As the debate about whether to arm the rebels continues, scant attention has been paid to whether or not such a policy is legal under international law. I have asked Jamie Walsh – a Ph.D candidate at University College Cork, where he lectures on Nuclear Politics and Proliferation – to discuss EU export control laws and the legality of arming the Syrian opposition. Jamie previously worked at the Irish Department of Foreign Affairs and as a research assistant at the International Institute for Strategic Studies (IISS), London. Follow him on twitter @jamiewalsh_ie.
The EU Arms Embargo and the Syrian Conflict
UK Foreign Minister, William Hague, tweeted late last night “Right EU decision tonight. Arms embargo on Syrian opposition ended. No immediate decision to send arms. Other sanctions remain”. The tweet diplomatically massages the truth somewhat. Rather than reach a ‘decision’, after hours of talks EU Foreign Ministers failed to reach a consensus agreement on whether to extend or lift its arms embargo to Syrian rebels. As a result, the current embargo lapses on 1 June and it will now fall to individual member states to decide how to proceed.
William Hague’s tweet thinly papers over the deep divisions that exist between member states on the matter. The UK and France believe that lifting the embargo will put additional pressure on the Assad regime to reach a political solution. Syrian Government forces currently hold a significant military advantage over the rebels and have recently rolled back some of the rebel’s territorial gains. Hague and French Foreign Minister, Laurent Fabius, argue that the prospect of a militarily buttressed Syrian opposition will help force the Syrian president to the negotiating table. At the very least, they argue, it will assist a brutalised population in defending itself against a tyrannical regime.
Other EU member states, including Austria; the Czech Republic; Sweden and Ireland, argue that arming the rebels will exacerbate an already volatile situation and run the risk of heavy weaponry falling into the hands of Islamic extremist groups such as Jabhat al-Nusra. The loosely organized Syrian National Coalition for Opposition and Revolutionary Forces (SOC) does not have full operational command over all armed opposition and has shown little willingness to engage politically. The level of Syrian public support for the SOC is also unclear and it refuses to disassociate itself from undemocratic extremist groups. EU backing for supplying arms under these conditions will lead to further civilian casualties, undermine efforts for a political solution and set a dangerous precedent.
The Legality of EU Intervention
The Legality of EU Intervention Much of the debate as to whether the EU should intervene in the Syrian civil war is framed around political or moral arguments of what is ‘just’. Surprisingly little attention has been paid to the legal barriers that exist. Whichever side of the argument one leans towards and despite the expiration of arms embargo, the supply of weapons to the Syrian opposition by an EU member state is fraught with complexity and could, in fact, be a serious breach of international and EU law.
On 13 May 2013, the Austrian Foreign Ministry circulated a discussion paper to its EU partners, made publicly available by The Guardian, which vehemently refutes the British-French position in legal as well as political and security terms. Specifically, the Austrian paper claims “the supply of arms to the Syrian opposition would violate EU Council Common Position 2008/944/CFSP on the control of arms exports by EU Member States”.
For those unfamiliar with EU law, the 2008 EU Common Position is not an obscure EU political agreement. It is a legally binding instrument that establishes a strict set of eight criteria, which must be met before any member state approves the export of military or dual-use items. It replaced the non-legally binding 1998 EU Code of Conduct on Arms Exports with a view to preventing the export of military technology and equipment which might be used for undesirable purposes such as internal repression or international aggression or contribute to regional instability.
The Austrian discussion paper argues that, due to the highly unstable situation in Syria, EU support for arming the rebels would constitute a violation of six of the eight criteria. Of these six, criterion 2 places a special emphasis on respect for ‘human rights in the country of final destination’ and requires member states to deny an arms export licence if there is a ‘clear risk’ that the ‘military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law’. Given that the UN Report of the Independent International Commission of Inquiry on the Syrian Arab Republic reported “war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti-Government armed groups” it is difficult to reconcile militarily supplying the rebels with the objectives of the EU’s own export control laws.
Furthermore, there is a substantial risk that supplying arms to the Syrian opposition would ‘provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination’, which is expressly prohibited under Criterion 3 of the Common Position. While the UK and France argue that only rebel ‘moderates’, committed to the democratization of Syria would be supplied with arms, there are an estimated 600 rebel groups operating in Syria at present, many of which follow disparate political objectives. It’s not clear how, exactly, individual groups would be vetted before receiving an arms transfer or how the UK and France could ensure the arms are not ‘diverted to an undesirable end user for an undesirable end use’, as per Criterion 7 of the Common Position.
Arms Trade Treaty
As the Austrian position paper demonstrates, existing EU and international law provides compelling legal arguments against supplying the Syrian opposition.  However, the paper does not discuss the potential consequences it has for multilateral efforts to establish an effective and enforceable Arms Trade Treaty (ATT).
After decades of Civil Society lobbying and eight years of diplomatic wrangling, on 2 April 2013 the UN General Assembly adopted the text of a draft Treaty regulating the $70 billion trade in conventional weapons. Proponents of the Treaty argue that the unregulated arms trade contributes to gross violations of human rights, fuels conflict and regional instability and facilitates terrorism, violent crime and gender based violence. While an individual treaty cannot put an end to such acts, the ATT does establish common international standards for the regulation of the international trade in conventional arms, ammunition and parts and components “for the purpose of contributing to peace and security, reducing human suffering, and promoting cooperation and transparency”.
Although the Treaty has been hailed as an “historic… landmark global instrument” it is in a state of fragile infancy. It will open for signature on June 3 and its provisions will not come into force until 90 days after the 50th State ratifies. The EU (particularly the UK) has committed significant political and financial resources to supporting a robust ATT since the launch of the initiative. By failing to extend the current Syrian arms embargo, the EU risks undermining the objectives of the ATT and could damage its prospects for wide adherence.
More specifically, if supplies of arms to the Syrian opposition from member states of the EU (that are also parties to an operating ATT) go ahead, they could directly contravene the letter of the treaty. Artilce 6.3 forbids the transfer of conventional arms if the State Party has knowledge that the items “would be used in the commission of… grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such”. Furthermore, Article 7 states that the exporting State Party shall not authorize an arms transfer where there is “an overriding risk” that the arms “would contribute to or undermine peace and security” or could be used to “commit or facilitate a serious violation of international humanitarian law”.
Of course, Britain and France could argue that, in their estimation, an overriding risk does not exist and thus the provisions of ATT are not applicable. However, such an argument is unlikely to wash with other States Parties or NGOs. Indeed, given the deep divergence of views, it could push the boundaries of the ‘solidarity’ principle between EU member states to breaking point. To the public, it could act as another example of how the fundamental objectives of international humanitarian law are all too often sacrificed at the altar of political exigency.
 The Austrian paper also argues that supplying arms to Syrian rebels would contravene UN Security Council Resolution 2083 establishing an arms embargo against individuals and entities associated with Al-Qaida.