¹ On which, see, in particular, Vierucci, Luisa, Gli accordi fra governo e gruppi armati di opposizione nel diritto internazionale (Napoli: Editoriale Scientifica, 2013).Google Scholar

² The latter will not be our focus for two reasons: they are regulated in a different way, which has already been the subject of many studies (Cassese, Antonio, Self-Determination of Peoples (Cambridge: Cambridge University Press, 1995),Google Scholar is still a leading study in this area; see also Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford: Oxford University Press, 2012) at 212–35;Google Scholar Grado, Valentina, Guerre civili e Stati terzi (Padova: Cedam, 1998) at 107–45, 350–53);Google Scholar and they now represent an exceptional case. As is widely known, there are currently only two clear-cut external self-determination situations, which unfortunately still present a concrete risk of again leading to armed conflict — that is, Western Sahara and Palestine. Cf also Hafner, Gerhard, “Report on Military Assistance on Request” (2011) 74Google Scholar YB Inst Intl L 245.

³ E.g. Shaw, Malcolm N, International Law, 8th ed (Cambridge, UK: Cambridge University Press, 2017) at 877;CrossRefGoogle Scholar Ronzitti, Natalino, E’ lecito armare i ribelli libici? (Rome: Istituto Affari Internazionali, 2011), online: <http://www.affarinternazionali.it/2011/04/lecito-armare-i-ribelli-libici/>;Google Scholar Ronzitti, Natalino, “NATO’s Intervention in Libya: A Genuine Action to Protect a Civilian Population in Mortal Danger or an Intervention Aimed at Regime Change?” (2011) 21Google Scholar Italian YB Intl L 9 [Ronzitti, “NATO’s Intervention”]; Grado, supra note 2 at 347–50.

⁴ As in the city of Daraya, see, among others, Caryl, Christian, “Mourning the Syria That Might Have Been,” Foreign Policy (16 September 2016);Google Scholar see also, inter alia, “Rebels Begin Evacuation of Syria’s Last Besieged Enclave,” Reuters (7 May 2018).Google Scholar

⁵ “Iraq Calls for U.N. Emergency Meeting on Turkey’s Military Deployment,” Reuters (6 October 2016).

⁶ “IS Conflict: US Arming Syrian Kurds Unacceptable — Turkey,” BBC News (10 May 2017).

⁷ See, respectively, Gibbons-Neff, Thomas, “How a 4-Hour Battle between Russian Mercenaries and U.S. Commandos Unfolded in Syria,” New York Times (24 May 2018);Google Scholar Dettmer, Jamie, “France Deploys Special Forces in Syria as IS Loses Ground,” Voice of America (9 June 2016).Google Scholar

⁸ As far as the Islamic State of Iraq and Syria (ISIS)/Daesh is concerned, “the Syrian civil war was the crucible in which ISIS was hardened and forged.” Brands, Hal & Feaver, Peter, “Was the Rise of ISIS Inevitable?,” Survival: Global Politics and Strategy (June–July 2017) at 31; they also refer to Fawaz Gerges, ISIS: A History (Princeton, NJ: Princeton University Press, 2016),Google Scholar especially ch 6. In this sense, see also Shaikh, Salman & Roberts, Amanda, “Syria” in Sebastian von Einsiedel, Malone, David M & Ugarte, Bruno Stagno, eds, The UN Security Council in the 21st Century (Boulder, CO: Lynne Rienner Publishers, 2016) 718.Google Scholar

⁹ “Resources are broadly defined as any funds, weapons, equipment, materiel or personnel that have immediate or potential coercive value.” Lockyer, Adam, “Foreign Intervention and Warfare in Civil Wars” (2011) 37:5CrossRefGoogle Scholar Rev Intl Studies 2337 at 2339. Charity Butcher adopts a broader definition, also including cutoff of aid already in place. See Butcher, Charity, “Terrorism and External Audiences: Influencing Foreign Intervention into Civil Wars” (2016) 28CrossRefGoogle Scholar Terrorism and Political Violence 774 at 781, also referring to Patrick Regan’s works (see note 187 below).

¹⁰ Various methods to define the threshold that materially qualifies a conflict as “civil war” are reported by Charity Butcher, supra note 9 at 775. Cf also Arimatsu, Louise & Choudhury, Mohbuba, “The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya,” International Law PP 2014/01 (Chatham House, March 2014).Google Scholar Cf also Roth, Brad R, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 1999) at 172–73Google Scholar [Roth, Governmental Illegitimacy], focusing, in particular, on the international status of insurgent forces.

¹¹ According to the well-known Tadić case, “[a]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” ITCY, Prosecutor v Tadić, Case no IT-94-1-AR72, Jurisdiction Decision (2 October 1995) at para 70 [Tadić]; in this regard, see, in particular, Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge: Cambridge University Press, 2010) at 117ff.CrossRefGoogle Scholar Cf also International Committee of the Red Cross (ICRC), “2016 Commentary on the First Geneva Convention 1949” (22 March 2016) at para 422, online: <https://ihl-databases.icrc.org/applic/ihl/dih.nsf/vwTreaties1949.xsp>..>Google Scholar

¹² Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), art 1(2) [Additional Protocol II].

¹³ The latter distinction echoes the one made by the Institut de droit international in its resolution “Le principe de non-intervention dans les guerres civiles”, adopted on 14 August 1975 at the Wiesbaden session, art 1(1), online: <http://www.idi-iil.org/app/uploads/2017/06/1975_wies_03_fr.pdf> [Institut de droit international Resolution].

¹⁴ Charter of the United Nations, 26 June 1945, 1 UNTS 15 (entered into force 24 October 1945).

¹⁵ United Nations General Assembly (UNGA) Res 51 and annex, UNGAOR, 43rd Sess, Supp No 49, UN Doc A/43/49, vol 1 (1989) 276.

¹⁶ ICRC, “Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting” (17 July 2012), online: <https://www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm>..>Google Scholar

¹⁷ Still operating at the time of writing: Independent International Commission of Inquiry on the Syrian Arab Republic, “Third Report of the Commission of Inquiry on the Syrian Arab Republic,” UN Doc A/HRC/21/50 (15 August 2012) at 6, para 12, online: <https://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx>..>Google Scholar

¹⁸ This aspect is underlined by Nuβberger, Benjamin, “Military Strikes in Yemen in 2015: Intervention by Invitation and Self-Defence in the Course of Yemen’s ‘Model Transitional Process’” (2017) 4CrossRefGoogle Scholar J Use Force & Intl L 110 at 129 (concerning the form of the “invitation” to intervene (at 126–28)); Henderson, Christian, The Use of Force and International Law (Cambridge, UK: Cambridge University Press, 2018) at 352, 370–73CrossRefGoogle Scholar [Henderson, Use of Force].

¹⁹ See Roth, Governmental Illegitimacy, supra note 10 at 183ff.

²⁰ On the combined relevance, in the case of Mali, of the control of the capital and the desert nature of much of the area controlled by the insurgents, see Magi, Laura, “Sulla liceità dell’intervento francese in Mali” (2013) 96Google Scholar Rivista di diritto internazionale 551 at 560.

²¹ See Roth, Governmental Illegitimacy, supra note 10 at 138–43 (including an extensive discussion of Hersch Lauterpacht’s views), 164, 414ff.

²² On recognition in internal armed conflicts, see also Simonen, Katariina, “Premature Recognition and Intervention in Libyan Internal Affairs: Who Had the Right to Decide That Gaddafi Must Go?” (2012) 53Google Scholar Indian J Intl L 421 at 427–30.

²³ Roth, Governmental Illegitimacy, supra note 10 at 151.

²⁴ See Magi, supra note 20 at 561. Cf also the discussion of the Ivorian case in Simonen, supra note 22 at 436.

²⁵ United Nations Security Council (UNSC) Resolution 2259 (2015) at para 3.

²⁶ UNSC Resolution 2216 (2015), adopted under Chapter VII on 14 April 2015, refers to it as the “legitimate Government of Yemen” and “demands that the Houthis immediately and unconditionally … withdraw their forces from all areas they have seized, including the capital Sana’a” (point 1; emphasis in original). “There was a fundamental agreement that we as an international community should continue to support the legitimate government.” Gerald Feierstein, former ambassador to Yemen and top State Department official under the Obama administration, quoted by De Luce, Dan, McLeary, Paul & Lynch, Colum, “From the War on al Qaeda to a Humanitarian Catastrophe: How the US Got Dragged into Yemen,” Foreign Policy (11 September 2017) at 3.Google Scholar In this regard, see also Nuβberger, supra note 18 at 124, 140ff.

²⁷ The French government invited both the Libyan Prime Minister Fayez al-Sarraj and General Khalifa Belqasim Haftar, head of the rival governmental entity (“the Libyan House of Representatives”) located in Tobruk and controlling part of eastern Libya, to the meeting that took place in Paris in July 2017 (they were again invited to a broader conference on Lybia in Paris on 29 May 2018; see Aliboni, R, “Libia: una strategia dall’alto vuota e inefficace” (2018), online: <http://www.affarinternazionali.it/2018/05/libia-strategia-vuota-inefficace/>).Google Scholar Furthermore, the Italian defence minister also officially met General Haftar in Rome on 26 September 2017. Cremonesi, Lorenzo, “Pinotti incontra Haftar,” Corriere della Sera (27 September 2017).Google Scholar It is worth noting that paragraph 5 of the above-mentioned UNSC Resolution 2259 (2015) called upon member states “to cease support to and official contact with parallel institutions that claim to be the legitimate authority but are outside of the Agreement as specified by it.”

²⁸ The equation democratic character = legitimacy has also been evident throughout the European Union’s (EU) response to the Syrian crisis. See e.g. “Elements for an EU Strategy for Syria,” Joint Communication to the European Parliament and the Council by the High Representative of the Union for Foreign Affairs and Security Policy, Doc JOIN(2017) 11 final (14 March 2017) at 7.

