egregious human rights violations, especially by a government, should be ignored. In a sense, unilaterally pushing for regime change or advocating no collective interference at all are both equally wrong.Footnote 223 What we are suggesting is to adopt a cautious and holistic approach to internal conflicts (including the issue of foreign intervention) in the broader context of the collective security system. This leads us to our final remarks and proposals.
The Way Ahead (beyond Past and Current Tragic Failures)
Interestingly, the general prohibition of the use or threat of force in international relations (Article 2, paragraph 4, of the UN Charter) is now reflected, to some extent, in a constant decrease of inter-state conflicts. Of course, several factors may account for this, but it can reasonably be argued that the above legal prohibition has at least partially contributed to this trend by progressively making the resort to force in international relations less acceptable in the realm of international politics. In sharp contrast, the level of intra-state violence has not decreased and has even reached unprecedented peaks, as in the case of Syria.Footnote 224 This conclusion amounts to clear evidence of a serious shortcoming in the legal framework concerning the use of force within states and, in particular, the issue of foreign interaction with internal armed conflicts. What emerges is a striking discrepancy between the rejection of violence at the inter-state level and the wide leeway that is still afforded to the use of violence at the intra-state level and even to external contribution to the use of force at the domestic level (read “foreign intervention”), particularly on the government side. The “massive failure” of the international community in Syria, to quote the terms of former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein,Footnote 225 seems also to derive from this shortcoming in the legal framework.
It is a fact that state and international practice and opinio juris strongly back the right of a government to seek support from other states in fighting terrorism. This may even stretch as far as granting states the possibility of extending anti-terrorist operations beyond their territory into a third state, should the latter be unwilling or unable to prevent terrorist attacks from within its territory. The fight against ISIS/Daesh seems to be a case in point. As already noted above, there is a tendency for governments to label any insurgent movement as terrorism, with a view to discrediting it politically.Footnote 226 The problem of states manipulating legal categories in order to justify their conduct is (unfortunately) recurrent in the field of international law and, for that matter, is also affecting such well-established legal concepts as self-defence. It is invariably up to the international community, particularly in the context of international organizations, to challenge any such cases of state manipulation of international law. Justifications based on the need to counter terrorist threats call for particular caution, taking account of the absence of a definition of terrorism under international law. In the face of grave terrorist threats, the UNSC could thus grant an authoritative imprimatur to states’ anti-terrorist actions, as in the case of Resolution 2249 (2015) concerning the fight against ISIS/Daesh.Footnote 227 This should apply especially to foreign direct intervention (upon request) aimed at assisting a state in fighting a terrorist threat.
Aside from clearly established and predominantly terrorist threats/campaigns, any other situation (including insurgencies interspersed with sporadic/non-systematic terrorist acts) should be dealt with under the three guiding principles set out below, stemming from the key principle of conflict minimization and the important practical elements and trends (especially within international organizations) illustrated above. Taking account of the progressive development approach that we have favoured, the core elements of the following principles could be promoted by means of a resolution of the UNGA, which could lay the basis not only for the development of customary standards but also for the possible adoption of a code of conduct regarding the UNSC’s approach to the situations at issue:
• Principle 1: a formal prohibition of intervention on either side once the threshold of low level unrest has been passed, which means that the prohibition of intervention, also in favour of the legitimate government, would apply not only to any situation qualifying as a civil war, whatever the level of intensity,Footnote 228 but also to those situations showing a clear and serious risk of escalating into civil war;Footnote 229 the prohibition would only exclude strictly speaking humanitarian assistance on the basis of the criteria that have been discussed earlier;Footnote 230
• Principle 2: a formal obligation of the international community to cooperate with a view to containing and de-escalating the conflict and building up mediation efforts aimed at fostering political dialogue between the conflicting parties;Footnote 231
• Principle 3: international/collective intervention options (as a last resort).
