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Published by The Lawfare Institute
On the Sunday talk shows, various members of Congress exhorted the United States to increase its assistance to the Syrian rebels, whether by providing them with additional (lethal) equipment, or by establishing a no-fly zone, or by entering Syria to secure its chemical weapons caches. Last night the Post reported that the Executive Branch is seriously weighing whether to arm the rebels. I wrote here about some of the international legal hurdles that the U.S. would confront in evaluating whether to use force directly in Syria. (A no-fly zone, which some have advocated, would fall into the “use of force” category.) But even the provision of lethal equipment to the Syrian rebels has implications in international law. In Nicaragua v. United States, the International Court of Justice evaluated alleged U.S. assistance to the contra rebels, who were operating in and against Nicaragua. The Court concluded that the U.S. provision of arms and training to rebels “can certainly be said to involve the threat or use of force against Nicaragua.” This arming and training also violated the international legal principle of non-intervention. At the same time, the Court concluded that the provision of arms and financial and logistical support did not constitute an “armed attack.” That is, the Court drew a distinction between acts that constitute a use of force and those uses of force that are serious enough to count as “armed attacks.” Note what this means: in the ICJ's view, providing arms to rebels violates the U.N. Charter, but it is not a serious enough violation to trigger the right of self-defense by the state that is on the receiving end of the rebels’ activity. There’s another point worth noting, too: The United States generally rejects the idea that there is a distinction between a use of force and an armed attack. (See then-State Department Legal Adviser Will Taft’s article here.) Back in March, the New York Times reported that Saudi Arabia, Turkey, and Qatar already have sent arms to the rebels. The UK and France have made noises that they are contemplating doing so too. Now the option is clearly on the table in the United States. But virtually no one is talking about international legal limitations. (The only two exceptions I’ve found are a helpful post by Dapo Akande at EJIL: Talk! and a comment by Russian Foreign Minister Sergei Lavrov.) Even the UK’s Congressional Research Service equivalent, which recently issued a report on the legality of arming the Syrian rebels, didn’t address the idea that the U.N. Charter serves as a limitation on a UK decision to do so. The lack of public discussion about the relevance of article 2(4) to the provision of arms suggests that one (or more) of four things is going on. 1. Many people---including journalists---likely aren’t aware of the potential relevance of article 2(4). This could also be true for some Members of Congress, but surely isn’t true for the Executive Branch, which (based on my past experience) spends a lot of time thinking about these issues. 2. It may be that people are aware of article 2(4)’s relevance but don’t view article 2(4) as a hard and fast limitation on the provision of arms. (I'm not aware that the United States ever has said anything publicly about whether it views the provision of weapons as implicating 2(4).) This group might have in mind various historical (post-1945) examples in which states have armed rebels in civil wars, notwithstanding article 2(4), and have not met with significant international condemnation. Others may reject the idea that international law on the use of force ever should limit U.S. actions that advance its national interests, especially for activities that don’t conjure up the same mental image that the words “armed attack” do. 3. Some may recognize 2(4)’s potential relevance but feel comfortable violating it in this context. Some human rights groups, for example, simply may prioritize the humanitarian angle---stopping the violence---over compliance with international law. This includes groups that typically urge the United States to comply with international law. Yet others may recognize the relevance of international law here but are making a pragmatic calculation. If you’re a state that agrees with the ICJ that not all uses of force are armed attacks, the Nicaragua judgment tells you that you’ll be violating international law by providing arms to the rebels but that your violation does not trigger a right of self-defense by the state on the receiving end of that violation---i.e., Syria. 4. Finally, it may be that 2(4) actually is playing a role in U.S. government discussions about whether to arm the rebels. Recall that the United States (unlike the ICJ) treats a use of force as synonymous with an “armed attack.” Let’s assume that the U.S. thinks that Nicaragua’s holding---that arming rebels is a use of force---retains currency in the international community. If the United States still thinks that uses of force are equivalent to armed attacks, then it may be concerned that a “use of force” in the form of providing lethal weapons to the rebels could be construed as an armed attack on Syria, triggering Syria’s right of self-defense. So perhaps 2(4) is playing some role in infusing caution into U.S. decision-making about whether to provide lethal equipment to the rebels, even if political, military, and intelligence calculations play the predominant role. The United States famously withdrew from the Nicaragua case before the Court held hearings on the merits---but the ICJ’s judgment there nevertheless may be influencing both U.S. and European analyses of what the legal and practical costs may be if they arm the rebels. That said, I am doubtful that article 2(4) will become part of the public conversation on this issue.
Ashley Deeks is the Class of 1948 Professor of Scholarly Research in Law at the University of Virginia Law School and a Faculty Senior Fellow at the Miller Center. She serves on the State Department’s Advisory Committee on International Law. In 2021-22 she worked as the Deputy Legal Advisor at the National Security Council. She graduated from the University of Chicago Law School and clerked on the Third Circuit.
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