²⁹ See e.g. Orford, Anne, “Moral Internationalism and the Responsibility to Protect” (2013) Eur J Intl L 83 at 101,CrossRefGoogle Scholar on the possible corollary to the said principle: “Indeed, a government that cannot protect its citizens may no longer even be recognizable as the lawful authority in a territory.” On the “responsibility to protect” principle, see discussion later in this article.

³⁰ Thus, the United States (together with other states) questioned the legitimacy of the Libyan and Syrian governments on these grounds, while, at the same time, supporting Saudi Arabia, an absolute monarchy with a very poor human rights record and under serious accusations of committing international crimes in the context of its intervention in the Yemenite civil war.

³¹ Jean-Yves De Cara observes (in the context of a discussion on intervention by invitation) that “a democratic requirement is not within the field of positive international law, it could lead to abuse and interference in domestic affairs.” De Cara, Jean-Yves, “The Arab Uprisings in the Light of Intervention” (2012) 55Google Scholar German YB Intl L 11 at 21; see also Talmon, Stefan, “The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law,” EJIL Talk! (3 March 2011), online: <https://www.ejiltalk.org/the-difference-between-rhetoric-and-reality-why-an-illegitimate-regime-may-still-be-a-government-in-the-eyes-of-international-law/>.Google Scholar

³² See, among others, Roth, Governmental Illegitimacy, supra note 10 at 179, 187.

³³ “Washington’s assistance to Persian Gulf countries waging war against Houthi rebels in Yemen was envisioned as an inexpensive way to show support for an ally.” De Luce, McLeary & Lynch, supra note 26 at 3.

³⁴ Jarrett, Mark, The Congress of Vienna and Its Legacy (London: IB Tauris, 2013) at 354.Google Scholar This was especially part of Tsar Alexander’s complex conception.

³⁵ Russia constantly claimed its right to continue to provide military assistance to the Syrian government until an arms embargo was brought in. See Ruys, Tom, “Of Arms, Funding and ‘Non-lethal Assistance’” (2014) 13:1CrossRefGoogle Scholar Chinese J Intl L 13 at 16 [Ruys, “Of Arms”].

³⁶ “(I)t is difficult to see what would remain of the principle of non-intervention in international law if intervention. which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.” Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 70 at 14, para 246 [Military Activities against Nicaragua; emphasis added]; cf Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), [2005] ICJ Rep 116 at 168, paras 42ff [Armed Activities in the Congo].

³⁷ Invitation by the legitimate government has been the main argument invoked by Saudi Arabia and the other members of the coalition to justify their intervention in Yemen. See the Letters to the Secretary-General and the President of the Security Council by Bahrain, Qatar, Saudi Arabia, the United Arab Emirates and Kuwait, UN Doc S/2015/217 (26 March 2015); see also Tancredi, Antonello, “Sulla liceità dell’intervento su richiesta alla luce del conflitto in Mali” (2013) 96Google Scholar Rivista di diritto internazionale 946 [Tancredi, “Sulla liceità”]. The Iranian minister for foreign affairs qualified Iran’s direct involvement in the Syrian conflict as an intervention upon invitation of the Syrian government to fight ISIS/Daesh: “Il ministro iraniano Zarif. ‘Sul rispetto dei diritti chiediamo reciprocità,’” Corriere della Sera (17 April 2016).

³⁸ Georg Nolte observes that a government “must display a minimum of effectiveness to have international legal authority to invite foreign troops. This minimum is normally present in cases of internal conflict as long as a government that is challenged by rebellion has not lost control of a sufficiently representative part of the State territory.” Nolte, Georg, “Intervention by Invitation,” Max Planck Encyclopedia of Public International Law (2010) at para 18, online: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1702?prd=EPIL>.Google Scholar Some of the controversial aspects of the notion of governmental (il)legitimacy emerge in this area too; thus, the same author argues that even though “non-democratic” governments may also invite foreign troops if they fulfil the effectiveness criterion, a democratically elected government may invite even after losing “almost all effective control” (at paras 17–18). Similarly, a legitimate government overthrown by a coup d’état would also enjoy a right to invite, at least until the new government acquired effective control (at para 20).

³⁹ Interestingly, counter-intervention was mentioned in Article 5 of the Institut de droit international Resolution, supra note 13, in spite of the non-intervention approach that inspires the rest of the text and its ambiguous terms with regard to the possibility of counter-intervening if an intervention has taken place in violation of the non-intervention clauses: “[Q]u’en se conformant à la Charte et à toute autre règle pertinente du droit international.” On counter-intervention, cf Lieblich, Elian, International Law and Civil Wars: Intervention and Consent (London: Routledge, 2014) at 169–72;Google Scholar De Cara, supra note 31 at 25; Henderson, Use of Force, supra note 18 at 367–70.

⁴⁰ “Iran has been arming and training the Houthi militia, which is responsible for the killing of innocent citizens. No one can deny that Iran created, supported and armed the Houthi militia. The coalition’s military aim [is] to stop Iran’s military support for the militias. Iran’s political initiatives, however, will be addressed by politicians.” “Saudi Ministry of Defense Daily Briefing: Operation Decisive Storm” (15 April 2015), online: Saudi Embassy <https://www.saudiembassy.net/press-release/saudi-ministry-defense-daily-briefing-operation-decisive-storm-4>.

⁴¹ See e.g. “Yemen Conflict: UN Official Warns of World’s Biggest Famine,” BBC News (9 November 2017); cf Nuβberger, supra note 18 at 138. Iran has denied it, but the Letter from the Panel of Experts on Yemen Established pursuant to Security Council Resolution 2140 (2014), addressed to the President of the Security Council, UN Doc S/2018/192 (22 January 2016) at 24, para 82 [Doc S/2018/192], does contain evidence of Iranian-made weapons being used by Houthi fighters. However, in its subsequent report of 27 January 2017, pursuant to Resolution 2266 (2016), the Panel of Experts ruled out direct large-scale supply of arms from Iran and detected mainly small-scale trafficking. Letter from the Panel of Experts on Yemen addressed to the President of the Security Council, UN Doc S/2018/193 (27 January 2017) at 25, para 62 [Doc S/2018/193]. The latest such report nevertheless found that Iran failed “to take the necessary measures to prevent the direct or indirect supply, sale or transfer of military equipment related to extended-range short-range ballistic missiles to the Houthi-Saleh forces.” Letter from the Panel of Experts on Yemen mandated by Security Council Resolution 2342 (2017) addressed to the President of the Security Council, UN Doc S/2018/68 (26 January 2018) at 32, para 96.

⁴² The US Obama administration qualified Russia’s provision of military assistance to the Syrian government (just before Russia’s direct military intervention) as a “mistake,” not as a violation of international law. “Obama Warns Russia against Helping Arm Syrian Government,” Associated Press (11 September 2015) [“Obama Warns Russia”]. At the beginning of the crisis, the United States called on supplier countries to “voluntarily halt arms transfers to the regime.” UNSC Meeting, UN Doc S/PV.6706 (24 January 2012) at 12 [emphasis added]. In the same vein, see also the US Secretary of State’s comments on the military assistance to the Syrian Government by Russia. “Russia Warned Not to Deliver Missiles to Syria,” CBC News (31 May 2013).

⁴³ “German Chancellor Angela Merkel urged Russia on Friday to use its influence with the Syrian government to end the devastating bombardment of Aleppo, as her government opened the door to possible sanctions against Russia for its role in the conflict. In some of her harshest comments to date, Merkel said there was no basis in international law for bombing hospitals and Moscow should use its influence with Syrian President Bashar al-Assad to end the bombing of civilians.” “Germany Steps Up Pressure on Russia over Syria, Opens Door to Sanctions,” Reuters (7 October 2016).

⁴⁴ “Russia Accused of War Crimes in Syria at UN Security Council Session,” The Guardian (26 September 2016). At the UNSC meeting of 5 December 2016 (on the occasion of which draft Resolution S/2016/1026, aiming, inter alia, at stopping all attacks in the city of Aleppo, was vetoed by China and Russia and opposed also by Venezuela), the UK representative warned that “[t]he world and the Syrian people will not forget Russia’s role in carrying out, and supporting the regime in carrying out, such heinous crimes in Syria.” UNSCOR, 71st Sess, 7825th Mtg, UN Doc S/PV.7825 (2016) at 7.

⁴⁵ See, inter alia, “UAE Pounds Yemen Rebels after Coalition’s Deadliest Day,” Voice of America (5 September 2015);Google Scholar “Qatar Sends 1000 Ground Troops to Yemen Conflict: Al Jazeera,” Reuters (7 September 2015).

⁴⁶ See, inter alia, “U.S. to Expedite Munition Deliveries for Yemen Fight: Support Includes Deliveries of Precision-Guided Munitions, Intelligence and Logistical Aid,” Wall Street Journal (7 April 2015);Google Scholar “U.S. Military Planes Cleared to Refuel Saudi Jets Bombing Yemeni Targets,” Wall Street Journal (2 April 2015).

⁴⁷ For the factual background and the initial international reaction to the intervention, see Nuβberger, supra note 18 at 112–23. Karine Bannelier-Christakis reports the view according to which the intervention in question was approved or at least acquiesced in by a considerable number of states, with few critical voices. Bannelier-Christakis, Karine, “Military Interventions against ISIL in Iraq, Syria and Libya, and the Legal Basis of Consent” (2016) 29CrossRefGoogle Scholar Leiden J Intl L 743 at 749.

