By Emma Schulte

Emma Schulte is a research assistant at the University of Groningen. She’s the founding editor of the Groningen Journal of European Law and a blog editor at Jus Cogens: The International Law Blog. Twitter: https://twitter.com/EmmaSchulteEU LinkedIn: www.linkedin.com/in/emmajschulte

Introduction

On the 18th of September the Dutch Minister of Foreign Affairs, Stef Blok, announced that the Netherlands is invoking Syria’s responsibility for violating the Convention Against Torture (CAT). This development has already been extensively discussed in the blogosphere (see the Opinio Juris blog, specifically Priya Pillai’s post and the post by Yasmine Nahlawi and Sanna Sekkarie). As mentioned by Nahlawi and Sekkarie, the Syrian Ministry of Foreign Affairs fired back with a heavy accusation that the Dutch have supported terrorist organisations in Syria. While no proof has been given in support of this imputation, it makes it worth revisiting the circumstances under which the accusation came to exist: namely, the Dutch Non Lethal Assistance (NLA) programme and its supposed infringement of the principle of non-intervention.

Between 2015 and 2018, the Dutch government assisted armed opposition groups in Syria by means of an NLA programme, which entailed the provision of vehicles, electronics, and prefab containers. The Syrian government did not consent to this assistance, making the fact that it was an illegal intervention even more apparent. The Dutch response only added salt to the wound when the report commissioned by the Tweede Kamer (published in June of this year by the Dutch CAVV) refused to address the legality of NLA citing it was not “equipped” to do so (page 14).  

But: is the concept of NLA actually an infringement of non-intervention?

Under the well-known gospel of Nicaragua, it would not take a lawyer to see that NLA is not compatible with the principle of non-intervention. However, I argue that there is an inherent conflict between the ICJ’s understanding of international customary law and the reality of international customary law, and that this incorrect translation, which I will specify below, impacts the ability to provide an authoritative answer on the legality of NLA. 

Bridging the Gap Between Normative Constellations

The existence of indirect non-forcible means of intervention was confirmed in Nicaragua, where the ICJ also recognised non-intervention as a customary norm, defining it as ‘the right of every sovereign State to conduct its affairs without outside interference’. Subsequently it laid out the following rules, which will be helpful to us to examine the particular situation of the Netherlands in the following section:

• the Court introduced the criterion of coercion as a condition for an unlawful intervention;
• the Court further touched upon the type of assistance which would constitute an unlawful intervention. Although there is no mention of NLA, the Court does analyse assistance in the form of arming, training and funding, concluding that all types are unlawful interventions; and,
• lastly, the Court accepts a derogation in the form of humanitarian assistance, strictly defining its scope as non-discriminatory, with a purpose of protecting human lives and ‘alleviating suffering’. The Court also notes that the content of such assistance ‘does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death’.

While the Court correctly identifies the existence of non-intervention as a customary norm, it does not particularly clarify its meaning and its content, which remains unsettled. Historically, intervention and the use of force were interchangeable concepts, indicating that the underlying element of intervention encompassed only coercion by forcible means. This is a much narrower definition than proposed in Nicaragua, and indicates a disconnect. I am of course not the only one who sees that disconnect. For example, ad hoc judges have criticised the Court for not providing enough evidence for state practise in its judgement. (See Meron at pg. 820). While it is true that there is strong evidence of opinio juris suggesting that even indirect non-forcible means of intervention is unlawful, state practice has not been sufficiently consistent in order to determine the precise content of the norm.  

Analysing the Legality of NLA

As mentioned above, the Dutch government provided a myriad of aid to Syrian opposition groups. In total, a very comfortable 25 million euros was spent on the provision of armoured vehicles and other non-lethal, but nevertheless militaristic equipment. This equipment was solely granted to opposition groups. It therefore quickly becomes apparent that the actions by the Dutch government under the Nicaragua-framework were contrary to international law. However, this is not the end of the story. The underlying theme in my analysis is the presence of contested customary norms, including intervention based on humanitarian grounds and self-determination. I build my argument upon a peculiar notion introduced by Akehurst, that conflicting customary norms can exist simultaneously. The legal value of such a grey area would entail that the situation in question is one that is lawful. To demonstrate this, let’s first consider the applicability of these norms, before considering their status in customary law. 

