25 September 2012

Providing weapons to Syria: a situation of shared responsibility?

The continuing conflict in Syria has raised many questions of shared responsibility (see, for example, here and here). This blog post will discuss the issue of the provision of weapons and other military equipment to Syria.

In June this year, Human Rights Watch urged governments and companies around the world to stop signing new contracts (and evaluate existing contracts) with arms suppliers that are providing weapons to the Syrian government, such as the Russian firm Rosoboronexport, and suggested that those providing weapons to the Syrian regime could be regarded as being complicit in the crimes committed by the Syrian army. According to a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic, these crimes could include crimes against humanity and war crimes. The Chair of the Independent Commission has said that there are ‘grounds to believe that Government forces and the Shabbiha committed war crimes, gross human rights violations and crimes against humanity’ and that similarly, ‘anti-Government forces committed war crimes, including murder, extrajudicial executions and torture’.

Rosoboronexport is not the only actor outside Syria accused of providing material support to Bashar Al-Assad’s regime. On 4 September, the New York Times reported that Iran has resumed shipping military equipment to Syria through Iraqi airspace. According to United States intelligence, it is likely that these planes are carrying weapons and military equipment. Last March, Iranian flights through Iraqi airspace were stopped for some time after Iraq was requested to do so by the United States. However, when these overflights resumed in July, Iraq accepted Iranian assurances that its airplanes carry only humanitarian aid and allowed them passage through its airspace without any form of inspection.

A series of UN Security Council resolutions have imposed an arms ban on Iran, and the latest in line ‘calls upon’ all States to inspect cargo to and from Iran in their territory if the State in question has reasonable grounds to believe it contains prohibited items. The US claims that Iraq has an obligation under these resolutions to inspect the cargo of Iranian planes that are suspected of flying arms to Syria, and accuses Iraq of allowing Iran to transport weapons to Syria through its airspace. These accusations have been reiterated in a Western intelligence report disclosed on 20 September by Reuters. This report states that large quantities of Iranian weapons have been transported to Syria through Iraq, allegedly thanks to an agreement between senior Iraqi and Iranian officials.

Iraq has rejected all accusations, and reported last week that it has denied permission to a North Korean plane to pass through Iraqi airspace because of suspicions that it was carrying weapons to Syria. In addition, an Iraqi government official was quoted this Sunday as saying that authorities will conduct random inspections of Iranian airplanes heading for Syria on suspicion that they might be carrying weapons.

Should the cargo transported by Iranian planes in fact consist of weapons or other military equipment, such material support could be used by the Syrian army to commit gross human rights violations against the Syrian population. While at this point we can do no more than speculate as to what it is these planes are carrying, the facts and allegations cited above raise a range of questions on the possible responsibility of actors that provide support to Syria. Can such actors be regarded as aiding or assisting the internationally wrongful act(s) committed during this conflict?

Reports have drawn attention not only to the support provided to the Syrian regime, but also to the support that opposition forces in Syria have received from actors outside Syria. This allegedly includes military support from Saudi Arabia, Qatar and Turkey, as well as support from the US, France and the UK (which has somewhat curiously been referred to as ‘non-lethal’ assistance). It should be noted that the general rule on aid or assistance in international law deals only with the responsibility of a State providing aid or assistance to another State. It remains a somewhat troubling lacuna that support to opposition forces, at least as a matter of general international law, will not easily engage the responsibility of supporting states for aid or assistance. Of course, it could be argued that States providing support to the Syrian opposition are acting in violation of international law, for example because such conduct is not in accordance with the principle of non-intervention.