⁴⁸ Office of the High Commissioner for Human Rights, “Yemen: United Nations Experts Point to Possible War Crimes by Parties to the Conflict” (28 August 2018), online: <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23479&LangID=E>..>Google Scholar Among many other sources, see also, in particular, the Letter from the Panel of Experts on Yemen, which is a very impressive document, Doc S/2018/192, supra note 41. The subsequent report adopted on 27 January 2017 documented 10 strikes by the coalition resulting in “292 civilian fatalities, including at least 100 women and children.” Doc S/2018/193, supra note 41 at 45, para 120; a detailed assessment of compliance with international humanitarian law (IHL) is contained in Appendices A–D and Annex 49. On the specific subject of air strikes on hospitals, see “Yemen Conflict: MSF to Withdraw Staff from Northern Hospitals,” BBC News (18 August 2016). On 27 August 2018, the UN Committee on the Rights of the Child denounced the worst attacks on children in Yemen since 2015. UN Committee on the Rights of the Child, “UN Child Rights Committee Presses Saudi Arabia to Protect Children in Armed Conflict” (27 August 2018), online: <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23478&LangID=E>;;>Google Scholar see also Zenko, Micah, “America Is Committing War Crimes and Doesn’t Even Know Why,” Foreign Policy (15 August 2018);Google Scholar Lynch, Colum & Hudson, John, “U.N. Chief to U.S.-Backed Saudi Air Coalition: You May Be Committing War Crimes in Yemen,” Foreign Policy (8 January 2016);Google Scholar Lynch, Colum, “U.S. Support for Saudi Strikes in Yemen Raises War Crime Concerns,” Foreign Policy (15 October 2015)Google Scholar at 2 [Lynch, “U.S. Support”] (quoting Senator Patrick Leahy as saying that airstrikes might have violated US legislation barring security assistance to countries responsible for gross human rights abuses); Amnesty International, “Bombs Fall from the Sky Day and Night: Civilians under Fire in Northern Yemen” (October 2015), online: Amnesty International <https://www.amnesty.org/en/documents/mde31/2548/2015/en/>..>Google Scholar According to an independent data collection source, more than one-third of all Saudi-led air raids hit civilian targets such as schools, hospitals, and mosques. Yemen Data Project, online: <http://www.yemendataproject.org/>. The airstrike that hit a funeral hall in Sanaa, the capital of Yemen, and killed over 800 people in October 2016, a ‘double-tap’ bombing (“Thousands March in Yemen after Over 140 Killed in Airstrike,” Associated Press (9 October 2016)), was specifically documented by the panel of experts in the above-cited January 2017 report (Doc S/2018/193, supra note 41 at 46–49 and Appendix D, Annex 49). It was only following airstrikes labelled as “war crimes” that calls were made for the United States to withdraw its support to the Saudi-led coalition. See “Lawmakers Demand U.S. Do More Than Just Criticize Saudi Bombing Campaign,” Foreign Policy (10 October 2016). On the extent of arms sales and military assistance to Saudi Arabia, in the context of the conflict in Yemen, with US statutory obligations, see also the expert opinion by Michael Newton provided by the Center for Human Rights of the American Bar Association upon request of the US Congress. American Bar Association (19 May 2017), online: <https://www.americanbar.org/content/dam/aba/administrative/human_rights/ABACHRAssessmentofArmsSalestoSaudiArabia.authcheckdam.pdf>.

⁴⁹ Cooper, Helene, “U.S. Blocks Arms Sale to Saudi Arabia Amid Concerns Over Yemen War,” New York Times (13 December 2016);Google Scholar see also Rovera, Donatella, “The Human Carnage of Saudi Arabia’s War in Yemen,” Foreign Policy (26 August 2015) at 3.Google Scholar These conditions, which were only partly fulfilled by the Saudi-led coalition, were then dropped under the new US Trump administration. De Luce, Dan & Paul, McLeary, “Saudi Arms Sale Hits Possible Senate Roadblock,” Foreign Policy (7 June 2017).Google Scholar

⁵⁰ Human Rights Watch, “Yemen: US-Made Bombs Used in Unlawful Airstrikes” (8 December 2016), online: Human Rights Watch <https://www.hrw.org/news/2016/12/08/yemen-us-made-bombs-used-unlawful-airstrikes>..>Google Scholar

⁵¹ Existing export permits were temporarily revoked and no new licenses would be issued under the current circumstances. The sale of arms or ammunition by Norway to Saudi Arabia was already prohibited. See “Norway Suspends Arms Sales to UAE over Yemen War,” Reuters (3 January 2018).

⁵² “UK Accused of Blocking UN Inquiry into Claim of War Crimes in Yemen,” The Guardian (25 September 2016). The United Kingdom had actually previously admitted “that the coalition had dropped ‘a limited number’ of UK-supplied cluster munitions in Yemen.” The Saudi government then stated that it had decided to stop the use of UK-made BL-755 cluster munitions and had informed the UK government, noting, however, that unlike the United Kingdom, Saudi Arabia had not ratified the 2008 Convention on Cluster Munitions. “Yemen: Arab Coalition to Stop Using UK Cluster Bombs,” Aljazeera (20 December 2016). In March 2017, the Netherlands eventually became the first EU country to stop arms exports to Saudi Arabia. See “Revealed: The £1bn of Weapons Flowing from Europe to Middle East,” The Guardian (27 July 2016) [“Revealed: The £1bn of Weapons”]. The British High Court first ruled that UK government arms sales to Saudi Arabia were lawful. “UK Arms Sales to Saudi Arabia Ruled Lawful,” BBC News (10 July 2017). However, the House of Lords International Relations Committee subsequently stated that UK arms sales to Saudi Arabia violated international law, since British weapons were “highly likely to be the cause of significant civilian casualties” in Yemen. “UK Arms Sales to Saudi Arabia Break International Law, Say Lords,” Financial Times (16 February 2019). The Court of Appeal in London then ruled British arms sales to Saudi Arabia to be in breach of IHL on grounds that the risk to civilians in Yemen had not been properly addressed. The Queen (on the Application of Campaign against Arms Trade) v Secretary of State for International Trade, Case No T3/2017/2079 (20 June 2019), online: <www.judiciary.uk/judgments/the-queen-on-the-application-of-campaign-against-arms-trade-v-secretary-of-state-for-international-trade-and-others/>.

⁵³ In this respect, see especially Sassòli, Marco, “State Responsibility for Violations of International Humanitarian Law” (2002) 84Google Scholar Intl Rev Red Cross 401 at 401ff, 413; see also Condorelli, Luigi & De Chazournes, Laurence Boisson, “Quelques remarques à propos de l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’” in Swinarski, Christophe, ed, Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva: Springer, 1984) 17;Google Scholar Ruys, “Of Arms,” supra note 35 at 20–31.

⁵⁴ Further to the specific provisions on humanitarian assistance contained in UNSC Resolution 2216 (2015) at paras 9 and 19, the issue was also officially raised as to whether US assistance to foreign countries blocking or hindering the flow of humanitarian aid, such as Saudi Arabia in the Yemeni crisis, would violate the 1961 US Foreign Assistance Act, s 620I.a, “Legislation on Foreign Relations through 2002,” US House of Representatives and US Senate, vol I-A (2003) at 320, online: <https://www.usaid.gov/sites/default/files/documents/1868/faa.pdf> as well as IHL, even though (under subsection b. of the same provision) the US president could still make an exception and keep providing assistance if he determined that to do so would be in the national security interest of the United States. See De Luce, Dan, “Trump Nominee Concedes Saudi Siege of Yemen Could Be Violating U.S. Law,” Foreign Policy (19 December 2017);Google Scholar see also Human Rights Watch, “Yemen: Coalition Blockade Imperils Civilians” (7 December 2017), online: Human Rights Watch <https://www.hrw.org/news/2017/12/07/yemen-coalition-blockade-imperils-civilians>..>Google Scholar Colum Lynch underlines that for a country that imports more than 90 percent of its food and fuel, the blockade has been devastating. Lynch, “U.S. Support,” supra note 48 at 5.

⁵⁵ See e.g. Lieblich, supra note 39 at 68; Visser, L, “Russia’s intervention in Syria,” EJIL Talk! (25 November 2015), online: <https://www.ejiltalk.org/russias-intervention-in-syria/#more-13869>;Google Scholar cf also Grado, supra note 2 at 67–69.

⁵⁶ It was thus noted that in the early stage of the Syrian crisis the US administration “refrained from publicly pressing Russia to stop supporting” Assad’s attacks on civilians. See Roth, Kenneth, “Barack Obama’s Shaky Legacy on Human Rights,” Foreign Policy (4 January 2017)Google Scholar at 6; but cf also Miller, Aaron David, “It’s Not Obama’s Fault,” Foreign Policy (11 September 2015).Google ScholarPubMed

⁵⁷ Arms Trade Treaty, 2 April 2013, 52 ILM 988 (2013) (entered into force 24 December 2014 and ratified by 100 states at the time of writing; Canada is not among the states parties or the signatories).

⁵⁸ See, in this regard, the analysis of costs and causes of civil wars later in this article.

⁵⁹ Italian Law 185/1990, art 1, para 6.d.

⁶⁰ Council Common Position 2008/944/CFSP (8 December 2008), art 2, criterion 3: “Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts.” Both the said Italian law and the EU common position have founded an unprecedented (and still pending at the time of writing) complaint before the Italian courts, lodged against Italian officials and the local subsidiary German conglomerate Rheinmetall (RWM Italia), over their alleged involvement in the aerial bombardment of Yemen by the Saudi-led coalition. See MacAskill, Ewen, “Italian Officials and German Firm Face Legal Action over Saudi Arms Sale,” The Guardian (18 April 2018).Google Scholar Cf also Wintour, Patrick, “MPs Call for Immediate Halt of UK Arms Sales to Saudi Arabia,” The Guardian (3 February 2016).Google Scholar

⁶¹ Resolution on the Humanitarian Situation in Yemen, Doc 2016/2515(RSP) (25 February 2016) at para N.

⁶² See Doc S/2018/192, supra note 41 at 3, 25, para 85.

⁶³ Brad Roth observes that “where a contending faction — even one that obtains some level of illicit aid from abroad — manages to sustain a serious challenge notwithstanding substantial foreign assistance to the established government, or is kept at bay or crushed only with a massively disproportionate deployment of foreign supplies or logistical support, the legitimacy of that government can scarcely be regarded as unproblematic.” Roth, Governmental Illegitimacy, supra note 10 at 197.