It must be stressed that these three guiding principles should work in combination. In particular, the first legal principle is the cornerstone of the entire construct: if the first principle were not strictly complied with, the second and third principles might well be unworkable (as the case of Syria tragically shows).Footnote 232 Of course, the principle might well be implemented legally through an arms and military equipment embargo imposed by the UNSC under Chapter VII of the UN Charter, as has already occurred in a number of cases (for example, with regard to Libya). However, this should not detract from the importance of affirming a general obligation not to intervene in the conflict in the situations referred to above, ahead of any possible decision by the UNSC, not least because a UNSC-imposed arms embargo may be late in obtaining the necessary political backing (as in the case of South Sudan, in spite of the officially stated need for an arms embargo)Footnote 233 or may be partial and belated (as in the case of Yemen).Footnote 234 By analogy, the right to collective self-defence (Article 51 of the UN Charter) also exists irrespective of the possibility that the UNSC might decide to take action or back collective defensive action within the ambit of its mandate and powers under Chapter VII of the UN Charter (as happened, for example, following the Iraqi invasion of Kuwait in 1990).Footnote 235
Any aid to one of two or more would-be or competing governmental authorities, based, for example, on counter-intervention, should consequently have explicit and unequivocal institutional/collective backing. It is worth stressing that an important corollary would be the prohibition also of counter-intervention, unless the latter responded to a qualitatively different threat to the legitimate government — that is, externally controlled or dispatched armed groups performing military actions amounting to armed attack on behalf of another state, in which case counter-intervention itself (again, if there is still a legitimate government) would take a different name — that is, collective self-defence.Footnote 236 This would require a demonstration, in particular, that the armed groups in question were “acting on the instructions of, or under the direction or control of” that other state.Footnote 237 In addition to the rationale of conflict minimization (bearing in mind the vicious circle counter-intervention usually generates),Footnote 238 not to speak of the difficult legal problems that counter-intervention raises anyway,Footnote 239 a further reason to exclude counter-intervention would be that allowing for such an additional exception, in an area of international law where manipulation by states is frequent and ensuring compliance with the rules proves particularly difficult, would offer states a relatively easy way to justify any intervention.Footnote 240
As observed above, the exception (with regard to aid to the government) based on the need to fight terrorism is already prone to the risk of manipulation, so it is very important to keep this exception to the minimum, reflecting its very clear support in state practice and opinio juris, though with the safeguards that were mentioned earlier, without recognizing other controversial and manipulable exceptions that would inevitably jeopardize the basic non-intervention principle. And if there was a serious allegation of an externally supported insurgency against a given government or the need to support a democratically elected government, the response should again be at an international/collective level, pursuant to the second and third principles above. In other words, it should be left to the UN or regional security systems, such as the African Union, to decide to counter-intervene on behalf of a legitimate government, if and when necessary to safeguard international or regional peace and security. Otherwise, the basic prohibition of any unilateral counter-intervention (that is, not explicitly authorized at the collective level) should invariably apply. Yemen offers an instructive example since, before unilateral intervention on behalf of the ousted government of President Hadi, the UNSC had urged “the Yemeni Government to pass legislation on transitional justice to support reconciliation without further delay” and had actually envisaged collective action (under Article 41 of the UN Charter) had actions aimed at undermining the government of National Unity and the political transition continued.Footnote 241
Consequently, aid to the government (whether in reaction to an illegal intervention not amounting to an armed attack or, for example, to counter violent secessionist attempts that would be deemed unacceptable by the international community) would become permissible only with some sort of international institutional backing (and, presumably, upon invitation by the legitimate government), be it the UNSC or a regional security organization.Footnote 242 It must be stressed, in this regard, that the most recent practice does indeed show that in several cases states intervening on behalf of a legitimate government (especially where the latter is in a precarious situation) have sought the support of international security organizations, beginning with the UNSC.Footnote 243
With respect to the second principle, a purpose-oriented obligation to cooperate (short of including an obligation to achieve a result, which would obviously be impossible in this case) is definitely conceivable under international law. For example, Article 41, paragraph 1, of ARSIWA provides that “[s]tates shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40” (that is, a serious breach of obligations under peremptory norms of general international law, as defined by paragraph 2 of the latter provision). In other words, the purpose of the proposed obligation would be to trigger early and coordinated international pressure in favour of political dialogue, building up mediation efforts and pursuing a political solution to the conflict, particularly through international organizations.Footnote 244 Once again, the principle of non-intervention in favour of any of the parties would be conducive to facilitating implementation of this principle. When he left his post as joint special envoy for Syria, Kofi Annan said that “(o)nly a united international community can compel both sides to engage in a peaceful political transition. But a political process is difficult, if not impossible, while all sides — within and without Syria — see opportunity to advance their narrow agendas by military means.”Footnote 245