For the States that provide support to the Syrian government the legal situation appears to be different. Article 16 of the ILC Articles on State Responsibility (ASR) provides that a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if a) that State does so with knowledge of the circumstances of the internationally wrongful act; and b) the act would be internationally wrongful if committed by that State. In its commentaries, the ILC further clarifies that knowledge of the circumstances of the wrongful act is not sufficient; a State is only responsible for aid or assistance if it intended to facilitate the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.1)

It is apparent that there are several hurdles to be crossed before responsibility for aid or assistance can be established. In its commentaries to the ASR the ILC has stated that a State may be held responsible if it ‘provides material aid to a State that uses the aid to commit human rights violations’, but only if it was ‘aware of and intended to facilitate the commission of the wrongful conduct.’2) Information about the situation in Syria is widely available, and ‘knowledge of the circumstances of the internationally wrongful act’ is arguably present. However, it is not clear how one would establish that Iran intended for its material support to be used to commit gross human rights violations in the absence of explicit pronouncements illustrating such intent. The intent-requirement has indeed been subjected to serious criticism due to the practical difficulties relating to the establishment of a State’s intent.3)

Another ambiguity relates to the question whether supportive conduct should reach a certain threshold in order to be qualified as aid or assistance. For example, should Syria have used the Iranian weapons for the commission of its crimes in order for Iran to be held responsible for aid or assistance? The ILC’s commentaries in this respect are contradictory. On the one hand, they provide that the aid or assistance need not have been essential for the performance of the internationally wrongful act, but rather require that it should have ‘contributed significantly to that act.’4) This implies that some (undetermined) form of causation should be taken into consideration. On the other hand, however, the commentaries simply state that aid or assistance need not be substantial but ‘may have been only an incidental factor in the commission of the primary act’, contributing ‘only to a minor degree, if at all, to the injury suffered.’5) This disparity makes it particularly difficult to indicate when supportive conduct will be considered as aid or assistance.

A different but related issue concerns aid or assistance provided to States that themselves provide aid or assistance to a wrongdoing State. Iraq’s role may, at least based on the above-mentioned allegations, be an example. Its role would be complicated, as it is not accused of actively providing weapons to Syria but rather of allowing such weapons to pass through its airspace without taking any action. The first question would be whether this conduct should be qualified as active support (which would be the case if Iraq were to give explicit permission for these overflights) or as support by omission.6) While it cannot be excluded that aid or assistance can take the form of an omission, the fulfilment of the requirements set out above in such a case would appear to be more difficult to establish. For example, it would have to be determined whether Iraq’s conduct was a conscious choice aimed at facilitating the transfer of weapons so that they may be used to commit gross human rights violations, or mere passivity (or even inability) lacking any form of intent whatsoever. Moreover, one may wonder whether Iraq should be considered as aiding or assisting Iran by allowing it to provide aid or assistance to Syria, aiding or assisting Syria in the human rights abuses of its people, or aiding or assisting both?

In view of the somewhat clouded nature of the principle of aid or assistance, the question should be considered whether we need at all to evaluate the legal position of, for example, Iran and Iraq in these terms. In a recent book chapter, Olivier Corten and Pierre Klein argue that we should resort to the concept of due diligence in many situations in which aid or assistance cannot be established because of its strict conditions of application7) (the Corfu Channel case and the Application of the Genocide Convention case are analysed to illustrate this argument).

Responsibility for a failure to exercise due diligence can be established without having to establish intent, as it requires only that a State knew or should have known that certain unlawful conduct was likely to occur. In such situations, a State should take those measures that are reasonably within its power to make sure that its territory is not used for activities contrary to the rights of others (in this case, the rights of the Syrian population and, if one were to argue that the Syrian conduct is in violation of an obligation erga omnes, the rights of all States of the international community), regardless of whether the State in question could in fact have prevented the unlawful conduct.

If one were to argue that Iraq knew or should have known of the possibility of Iranian airplanes carrying material support to Syria and of the risk that this support could be used to commit gross human rights violations, this would entail that Iraq is under the obligation to take measures within its power to prevent such unlawful conduct. These measures could reasonably include inspecting the cargo of airplanes that are suspected of carrying weapons and military equipment through its airspace. The same approach could of course be applied to Iran. In this respect one may think of a due diligence obligation of supporting States to make sure that their support is not used for the commission of internationally wrongful acts.8)

Should the international responsibility of all three States be established, it would still have to be determined if and how this responsibility should be shared: who can be held responsible for what, and what does this entail in terms of reparation? The multitude of questions raised by this situation once again illustrate the complexity and importance of the topic of shared responsibility in international law.

Tags: Aid and Assistance, Complicity, Iran, Iraq, Knowledge, Syria, Weapons