⁶⁴ See e.g. Lieblich, supra note 39 at 156–65.

⁶⁵ See Nolte, supra note 38 paras 20, 22. In this respect, see also art 3(1) of the Institut de droit international’s resolution on “Assistance militaire sollicitée” (8 September 2011), online: <http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_10_C_fr.pdf>. In the same sense, see Henderson, Use of Force, supra note 18 at 375. Cf also the various views reported by Ruys, “Of Arms,” supra note 35 at 40–45; Hafner, supra note 2 at 242–44.

⁶⁶ International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries, UN Doc A/56/83 (10 August 2001)Google Scholar at para 9 [ARSIWA]; see also Hafner, supra note 2 at 248.

⁶⁷ See the chairman’s conclusions, based on the participants’ contributions. “Chairman’s Conclusions” (12 December 2012), point 26, online: Group of Friends of the Syrian People <http://www.mofa.go.jp/mofaj/area/syria/friends_kaigo/2012_12/pdfs/2012_12_01.pdf>. The question of sales of military equipment to Venezuela while violent clashes continued was raised in the United Kingdom at the highest political level. See Mason, Rowena, “UK Criticised over Sales of Military Equipment to Venezuela,” The Guardian (11 August 2017).Google Scholar Although only binding upon EU members states, it is nevertheless worth noting that EU Council Common Position 2008/944/CFSP, supra note 60, requires member states to assess export license applications for military technologies and equipment against respect for human rights in the country of final destination (art 2, criterion 2). Furthermore, as of 13 November 2017, the EU Council’s restrictive measures in respect of Venezuela have included an embargo on arms and on related material that might be used for internal repression.

⁶⁸ See Bannelier-Christakis, supra note 47 at 749.

⁶⁹ See the Letters to the Secretary-General and the President of the Security Council dated 26 March 2015 by Bahrain, Qatar, Saudi Arabia, the United Arab Emirates and Kuwait, UN Doc S/2015/217 (27 March 2015). In the same way, an official from the US government stated that “the United States is committed to backing the coalition war effort, which is ‘supporting the legitimate Yemeni government and defending itself from Houthi incursion into Saudi territory and missile attacks.’” De Luce, McLeary & Lynch, supra note 26 at 7. Benjamin Nuβberger, however, is of the view that the self-defence argument was used “more as a political tool than a primary legal basis.” Nuβberger, supra note 18 at 112.

⁷⁰ The first hints at crimes against humanity date as early as 25 August 2011. Briefing to the Security Council by Mr. Lynn Pascoe, Under-Secretary-General for Political Affairs (UNSCOR, 66th Sess, 6602nd Mtg, UN Doc S/PV.6602 (2011) at 5), referring to the United Nations High Commissioner for Human Rights covering events from 15 March to 15 July 2011, UN Doc A/HRC/18/53 (15 September 2011).

⁷¹ When the first important UNSC resolution on humanitarian assistance in Syria was adopted (see notes 129 and 193 below), the representative of Nigeria expressed “regret that there was no consensus on the inclusion of a paragraph in the final text calling upon all States to refrain from transferring arms to the parties in the Syrian conflict, given that such arms could be used to commit or to facilitate Syria’s violations or abuses of international human rights or humanitarian law.” UNSCOR, 69th Sess, 7116th Mtg, UN Doc S/PV.7116 (2014) at 11 [emphasis added]; see also the statements of the representative of Rwanda on the same occasion (at 12ff).

⁷² Among other countries, Argentina (UNSC meeting of 23 July 2013: “we insist that supplying weapons to the parties must stop. There is no doubt that weapons in Syria are being used to commit human rights violations and violations of international humanitarian law” (UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 15) and UNSC meeting of 20 January 2014 (UNSCOR, 69th Sess, 7096th Mtg, UN Doc S/PV.7096 (2014) at 20)); Pakistan (again at the UNSC meeting of 23 July 2013: “The Council and the international community should take steps to stop arms supplies to all sides and bring the Syrian Government and opposition representatives to Geneva for talks that will lead to a political solution and national reconciliation. … each side wants to demonstrate military superiority before moving to the negotiating table. More arms will lead only to more bloodshed, not to peace” [ibid at 20; emphasis added]); Brazil (“Brazil reiterates its repudiation of actions that further militarize the conflict in Syria. We call on all members of the international community, including members of the Security Council, to … cease arms transfers to all actors involved in the conflict. The argument that providing weapons to the parties will help reach a military balance and somehow contribute to the success of the planned Geneva conference is seriously flawed. It will only promote an arms race, which in turn will further reduce the chances of a political understanding. … Furthermore, it is clear that more weapons can sadly lead to more human rights violations. In the light of the conclusions of the Commission of Inquiry that all parties have gravely violated human rights, the protection of civilians requires fewer, not more, arms in the hands of the parties” [ibid at 33; emphasis added]).

⁷³ Such as radios, night vision goggles, first aid kits, and military ambulances. See Tamkin, Emily, De Luce, Dan & Gramer, Robbie, “Ukraine Expects Trump to Approve Arms Deliveries,” Foreign Affairs (26 October 2017);Google Scholar see also “Contemporary Practice of the United States” (2015) 109:1 Am J Intl L 174 at 179. The US policy changed under the Trump administration, when anti-tank weapons were provided to the Ukrainian government. See, inter alia, Roman, Olearchyk, “Ukraine to Deploy US Anti-Tank Missiles in Defiance of Russia,” Financial Times (1 May 2018).Google Scholar

⁷⁴ In this sense, see Erik Brattberg of the Carnegie Endowment for International Peace, quoted in Tamkin, De Luce & Gramer, supra note 73.

⁷⁵ UNSCOR, 68th Sess, 7000th Mtg, UN Doc S/PV.7000 (2013) at 4 [emphasis added]; see also the Statement by the President of the Security Council, Doc S/PRST/2012/6 (21 March 2012), point 2.

⁷⁶ “Peace and Security,” online: United Nations Security Council <https://www.un.org/sc/suborg/en/sanctions/1970/exemptions_measures/arms-embargo>.

⁷⁷ France, however, did denounce “known violations of the arms embargo imposed on Iran, with arms flowing to Syria.” UNSCOR, 67th Sess, 6706th Mtg, UN Doc S/PV.6706 (2012) at 26. A possible violation of this resolution was also advanced by Jeffrey Feltman, UN Under-Secretary-General for Political Affairs, at the UNSC meeting on 22 August 2012. UNSCOR, 67th Sess, 6824th Mtg, UN Doc S/PV.6824 (2012) at 5. Raghida Dergham observes that the UNSC too “turned a blind eye to Iran’s military role in Syria despite the fact that Syria is in violation of Resolution 1737.” Raghida Dergham, “Commentary: The Council’s Failure on Syria” in von Einsiedel, Malone & Stagno Ugarte, supra note 8, 743.

⁷⁸ On the deployment of a whole Iranian brigade in Syria, which was openly admitted by Iranian officials, see e.g. “Four Iran Army Special Forces Troops Killed in Syria: Agency,” Reuters (11 April 2016). On Iranian involvement, see also the sources quoted by Ruys, “Of Arms,” supra note 35 at 15.

⁷⁹ Resolution 1591 (2005) at para 6; see also UNSC Resolution 1556 (2005).

⁸⁰ Resolution 2138 (2014) at para 5.

⁸¹ In this respect, see Christakis, Theodore & Bannelier, Karine, “French Military Intervention in Mali: It’s Legal but … Why? Part II: Consent and UNSC Authorisation,” EJIL: Talk! (25 January 2013), online: <https://www.ejiltalk.org/author/christakisbannelier/>..>Google Scholar This was indeed one of the main arguments used by France to justify its intervention upon request in Mali (though in combination with other arguments, such as the preservation of Mali’s territorial integrity). See also Tancredi, “Sulla liceità,” supra note 37, especially at 953–55; cf also Hafner, supra note 2 at 240ff.

⁸² See especially Resolution 2249 (2015) at para 5.

⁸³ This has been the constant narrative of the Syrian authorities: “Prime Minister Wael al-Halaki said Saudi Arabia, Qatar, Turkey, Britain and France did not want a political solution to the conflict. ‘These regimes are working to escalate terrorist actions, support terrorists and destroy the cessation of hostilities agreement agreed by Russia and the United States,’ state news agency SANA quoted him as saying.” “Syrian Ministers Say Europe and Regional Powers Support Terrorists: SANA,” Reuters (21 April 2016) [“Syrian Ministers Say”].

⁸⁴ “Vladimir Putin Says Bashar al-Assad Backs Russian Support to Rebels Fighting Islamic State,” Wall Street Journal (22 October 2015); “Putin Defends Russia’s Military Assistance to Syrian Regime,” Associated Press (9 September 2015), online: <http://www.ynetnews.com>. The Russian foreign minister called on world powers to join Russia in that pursuit, arguing that Syria’s army was the most efficient force to fight the extremist network: “I can only say once again that our servicemen and military experts are there to service Russian military hardware, to assist the Syrian army in using this hardware, … [a]nd we will continue to supply it to the Syrian government in order to ensure its proper combat readiness in its fight against terrorism.” Russian Foreign Ministry spokeswoman Maria Zakharova added that Russia was not trying to conceal the presence of its servicemen, who were involved in “military-technical cooperation with a legitimate government.” See “Obama Warns Russia,” supra note 42.

⁸⁵ See Henderson, Use of Force, supra note 18 at 369.

