Tom Ruys Luca Ferro

The Enemy of My Enemy: Dutch Non-Lethal Assistance for 'Moderate' Syrian Rebels and the Multilevel Violation of International Law

Netherlands Yearbook of International Law, 2019

Between 2015 and 2018, the Dutch government has supported Syrian rebels fighting the regime of President Bashar al-Assad through a ‘non-lethal assistance’ (NLA) program. Pertinent questions have been raised regarding the program’s compatibility with international law and a joint commission was tasked with developing criteria to evaluate the legality and political expediency of future programs. This commentary looks in retrospect at the legality of the NLA program. The substantive analysis is divided into three sections: First, it provides an overview of hard-and-fast facts about the program that have come to light following an admirable amount of journalistic scrutiny and parliamentary debate. Second, it takes a helicopter view of the legal landscape, touching upon the relevant primary norms of international law. Third, it applies that legal framework to the Dutch NLA program, tackling a threefold question: (1) Is the type of assistance legally relevant? (2) Is the type of beneficiary non-State armed group legally relevant? (3) Is the aim or purpose of the assistance programme legally relevant? While the authors recognize that the program was limited in scope and explicitly designed to stay within (or as close as possible to) the parameters of the international legal framework, they nevertheless conclude that it violated the principle of non-intervention, the prohibition on the use of force and the duty to ensure respect for international humanitarian law. Moreover, it may have led to secondary State responsibility for serious breaches of international law committed by the beneficiary armed groups. This conclusion puts in doubt the legality as a matter of lex lata of any such future program, be it lethal or not.