Can We Arm the Rebels? The International Legality of Arms Transfers to non-State Armed Groups in the light of the Libyan and Syrian conflicts

Abstract

Recent Western reluctance to send troops on the ground in the last years conflicts in Libya and Syria have led some of them to increasingly pose the opportunity to transfer arms and offer other military assistance to armed opposition groups. As opposed to the traditionally covert nature of that kind of transfers, at least in Europe the debate has now developed openly and publicly in the diplomatic and intergovernmental scene. This represents an opportunity with few precedents to assess what the States believe or want to be the legal regime of the so-called indirect military intervention. The practice developed in this context does not seem to imply a general challenge to the rigorous doctrine developed by the International Court of Justice in the Nicaragua and Democratic Republic of Congo cases, perhaps with the exception that represents the greater permissiveness that may be detected relating to transfers of non-lethal or protective military equipment. Notwithstanding, the practice shows that the area of indirect military intervention reflects the same tensions and dilemmas that are present in connection with more grave uses of force on issues such as the possible legitimizing virtuality of recognition of opposition groups, the scope of self-defense in case of attack from terrorist groups and, in particular, what are the permissible reactive measures under the cover of the Responsibility to Protect in case of paralysis of the Security Council.