⁸⁶ See, among other texts, Sayapin, Sergey & Tsybulenko, Evhen, eds, The Use of Force against Ukraine and International Law (The Hague: Asser Press-Springer, 2018);CrossRefGoogle Scholar Grant, Thomas D, Aggression against Ukraine: Territory, Responsibility and International Law (New York: Springer, 2015).CrossRefGoogle Scholar

⁸⁷ Whether according to the strict “effective control” criterion developed by the International Court of Justice (ICJ) in its leading judgments on the matter (Military Activities against Nicaragua and Armed Activities in the Congo, supra note 36) plus the later Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), [2007] ICJ Rep 43 at para 393, or following the less stringent “overall control” criterion elaborated by the European Court of Human Rights (see, inter alia, Ilaşcu and Others v Moldova and Russia, 48787/99, [2004] VII ECHR 318, 40 EHRR 1030 at paras 310–21) and by the International Criminal Tribunal for former Yugoslavia (see, inter alia, Tadić, supra note 11, Appeals Chamber, Judgment, 15 July 1999, at para 116 and especially para 122). On these issues, see, among many other texts, Shaw, supra note 3 at 598ff; Distefano, Giovanni & Hêche, Aymeric, “L’organe de facto dans la responsabilité internationale: curia, quo vadis?” (2015) 61Google Scholar AFDI 3; Crawford, James, State Responsibility: The General Part (Cambridge, UK: Cambridge University Press, 2013) at 124–26, 141–61;CrossRefGoogle Scholar Spinedi, Marina, Gianelli, Alessandra & Luisa Alaimo, Maria, eds, La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (Milan: Giuffrè, 2006), especially at 3–103.Google Scholar

⁸⁸ See discussion later in this article.

⁸⁹ Cf Ruys, “Of Arms,” supra note 35 at 34–36.

⁹⁰ Military Activities against Nicaragua, supra note 36 at para 205 [emphasis added].

⁹¹ United Nations General Assembly (UNGA) Res 2625, UNGAOR, 25th Sess, Supp No 28, UN Doc A/8018 (1970) 121.

⁹² Military Activities against Nicaragua, supra note 36, especially at paras 228, 241; see also Armed Activities in the Congo, supra note 36 at paras 162ff.

⁹³ Or “a corollary of the principle of the sovereign equality of States.” Military Activities against Nicaragua, supra note 36 at para 202. Cf Roth, Governmental Illegitimacy, supra note 10 at 162: “The same anti-interventionist language is reaffirmed time and again in international treaties, declarations, and resolutions”; Ruys, “Of Arms,” supra note 35 at 32.

⁹⁴ See Nowak, Christine, “The Changing Law of Non-Intervention in Civil Wars: Assessing the Production of Legality in State Practice after 2011” (2018) 5:1CrossRefGoogle Scholar J Use Force & Intl L 40 (and the relevant literature therein).

⁹⁵ Military Activities against Nicaragua, supra note 36 at para 242.

⁹⁶ However, even though the US intervention in Nicaragua was initially undisclosed, it “subsequently became the subject of specific legislative provisions and ultimately the stake in a conflict between the legislative and executive organs of the United States.” Ibid at para 95.

⁹⁷ “Yemen Rebels Say They Fired Missile at Saudi Military Camp,” New York Times (5 January 2018).

⁹⁸ See e.g. the statements by Kremlin spokesman Dmitry Peskov, quoted in “Pentagon Ramps Up Airstrikes in Syria to Help U.S.-Backed Rebels,” Los Angeles Times (3 August 2015) [“Pentagon Ramps Up Airstrikes”]. Not surprisingly, so have the Syrian authorities. See e.g. “Syrian Ministers Say,” supra note 83; Statements of Syria at the UNSC meeting on 23 April 2012, UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 27; see also Ruys, “Of Arms,” supra note 35 at 16.

⁹⁹ See, inter alia, the policy statements on the situation in Ukraine of 13 March 2014 and the speech on 18 February 2017 at the fifty-third Munich Security Conference, online: <http://www.bundesregierung.de>.

¹⁰⁰ “The Assembly urges the Russian authorities to: …10.1. cease all financial and military support to the illegal armed groups in the Donetsk and Luhansk regions.” Resolution 2198 (2018).

¹⁰¹ UNSC Resolution 2216 (2015) at paras 14ff. Interestingly, Russia was actually in favour of imposing an embargo on all parties to the conflict, including therefore Hadi’s government, not just the Houthis and their supporters. See “UN to Vote on Arms Embargo against Yemen Rebel Leaders,” New York Times (13 April 2015).

¹⁰² UNSC Resolution 1970 (2011) at para 9. On the question as to whether UNSC Resolution 1970 (2011) could be interpreted as authorizing states to provide not only humanitarian aid but also military assistance to the insurgents in order to defeat the governmental forces and thus achieve the objective of protecting the civilian population, given the authorization to take all necessary measures for that purpose “notwistanding paragraph 9” of the resolution — imposing the arms embargo (para 4 of the Resolution), see Henderson, Use of Force, supra note 18 at 139ff; Ronzitti, “NATO’s Intervention,” supra note 3 at 10. Canada proposed an arms embargo with regard to Syria but specifically in order to “increase pressure on the Al-Assad regime to end the violence and recognize the legitimate democratic rights of the Syrian people.” UNSCOR, 67th Sess, 6847th Mtg, UN Doc S/PV.6847 (2012) at 37 (Resumption 1).

¹⁰³ UNSC Resolution 1556 (2004) at paras 7–9.

¹⁰⁴ Initially, Turkey did not openly admit sending arms to Syrian rebels, to the extent that the Turkish President Erdogan filed a personal criminal complaint against the editor in chief of the newspaper Cumhuriyet for releasing “state secrets,” following a newspaper report about weapons shipments by Turkey’s espionage agency to rebels opposed to the Syrian government. A year later, on 6 May 2016, the editor in chief and another journalist were condemned to a prison sentence.

¹⁰⁵ “‘Friends of Syria’ Debate Arming Rebels,” Al Jazeera (22 June 2013).

¹⁰⁶ “US Offers ‘Military Support’ to Syrian Rebels,” Al Jazeera (14 June 2013).

¹⁰⁷ See “CIA Starts Arming Syrian Rebels Overtly,” RT (13 September 2013) online: <https://www.rt.com/usa/us-weapons-syrian-rebels-745/>; Hosenball, Mark, “Congress Secretly Approves U.S. Weapons Flow to ‘Moderate’ Syrian Rebels,” Reuters (27 January 2014).Google Scholar On the evolution of the US approach, see also “United States Recognizes Syrian Opposition as ‘Legitimate Representative of the Syrian People’, Will Provide Small Arms and Ammunition to Opposition Forces” (2013) 107:3 Am J Intl L 650 at 654.

¹⁰⁸ Formal approval by the US Congress was thus being envisaged by the US administration. “U.S. Pledge of Support for Syria’s Moderate Rebels in Early Stages — Official,” Reuters (28 May 2014). This position was officially reiterated by US President Obama in his statement of 18 September 2014 on congressional authorization to train the Syrian opposition: “These Syrian opposition forces are fighting both the brutality of ISIL terrorists and the tyranny of the Assad regime. We had already ramped up our assistance, including military assistance, to the Syrian opposition.” “Statement by the President on Congressional Authorization to Train Syrian Opposition” (2014), online: <https://obamawhitehouse.archives.gov/the-press-office/2014/09/18/statement-president-congressional-authorization-train-syrian-opposition>; see also Weizmann, Nathalie, “What Happens If American-Trained Rebels Commit War Crimes?” (2015), online: Just Security <https://www.justsecurity.org/25469/responsible-american-trained-rebels-commit-war-crimes/>.Google Scholar

¹⁰⁹ “France Armed Syria in 2012: Hollande,” Daily Star Lebanon (8 May 2015). At that time, France had actually stated that the question of arms supplies to the insurgents in Syria would be looked into as soon as the Syrian Opposition Council became the legitimate government of Syria. “Syria: France Backs Anti-Assad Coalition,” BBC News (13 November 2012); see also the Dutch government’s position at the time, cited by Ruys, “Of Arms,” supra note 35 at 36. On the provision of non-lethal aid to Syrian insurgents, cf Nowak, supra note 94 at 72–75, where she notes, inter alia, that Russia objected also to the provision of non-lethal equipment, whereas Iran and Syria condemned it in vague terms.

¹¹⁰ “UK to Send Armoured Vehicles to Syrian Opposition,” BBC News (6 March 2013).

¹¹¹ Council Common Position 2008/944/CFSP, supra note 60. On 27–28 May 2013, the EU Council (Foreign Affairs) took note of the commitment by member states to assess the export license applications on a case-by-case basis, taking full account of the criteria set out in Council Common Position 2008/944/CFSP with regard to the sale, supply, transfer, or export of military equipment for the Syrian National Coalition for Opposition and Revolutionary Forces and intended for the protection of civilians. EU Council (Foreign Affairs), Press Release, 3241st Council Meeting, Doc 9977/13 (2013) at 11–12. This was repeated in the preamble to the above-mentioned EU Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria, especially in the light of the very important third criterion laid down in art 2. In its Joint Communication of 24 June 2013 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, the high representative of the European Union for foreign affairs and security policy clarified that, as of 1 June 2013, “the possible delivery of arms to Syria (would) be subject to national policies under strict conditions as defined in the Council Declaration adopted on 27 May.” Doc JOIN(2013) 22 final (2013) at 6; cf Ruys, “Of Arms,” supra note 35 at 18–19.

¹¹² The US Senate approved the training and arming of Syrian rebels in the fight against ISIS/Daesh in September 2014. See Weisman, Jonathan & Peters, Jeremy W, “Congress Gives Final Approval to Aid Rebels in Fight with ISIS,” New York Times (18 September 2014).Google Scholar In 2015, an ambitious US and Turkish plan to train and arm a Syrian opposition force was unveiled. “Turkey, U.S. to Start Train-and-Equip Plan for Syria Rebels May 9 – Turkey,” Reuters (2 May 2015). On the US side, however, the plan to train Syrian rebels was eventually abandoned later that same year. See Shear, Michael D, Cooper, Helene & Schmitt, Eric, “Obama Administration Ends Effort to Train Syrians to Combat ISIS,” New York Times (9 October 2015).Google Scholar At this point, the United States was targeting the Islamic state and openly admitted providing weapons and equipment to Kurdish YPG militias in Syria in their fight against the former. Pursuant to the same anti-ISIS strategy, in July 2015 (two months before the Russian direct intervention in the conflict), the United States had also decided to extend air strikes against ISIS in an area about forty miles deep into Syria along a sixty-eight-mile stretch of border with Turkey, though without officially declaring the area a protected zone, a safe area or a no-fly zone. See “U.S.-Turkey Deal Aims to Create De Facto ‘Safe Zone’ in Northwest Syria,” Washington Post (26 July 2015); see also “Exclusive: U.S. Supplies Syrian Fighters Ahead of Push for Islamic State Town,” Reuters (16 December 2015); “Obama Outlines Plans to Expand U.S. Special Operations Forces in Syria,” Washington Post (25 April 2016); as well as the public statements by the US defence secretary, quoted in “U.S. Eyes Arms for YPG Fighters in Syria Even after Raqqa’s Fall,” Reuters (27 June 2017).