The third principle refers to the issue of possible international/collective intervention options.Footnote 246 Whether an intervention would be required, what sort of intervention (international observers, use of force to protect the civilian population, classical/robust/aggressive peacekeeping, peace enforcement, and so on), with what aims, and under what conditions would of course depend on careful assessment of the circumstances of each particular case and the political context, particularly within the UNSC. However, in policy terms, any international intervention option should be tested against two crucial priorities: first, the protection of the civilian population (which was in fact the explicit core objective of the military intervention in Libya) and, second, a well-founded expectation that the planned intervention would prevent further deterioration of the situation, which also implies that it should occur as early as apparently necessary to avoid an escalation of the conflict and the likely ensuing massive suffering for the civilian population. Furthermore, any planned intervention should also aim at contributing to conditions that would boost agreement on transition, reform, better power sharing, or whatever would be needed in the specific circumstances of each case, and, in particular, any decision to resort to armed force should be based on strong and particularly well-founded considerations that failing to take armed action would most likely result in the conflict spreading/worsening and/or in a significant increase in suffering for the civilian population.Footnote 247
In other words, the underlying logic of this last principle is, in short, to freeze the conflict, deter the parties from resorting to violence and favour a negotiated transition process (which, incidentally, is best suited to producing lasting results in terms of developing a democratic and human rights-based state framework),Footnote 248 while, at the same time, taking the necessary measures to deter/counter a disproportionate use of force against the civilian population — in particular, the commission of large-scale international crimes or gross human rights violations. The importance of this point is also linked, as previously observed, to the fact that the use of such an amount of force against the civilian population is one of the key factors contributing to the escalation of an internal conflict.Footnote 249
Since prevention, deterrence, or early reaction to large-scale international crimes or massive human rights violations is one important component of the principle of conflict minimization, we are apparently left with the highly critical and much debated issue of what to do should the UNSC be unable or unwilling to take action.Footnote 250 Even though we cannot cover the issue in depth here, some key remarks are nevertheless necessary. The issue concerns primarily the (last) resort to forcible measures, given that the adoption of restrictive measures of another kind by organizations other than the UN does not raise major issues (the EU, for example, has adopted non-controversial restrictive measures targeting the Syrian governmental military structure as well as that of Myanmar and Venezuela), although the combined political and economic pressure of which the UNSC is capable has no equal in terms of authority, legitimacy, and efficacy.
In regard to the use of force in those instances where the UNSC is unwilling or unable to decide, possibly because of one or more vetoes, we do not argue in favour of an unconditional legal right of humanitarian intervention for individual states or “coalitions of the willing,” which is too controversial and, as such, unsupported by the necessary critical mass of practice and opinio juris. Nor do we intend to become entangled in the “illegal but necessary/legitimate” argument; any unilateral course of action carries with it an inevitable potential for incoherency and double standards, let alone the risk of encouraging unilateral actions by others elsewhere. Unilateral forcible action for humanitarian purposes does not comply with the widely recognized legal framework based on the UN collective security system, it is very hard to justify (indeed, states have often refrained from providing any legal justification in such cases)Footnote 251 and, therefore, pertains to the realm of power politics.Footnote 252
From a legal perspective, two main orientations emerge from the current debate: first, the possibility for the UNGA, taking into account its larger representativeness, to step in and to recommend to member states the adoption of forcible measures, based on the well-known precedent of the “uniting for peace” resolution and/or, second, the possibility for action to be taken by a regional organization that is competent to act in the relevant region.Footnote 253 With respect to the first option, even though the UNGA openly voiced its criticism vis-à-vis the UNSC for its inaction with regard to the Syrian crisis,Footnote 254 going as far as to recommend military action would have been a wholly different story. This is because it would have most likely reproduced — and probably magnified and aggravated — the rifts that blocked the UNSC from acting in the first place.Footnote 255 As one scholar put it, such a course of action might have triggered a constitutional crisis within the UN.Footnote 256 Furthermore, there would also have been a competence issue.Footnote 257
The second option appears to be a more feasible one, given some interesting precedents, especially in Africa, where the UNSC subsequently endorsed the regional organization’s action aimed at stopping mass atrocities.Footnote 258 Problems, however, arise in this area as well. In the first place, Article 53 of the UN Charter provides that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council,” so the UNSC should approve, at least at some later stage, the initiative taken by a regional organization on condition that the latter produces positive results from a humanitarian perspective (which implies the need that this doctrine be further and properly framed). Besides, a regional organization with enforcement tools might not exist for the relevant region (there is no comparison, for example, between the collective security architecture in Africa and the lack of anything of the sort in the Middle East) or it might likewise be unable or unwilling to act.