The evidence of the widespread brutality of al-Assad’s regime, while arguably not as severe as the genocidal policy that triggered NATO’s interference in Kosovo, provides strong grounds to justify NLA on the basis of humanitarian intervention, a contested customary norm. This is especially so since, contrary to Syria’s allegations, the assistance has only been proven to have been provided to moderate groups rather than belligerents. Furthermore, the violent suppression of opposition to al-Assad’s regime and the acknowledgement of the opposition’s legitimacy by multiple states prompt justifications based on self-determination and recognition of the opposition. These are also contested customary norms and entail a supposed legality for intervention when it is based on protecting the right for self-determination for opposition when it is recognised as the de facto government of a state.

Despite the appropriateness of these arguments, the Dutch government will not be able to validly rely on the above derogations without providing sufficient evidence for their normative status in customary law. Opponents to these derogations base their argument on one of two factors. The first is the fact that these derogations, specifically humanitarian intervention, are interpreted as constituting an intervention by direct forcible means, as in the past we’ve mostly seen this argument used in situations where troops have been deployed (see Henderson and Rodley); the second is the argument that there is a lack of opinio juris for the legality of these derogations, especially intervention that is meant to support a people’s self-determination. These are valid arguments that suggest these derogations are not customary norms. However, it is equally valid to argue the opposite, that they are customary norms:

1. The hesitance in permitting intervention is based on the belief that it cannot be reconciled with the prohibition on the use of force. The fact that NLA is not forcible means that there is no hurdle to accepting the above derogations as customary norms. While NLA is a fairly new concept, one for which it can at most be argued to be an emerging norm, the increase in this type of assistance illustrates state practice is aligning itself with this norm (see Nowak’s comment that ‘[t]he corresponding absence of unequivocal approval or plain protest by the international community and the absence of any doctrinal elaboration gives rise to the question of whether this behaviour is indicative of a new rule or creates nothing but the illusion of legality). While it is true that there is an absence of expressed approval and protest by states, it would also be wrong not to note a very important indicator of emerging opinio juris, which is the acceptance of NLA by supranational organisations such as the European Union and the Arab League.
2. This supposed lack of opinio juris is a difficult hurdle to overcome in arguing for the existence of customary norms such as humanitarian intervention. However, the two-element theory adopted by the ICJ (the need for opinio juris and state practice) is not the only approach to identifying rules of a customary nature. Theoretical alternatives have also been explored in the Feminist school of thought. For example, the approach adopted by Nowak and other Feminist scholars views customary law as a ‘systemisation of practice’. Nowak uses this notion as a means to explain the situation of the seeming legality NLA. She bases the idea, in part, on the work of Orford, who uses the idea of ‘systemisation of practice’ to explain the acceptance of the executive rule of the UN, she states that the ‘[e]xecutive rule thus developed through the systematisation of practice rather than through the development of detailed doctrines or norms’ (See: Orford at pg. 6). The remarks by these scholars indicate that it is not unusual for norms, whether as an abstract concept or in relation to the formation of customary law, to always need the support of opinio juris to become an accepted norm. Deviating from the two-element theory that the ICJ adopts, may therefore not entirely be considered sacrilege.
3. Lastly, Nicaragua contains a modification clause, which states that derogations may be acceptable if substantiated by sufficient consensus amongst states and justified by a legal norm. This is evidence that derogations may be permissible under the UN framework – and therefore also becomes a very important clause. It indicates the ICJ’s willingness to adapt its translation of customary law if needed, and because of that acts as a mechanism which will ensure compatibility between both the UN framework and international customary law.

While both those arguments in favour and those against derogations for the principle of non-interference are convincing. It is not pragmatic to view these arguments as opposing, because it disconnects reality from the legal framework. Instead of searching for the dividing line, it is more efficient to accept that opposing customary norms are existing simultaneously. This way, legal discussion can become more grounded in reality, which will allow for  the legal grey area to be more effectively resolved. 

Conclusion

It is evident that by applying strictly the norms circumscribed by Nicaragua, the actions of the Dutch government would constitute an unlawful intervention. However, this approach does not effectively translate the reality of international law and the complexity of prescribing legal value to contested norms. It is in this notion that I conclude that the actions of the Dutch government were inherently not unlawful. The lack of consensus on the various existing justifications and their corresponding customary norms indicates the presence of the phenomenon where two customary norms exist simultaneously. While this is conceptually paradoxical, it is the theoretical basis for what constitutes a legal grey area. With that being said, due to the constant evolution of customary norms it is highly likely that the continuation of state practice and expressions of opinio juris with respect to NLA will eventually cause the coin to drop on its side. Now that the Netherlands has officially invoked Syria’s responsibility for its widespread human rights violations, the legal basis for why the NLA programme was carried out was only strengthened.