¹¹³ The four countries where the military training was to take place — Turkey, Jordan, Saudi Arabia and Qatar — were still focusing on ousting Syrian President Bashar al-Assad. “$500-Million Program to Train Anti-Islamic State Fighters Appears Stalled,” Los Angeles Times (4 May 2015); see also “Pentagon Ramps Up Airstrikes,” supra note 98. At the end of its term, the Obama administration was still openly considering boosting its military support in favour of moderate rebels. “Exclusive: Obama, Aides Expected to Weigh Syria Military Options on Friday,” Reuters (14 October 2016) [“Exclusive: Obama, Aides Expected”]. However, US President Trump eventually decided to end the Central Intelligence Agency’s (CIA) covert program to arm and train moderate Syrian rebels fighting the government of Bashar al-Assad. The US nevertheless continued “a Pentagon-run train-and-equip program in support of the largely Kurdish rebel force that is advancing on Islamic State strongholds.” Jaffe, Greg & Adam, Entous, “Trump Ends Covert CIA Program to Arm Anti-Assad Rebels in Syria, a Move Sought by Moscow,” Washington Post (19 July 2017).Google Scholar Indirect US support for rebels fighting mainly against Syrian government forces nonetheless seemed to continue — for example, through “new supplies of U.S.-made anti-tank missiles from states opposed to President Bashar al-Assad,” such as Saudi Arabia, Turkey, and Qatar. “Syrian Rebels Say They Receive More Weapons for Aleppo Battle,” Reuters (19 October 2015).

¹¹⁴ “There is no guarantee of success, yet enabling the moderates to fight Assad is the best way to ensure that there is never any need for the large-scale deployment of American forces as there was in Iraq.” McMulllin, Evan, “How to Turn Things Around in Syria,” Foreign Policy (31 October 2016) at 6.Google Scholar

¹¹⁵ At the UNSC meeting of 30 August 2012, South Africa considered it appropriate, “given the allegations being made, that some are arming the opposition, to ask whether arming the opposition in Syria is not indirect military intervention.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 26.

¹¹⁶ Ruys, “Of Arms,” supra note 35 at 31, concludes that “on the basis of the information publicly available, there are credible reasons to believe that various States have breached the obligation to ensure respect for (IHL) … by transferring arms to the Assad regime or to anti-government forces.”

¹¹⁷ Both the above-mentioned Arms Trade Treaty and EU law require adoption of safeguards against misuse of authorizations as well as verification of end-users and final destination of delivery. See, respectively, Arms Trade Treaty, supra note 57, art 11, “Diversion”; EU Common Position 2008/944/CFSP, supra note 60 at 5; see also the Final Declaration of the EU Council’s Meeting, reprinted in Foreign Affairs (27–28 May 2013), point 2. Thus, a team of independent investigators (from the Balkan Investigative Reporting Network and the Organised Crime and Corruption Reporting Project) pointed to arms exports from a number of Central European and Balkan countries to several Middle Eastern states being diverted to Syrian rebels failing adequate risk assessment. See “Revealed: The £1bn of Weapons,” supra note 52. The United States was accused of undermining the object and purpose of the Arms Trade Treaty, of which it is a signatory, by willingly sidestepping rigorous controls and facilitating the delivery of Eastern Europe-made weapons to Syrian rebels. See Dubin, Rhys, “The Pentagon Is Spending $2 Billion Running Soviet-Era Guns to Syrian Rebels,” Foreign Policy (12 September 2017).Google Scholar In this regard, cf also Lieblich, supra note 39 at 67–70.

¹¹⁸ “Vladimir Putin Admits: Russian Troops ‘Were in Ukraine,’” The Telegraph (17 December 2015).

¹¹⁹ See, inter alia, the statements by the Russian representative at the UNSC meeting on 21 January 2015. UNSCOR, 70th Sess, 7365th Mtg, UN Doc S/PV.7365 (2015) at 7–10.

¹²⁰ UNSCOR, 70th Sess, 7368th Mtg, UN Doc S/PV.7368 (2015) at 5.

¹²¹ President of Russia Press Release, “Vladimir Putin Answered Journalists’ Questions on the Situation in Ukraine” (4 March 2014), online: Kremlin <http://en.kremlin.ru/events/president/news/20366>.

¹²² According to the definition provided by the “Syria Action: UK Government Legal Position” (14 April 2018), online: UK Government <https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position>, the United Kingdom being one of the key states supporting the doctrine (reference to it had already been made on 29 August 2013 following the first large-scale chemical attack in Syria). See Henderson, Use of Force, supra note 18 at 403, n 154. Cf Shaw, supra note 3 at 880–82.

¹²³ See, among others, Sciso, Elena, “La crisi ucraina e l’intervento russo: profili di diritto internazionale” (2014)Google Scholar Rivista di diritto internazionale 992, especially at 1022; Tancredi, Antonello, “Crisi in Crimea, referendum ed autodeterminazione dei popoli” (2014) 8Google Scholar Diritti umani e diritto internazionale 480 at 481ff; of the numerous international institutional reports and statements on the absence of any serious form of oppression against the Russian-speaking population, see e.g. Parliamentary Assembly of the Council of Europe Resolution 2198 (2018), “Statement by the OSCE High Commissioner on National Minorities” (6 March 2014), online: Organization for Security and Cooperation in Europe <www.osce.org/hcnm/116180>; and the reports on the human rights situation in Ukraine by the Office of the United Nations High Commissioner for Human Rights, online: <http://www.ohchr.org/EN/Countries/ENACARegion/Pages/UAReports.aspx>.

¹²⁴ On this point, cf Ruys, “Of Arms,” supra note 35 at 33ff.

¹²⁵ And, indeed, this is what the above-mentioned legal position of the UK government (as well as the previous one) refers to. In this regard, cf, among others, Ronzitti, Natalino, “Impiego di armi chimiche in Siria, intervento d’umanità e responsabilità di proteggere” (2018) 101Google Scholar Rivista di diritto internazionale 851.

¹²⁶ See “Chairman’s Conclusions,” supra note 67, point 15. The meeting brought together, among various other figures, the representatives of 130 states, including sixty ministers, and of several international and regional organizations. France subsequently stated its intention to “work in coordination with the Syrian National Coalition and its assistance coordination unit to bring aid to vulnerable populations that do not have access to traditional assistance channels.” UNSCOR, 68th Sess, 6906th Mtg, UN Doc S/PV.6906 (2013) at 16.

¹²⁷ See the statements made by the United States at the UNSC meeting of 15 October 2012 (UNSCOR, 67th Sess, 6847th Mtg, UN Doc S/PV.6847 (2012) at 13; UNSCOR, 68th Sess, 6950th Mtg, UN Doc S/PV.6950 (2013) at 12) as well as the observations made by the representatives of France (at 14) and the UK (at 17ff). On the stabilization effects of humanitarian assistance, cf Martini, Shadi & Heras, Nicholas A, “The One Place in Syria That Works,”Foreign Policy (23 May 2018).Google Scholar

¹²⁸ According to the EU itself, “the biggest funder of humanitarian efforts inside Syria.” “EU Council Conclusions on an EU Strategy for Syria,” Doc 7652/17 (3 April 2017) at 5 [“EU Council Conclusions”].

¹²⁹ See, among other documents, UNSC Resolution 2139 (2014) (the first comprehensive UNSC resolution on the humanitarian situation in Syria); and the co-chairs’ declaration following the Brussels II Conference on Supporting the Future of Syria and the Region, 24–25 April 2018, hosted by the EU and co-chaired by the UN. “EU Leaders to Discuss Nominations and a New Strategic Agenda” (20–21 June 2019), press section, online: <http://www.consilium.europa.eu/en/>.

¹³⁰ Military Activities against Nicaragua, supra note 36 at paras 242–43 [emphasis added].

¹³¹ Additional Protocol II, supra note 12 [emphasis added].

¹³² See, inter alia, the statements by the representative of Russia at the UNSC meeting on 28 August 2014. UNSCOR, 69th Sess, 7253rd Mtg, UN Doc S/PV.7253 (2014) at 12ff.

¹³³ See the positions of the United States, Lithuania, and the United Kingdom on Russian “humanitarian” convoys entering Ukraine, reported in (2015) 109:1 Am J Intl L 174 at 175–85. The Ukrainian authorities insisted particularly on the said convoys actually covering the delivery of supplies, troops, mercenaries, and weapons to Eastern Ukraine (at 184).

¹³⁴ “Package of Measures for the Implementation of the Minsk Agreements” (11 February 2015) at para 7, online: <https://www.ft.com/content/21b8f98e-b2a5-11e4-b234-00144feab7de>.

¹³⁵ Ruys, “Of Arms,” supra note 35 at 52. Specifically with regard to Syria, Christine Nowak is of the view that the “occasional provision of humanitarian assistance cannot be regarded as being indicative of a changing rule of international law, but instead was a breach of the norm carried out in an act of despair. As a result, this practice strengthened the rule rather than weakening it.” Nowak, supra note 94 at 62, 65 (for the relevant literature).