Consequently, however appealing these options might be, the fact is that the first one does not provide a reliable and safe alternative and the second one does not in any case replace the mechanism centred upon the UNSC. Therefore, they should not divert our attention from the fundamental question, which should rather be how to foster conditions enhancing the UNSC’s capability to effectively react to a brutal government that risks plunging its country into civil war with dire humanitarian consequences and possibly a spillover effect threatening regional peace and security, which completely falls under the UNSC’s mandate in light of its post-Cold War practice. A brutal reaction by a government confronted with a popular uprising must thus be deterred or countered in a timely manner, and the UNSC is the key competent body in this regard. This could be done either by taking direct action (the use of force being, once again, only a measure of last resort depending on the circumstances) or possibly by approving ex post any urgent forcible humanitarian measure that might have been taken by the relevant regional security organization. We concede that a certain degree of selectivity, with regard to both if and how to take action, is inherent in the UNSC’s decision-making.Footnote 259 Furthermore, as we have already mentioned above, there is undeniably a whole range of difficult choices to make when tackling civil wars or internal conflict-risk situations. It nevertheless appears that when it comes specifically to mass atrocities and possibly gross human rights violations committed, inter alia, by a brutal regime, selectivity is no longer an acceptable option (as the wide support for the code of conduct regarding the UNSC’s action against genocide, crimes against humanity, and war crimes seems to suggest).Footnote 260
Fostering the conditions enabling the UNSC to take action (whatever that means in the concrete circumstances of each case) calls for a strong commitment in four areas. First, there must be cooperation and mutual trust among the UNSC’s permanent members. The UNSC is made up of political actors, so these two ingredients are critical for its effectiveness, and with a view to confining the exercise of the veto power to exceptional cases. Those two ingredients are in turn highly dependent on the permanent members showing self-restraint and taking international law very seriously; Iraq in 2003, Libya in 2011, Eastern Ukraine as of 2014, Syria, and the South China Sea dispute in the last decade are all major instances in which the five permanent members did not live up — to put it mildly — to the highest responsibilities and powers that were entrusted to them by the drafters of the UN Charter.Footnote 261 Unilateral, highly controversial (or plainly illegal) action by a permanent member produces shocks that sooner or later will — no doubt — have grave repercussions elsewhere: “[T]out se tient” (“all is connected”).Footnote 262 Second, codes of conduct must be adopted. The above-mentioned code of conduct regarding the UNSC’s action against genocide, crimes against humanity, and war crimes is a starting point, but one could well imagine a code of conduct also on handling civil wars and internal conflict-risk situations, stemming from the resolution of the UNGA proposed above. Third, the UNSC’s working methods must continue to be improved, in particular, by broadening the UNSC’s consultative processes and enhancing its cooperation with regional organizations,Footnote 263 ahead of any possible reform of the UNSC’s composition.Footnote 264 Fourth, there must be clear and consistent support, along these lines, from international civil society (including scholars).
In conclusion, there is a pressing need for a legal and policy approach to civil wars and conflict-risk situations that follows a broad conflict-prevention/minimization approach and that goes well beyond the “traditional,” but, in reality, obsolete and inadequate, pattern of unilateral aid to governments or insurgents.