¹³⁶ As noted by Nowak, supra note 94 at 63. This exception was also implied in the “Statement of the President of the UNSC,” UN Doc S/PRST/2013/15 (2 October 2013). Besides, in 2014, the UNSC eventually authorized cross-border access for aid operations by the UN humanitarian agencies and their implementing partners, irrespective of the state’s express consent and only subject to notification to the Syrian authorities. Resolution 2165 (2014), point 2. Christine Nowak underlines that “with good reason, states consider the Security Council to be the accountable forum to manage humanitarian assistance if consent is being withheld.” Nowak, supra note 94 at 65ff. In Syria, the ICRC has constantly sought the agreement of all concerned, including the government (see e.g. “Interview with Peter Mauer President of the ICRC” (2017) 99 Intl Rev Red Cross 875 at 879, online: <https://www.icrc.org/en/international-review/article/interview-peter-maurer>), whereas certain non-governmental organizations, notably Médecins Sans Frontières, have operated even without the government’s permission. See Brauman, Rony, “Médecins Sans Frontières and the ICRC: Matters of Principle” (2012) 94 Intl Rev Red Cross 1523 at 1530, online: <https://www.icrc.org/en/international-review/article/medecins-sans-frontieres-and-icrc-matters-principle>.CrossRefGoogle Scholar

¹³⁷ “Chairman’s Conclusions,” supra note 67, point 33 [emphasis added]. At the UNSC meeting of 30 August 2012, Russia stated that it could not accept “the efforts of individual States to use pseudo-humanitarian arguments to justify their financial, material, technical or logistical support to illegal armed groups. When implementing humanitarian activities, it is critical to continue to fully comply with the principles of neutrality and impartiality.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 25.

¹³⁸ See Roth, Governmental Illegitimacy, supra note 10 168–70.

¹³⁹ See, inter alia, Shaikh & Roberts, supra note 8 at 733. The call was then repeatedly reiterated, for example, by the US representative at the UNSC meeting of 23 January 2013. UNSCOR, 68th Sess, 6906th Mtg, UN Doc S/PV.6906 (2013) at 13. A similar position was echoed by the United Kingdom (at 19), which in October 2013 was affirming that “Al-Assad and his close associates with blood on their hands will have no future role to play in Syria.” UNSCOR, 68th Sess, 7047th Mtg, UN Doc S/PV.7047 (2013) at 22.

¹⁴⁰ UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 15.

¹⁴¹ UNSCOR, 66th Sess, 6636th Mtg, UN Doc S/PV.6636 (2011) at 20. Norway referred to the “discredited Syrian authorities” at the UNSC meeting on 23 April 2012. UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 15. Canada expressed the view that President Al-Assad had to “relinquish power.” UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 23. It also stated that his government had “lost legitimacy by waging a campaign of terror on the Syrian people.” UNSCOR, 67th Sess, 6816th Mtg, UN Doc S/PV.6816 (2012) at 35. See also Australia’s statements at the same meeting (at 4). At the UNSC meeting of 30 August 2012, Germany stated the following: “Our position is clear: there can be no future for President Al-Assad in a new Syria. We call on him to step aside to avoid further bloodshed.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 28.

¹⁴² “Syria: France Backs Anti-Assad Coalition,” BBC News (13 November 2012). See also the very clear statements that the representative of France had already made at the UNSC meeting of 19 July 2012: “We will continue to support the Syrian opposition on its road to a democratic transition in Syria. In every forum, France is resolved to work unceasingly with those who share its values … so that the violence perpetrated on the Syrian people can be ended, their legitimate aspirations are realised fairly and swiftly, and the perpetrators of crimes and their accomplices are brought to justice.” UNSCOR, 67th Sess, 6810th Mtg, UN Doc S/PV.6810 (2012) at 4. At the UNSC meeting of 30 August 2012, France went as far as to state its readiness to recognize a transitional government “once it is formed” and that “Mr. Assad will fall.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 15. Canada expressed its intention to engage with the Syrian opposition but stopped short of recognition. “Canada Does Not Recognize Syrian Opposition: Baird,” CTV News (16 December 2012).

¹⁴³ “Chairman’s Conclusions,” supra note 67, points 2 and 13.

¹⁴⁴ Thus France, at the UNSC meeting on 23 January 2013, again openly stated that it was helping the opposition to develop a structure and actively prepare for transition (and later reiterated that it would “continue to work on structuring the opposition,” UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 26, as did the United Kingdom at the same meeting, ibid at 27), but referred to the Syrian National Coalition as a project representing “the aspirations of the Syrian people,” rather than the Syrian people as such. UNSCOR, 68th Sess, 6906th Mtg, UN Doc S/PV.6906 (2013) at 16. At the UNSC meeting of 24 April 2013, France viewed the Syrian National Council as being engaged in establishing a government that sought to unite the various components of Syrian society. UNSCOR, 68th Sess, 6950th Mtg, UN Doc S/PV.6950 (2013) at 14. The Syrian state as such had been previously suspended from the Arab League (see, inter alia, the report in UNSCOR, 66th Sess, 6662nd Mtg, UN Doc S/PV.6662 (2011) at 4), an “unprecedented move,” due to Syria’s alleged failure to implement the Arab peace plan. Dergham, supra note 77 at 742.

¹⁴⁵ “Conclusions of the European Council” (13–14 December 2012), point 28 [emphasis added]. In its above-cited Joint Communication, Doc JOIN(2013)22 final (24 June 2013) at 4, the high representative of the European Union for foreign affairs and security policy stated that the EU should continue its engagement with the National Coalition for Syrian Revolutionary and Opposition Forces. However, the same document stigmatized the failure of Lebanon to enforce its official policy of dissociation, given the increased involvement of Hezbollah in Syria and the flow of weapons, supplies, and fighters from Lebanon in support of the Syrian opposition (at 5). Political support was nevertheless also subsequently pursued. The EU Council (Foreign Affairs), supra note 111 at 9, stated that the EU accepted the National Coalition for Syrian Revolutionary and Opposition Forces as the “legitimate representatives of the Syrian People,” and the EU Council conclusions on an EU strategy for Syria of April 2017 stated, inter alia, that the EU would continue to support the Syrian opposition. “EU Council Conclusions,” supra note 128 at 4. Furthermore, in the Joint Communication, the EU high representative for foreign affairs and security policy stated that the EU would continue to coordinate closely with the Syrian interim government, created by the Syrian National Coalition in 2013. “Elements for an EU Strategy for Syria,” supra note 28 at 13–14.

¹⁴⁶ UNSCOR, 67th Sess, 6847th Mtg, UN Doc S/PV.6847 (2012) at 14, Resumption 1. After Russian deployment of its air force, on 4 September 2015, several leaders began to soften their stance (see the Chart drawn up by the Institute for the Study of War research team (30 September 2015), online: Understanding War <http://www.understandingwar.org/backgrounder/international-community%E2%80%99s-position-syrian-president-bashar-al-assad-september-30-2015>). The Trump administration subsequently further strengthened the policy shift vis-à-vis the Syrian president; in 2017, the US representative to the UN declared that the United States was no longer prioritizing the removal of Syrian President Bashar al-Assad, which was confirmed by the US secretary of state, who stated that Assad’s long-term future would be decided by the Syrian people. “Removing Assad No Longer a Priority — US,” BBC News (30 March 2017).

¹⁴⁷ See, inter alia, the statements by the representatives of Germany, the United States, and Lebanon at the UNSC meeting of 4 May 2011. UNSCOR, 66th Sess, 6528th Mtg, UN Doc S/PV.6528 (2011) at 5, 12. For a concise reconstruction of the crisis, see Simonen, supra note 22 at 23–25.

¹⁴⁸ In this regard, see also the various sources cited by Ruys, “Of Arms,” supra note 35 at 37–40, who mentions Qatar and the League of Arab States as the most notable exceptions. Cf also Nowak, supra note 94 at 68.

¹⁴⁹ In this sense, see also Henderson, Use of Force, supra note 18 at 358, who notes that some states, like the United States, made it clear that they were not prepared to recognize the opposition as the legitimate government of Syria, while France’s recognition as the future government of Syria was (perhaps) intended to legitimize a self-determination claim.

¹⁵⁰ With regard to the recognition (as the government of Libya) of the Libyan National Transitional Council in 2011, cf Henderson, Use of Force, supra note 18 at 357.

¹⁵¹ Military Activities against Nicaragua, supra note 36 at para 205; cf Roth, Governmental Illegitimacy, supra note 10 at 166.

¹⁵² See Roth, Governmental Illegitimacy, supra note 10 at 173ff.

¹⁵³ Russia referred to the acknowledgement of the Syrian National Council in terms of a “dubious campaign to legalize structures that seek to replace the legitimate Government of Syria.” UNSCOR, 68th Sess, 6950th Mtg, UN Doc S/PV.6950 (2013) at 19; see also the earlier statements by Russia at the UNSC meeting of 21 January 2012. UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 24. On regime change, see also, inter alia, the statements by the representative of Russia at the UNSC meetings on 4 October 2011 and 22 February 2014. UNSCOR, 66th Sess, 6627th Mtg, UN Doc S/PV.6627 (2011) at 5; UNSCOR, 69th Sess, 7116th Mtg, UN Doc S/PV.7116 (2014) at 7.

¹⁵⁴ See the initial statements on Syria by the representative of China on 30 June 2011 (UNSCOR, 66th Sess, 6572nd Mtg, UN Doc S/PV.6572 (2011) at 5) and the later statements against any forcible attempt to push for regime change on 31 January 2012 and 12 March 2012 (UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 25; UNSCOR, 67th Sess, 6734th Mtg, UN Doc S/PV.6734 (2012) at 20, where China stressed that “(n)o Chinese self-interests are involved on the issue of Syria”). UNSCOR, 67th Sess, 6810th Mtg, UN Doc S/PV.6810 (2012) at 13.

¹⁵⁵ See the statements on Syria by the representative of India at the UNSC meeting on 4 October 2011 (UNSCOR, 66th Sess, 6627th Mtg, UN Doc S/PV.6627 (2011) at 6) and by South Africa at the UNSC meeting on 24 January 2012 (UNSCOR, 67th Sess, 6706th Mtg, UN Doc S/PV.6706 (2012) at 29); see also UNSCOR, 67th Sess, 6711st Mtg, UN Doc S/PV.6711 (2012) at 11. At the UNSC meeting of 30 August 2012, South Africa subsequently affirmed its hope “that humanitarian and protection of civilians pretexts will not be used to effect regime change in Syria, at least not in the name of the Security Council.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 26. Officially, Qatar stated that it was not after regime change in Syria (UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 5), although it later became one of the main providers of financial, logistic, and military support to Syrian insurgents. Mazzetti, Mark, John Chivers, Christopher & Schmitt, Eric, “Taking Outsize Role in Syria, Qatar Funnels Arms to Rebels,” New York Times (29 June 2013).Google Scholar Regime change in Syria was also ruled out by the secretary-general of the League of Arab States at the UNSC meeting of 31 January 2012: “[T]he road map adopted on 22 January can in no way be interpreted as calling on the Syrian President to renounce power.” UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 9.

¹⁵⁶ UNSC Resolution 2042 (2012), point 1; see also, in this respect, UNSC Resolution 2118 (2013), point 16; UNSC Resolution 2139 (2014), point 15.

¹⁵⁷ Including such prominent international community representatives as the secretaries-general of the UN and the League of Arab States, the ministers for foreign affairs of China, France, the Russian Federation, the United Kingdom, the United States, Turkey, Iraq (chair of the Summit of the League of Arab States), Kuwait (chair of the Council of Foreign Ministers of the League of Arab States), and Qatar (chair of the Arab Follow-up Committee on Syria of the League of Arab States), and the high representative of the European Union for foreign affairs and security policy.

¹⁵⁸ UN Doc S/RES/2118 (2013), Annex II.

¹⁵⁹ See, among many other observations, the “Statement of the President of the UNSC,” supra note 136, and the co-chairs’ declaration following the Brussels II Conference on Supporting the Future of Syria and the Region, 24–25 April 2018, hosted by the EU and co-chaired by the UN, online: <http://www.consilium.europa.eu/en/> (press section at point 7). The UNSC was also actively involved in the transitional process in Yemen before the situation worsened again. See, in particular, UNSC Resolution 2140 (2014), in which the UNSC reaffirmed “the need for the full and timely implementation of the political transition following the comprehensive National Dialogue Conference” (at para 1), expressed “strong support for completing the next steps of the transition, in line with the Implementation Mechanism, including: (a) drafting a new constitution in Yemen; … (d) state structure reform to prepare Yemen for the transition from a unitary to a federal state” (at para 2), called upon the Houthi movement, among other things, “to constructively partake and to reject the use of violence to achieve political aims” (at para 3), and decided on targeted sanctions against “individuals or entities designated … as engaging in or providing support for acts that threaten the peace, security or stability of Yemen” (at para 17).

¹⁶⁰ This and other similar cases are analyzed by Roth, Governmental Illegitimacy, supra note 10, in particular at 318–22, 416–18.

¹⁶¹ In this sense, see also Henderson, Use of Force, supra note 18 at 358ff. Katariina Simonen, however, observes that “a regime change is an extreme measure in international law, and it is extremely doubtful whether the Security Council could even mandate such a measure.” Simonen, supra note 22 at 435. Ruys, “Of Arms,” supra note 35 at 50, and Stefan Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People” (2013) 12:2 Chinese J Intl L 219 at 248, are of the view that political/moral support, including forms of recognition not amounting to recognition as the legitimate government and unaccompanied by military or other assistance, would not qualify as a coercive act infringing the non-intervention principle.

¹⁶² See discussion later in this article.

¹⁶³ The most abused exception to the prohibition of intervention, according to Gray, Christine, International Law and the Use of Force, 3rd ed (Oxford: Oxford University Press, 2008) at 92.Google Scholar

¹⁶⁴ Christine Nowak observes that “it is increasingly difficult to accurately draw the line between an unfriendly but legal interference and an unlawful intervention. States are increasingly creating exceptions. … Most noticeably, these creative exceptions tailored especially for a specific time and context have fallen into disuse in similar and comparable situations.” Nowak, supra note 94 at 75.

¹⁶⁵ Indeed, three different approaches emerge from the literature: the negative equality principle (prohibition to support any side during a civil war; see also note 229 below), a purpose-based approach (admissibility of an intervention on behalf of the government if the purpose is lawful and it does not violate the principle of self-determination), and counter-intervention, which will be discussed shortly. See Henderson, Use of Force, supra note 18 at 360–70; cf also Nuβberger, supra note 18 at 130ff.

¹⁶⁶ Cf, however, Carlo Focarelli: “The temptation either to call for a ‘rationalization’ … or to conclude that international law is anything but a ‘system’ is strong but has to be resisted. While international law is to some extent a puzzle, it embodies and reflects the international community as it is. Contrary to a widespread idea, law may work even in a fragmented condition, and sometimes it works precisely because of fragmentation (faithfully mirroring the international community and its real conflicting interests and views), the alternative being no rules at all.” Focarelli, Carlo, International Law as Social Construct: The Struggle for Global Justice (Oxford: Oxford University Press, 2012) at 461.CrossRefGoogle Scholar Nonetheless, in the area of civil wars and foreign interventions, fragmentation (in the legal dimension as well as in the field) can hardly represent a satisfactory perspective, given the dramatic consequences it leads to.

¹⁶⁷ In this respect, see Fleck, Dieter, “The Law of Non-International Armed Conflict” in Fleck, Dieter, ed, The Handbook of International Humanitarian Law, 3rd ed (Oxford: Oxford University Press, 2013) 581Google Scholar at 585ff; Sivakumaran, supra note 2 at 242–46. This trend has also emerged in practice. See e.g. “Statement of the President of the UNSC,” supra note 136 at 2.

¹⁶⁸ See discussion later in this article.

¹⁶⁹ See, in particular, UNSC Resolution 2139 (2014) on the humanitarian situation in Syria.

¹⁷⁰ In this regard, see Lieblich, supra note 39 at 172–79, who observes that “it seems that collective opinio juris has elevated … the principle of protection of civilians to the same plateau as basic principles of international law such as sovereignty, territorial integrity, non-intervention and the prohibition of the use of force, effectively complementing and redefining them” (at 178).

¹⁷¹ An in-depth study conducted by the ICRC highlights how the widespread availability of weapons, particularly small arms and light weapons, can be a major factor facilitating the proliferation of violations of IHL and aggravating the plight of civilians during and after armed conflict. “Arms Availability and the Situation of Civilians in Armed Conflict” (1999), online: <https://www.icrc.org/en/doc/resources/documents/publication/p0734.htm>. On the “responsibility to protect” principle, see discussion later in this article.

¹⁷² Kalyvas, Stathis N, The Logic of Violence in Civil War (Cambridge, UK: Cambridge University Press, 2006);CrossRefGoogle Scholar the author looks into the reasons for such brutalization (at 20 in fine, 55ff); indiscriminate violence is also investigated (at 146ff).

¹⁷³ Ibid at 82.

¹⁷⁴ Kennan, George, American Diplomacy, 1900–1950 (Chicago: University of Chicago Press, 1951),Google Scholar among others, quoted by Kalyvas, supra note 172 at 389. In several civil conflicts independent observers found that any right cause or ideal had been overwhelmed by years of brutalizing violence, with most of the civilian population simply seeking survival (at 117). The fragmentation of the conflict in Yemen at the end of 2018 had little to do with the relatively clearer context existing at the time when the Saudi-led coalition began its armed intervention.

¹⁷⁵ Caryl, supra note 4 at 1. Cf also Charles Lister: “After six years of conflict, Syria and its people have been completely transformed. … [I]t is impossible to ignore how the brutal and protracted war has instilled deep divisions in a once-cohesive society. … [T]he sectarian dynamic that was once supported only by extremist fringes has started to decisively shape the mainstream opposition.” Charles Lister, “Al Qaeda Is Starting to Swallow the Syrian Opposition” Foreign Policy (15 March 2017) at 1. It is also worth recalling the case of Salwa Bugaighis, a human rights lawyer from Benghazi and one of the moderate protagonists of the 2011 uprising in Libya, assassinated in 2014. See “Salwa Bugaighis, Libyan Human Rights Activist, Shot Dead in Benghazi,” The Guardian (26 June 2014).

¹⁷⁶ Kalyvas, supra note 172 at 35.

¹⁷⁷ On the economic impact of civil wars, see, in particular, the comprehensive study by Stefano Costalli, Luigi Moretti & Costantino Pischedda, “The Economic Costs of Civil Wars: Synthetic Counterfactual Evidence and the Effects of Ethnic Fractionalization” (2017) 54 Journal of Peace Research 80. Adam Roberts observes that “postconflict reconstruction of damaged societies is a fearsomely difficult task.” Adam Roberts, “The Use of Force: A System of Selective Security” in Einsiedel, Malone & Stagno Ugarte, supra note 8, 349 at 353.

¹⁷⁸ “As we have seen elsewhere in the region, once this cycle has begun it is very hard to bring it to an end.” Salisbury, Peter, “Is Yemen Becoming the Next Syria?” Foreign Policy (6 March2015) at 4.Google Scholar According to a 2016 US State Department report on terrorism, “(b)ecause of the instability and violence in Yemen, the internationally recognized government under Hadi cannot effectively enforce counterterrorism measures. A large security vacuum persists, which gives AQAP (al-Qa’ida in the Arabian Peninsula) and ISIS-Y more room in which to operate. … AQAP has managed to exacerbate the effects of the conflict, fighting against the Houthi-Saleh alliance, while at the same time working to prevent Hadi’s government from consolidating control over southern governorates.” US State Department, “Country Reports on Terrorism 2016” (July 2017) at 232 online: US State Department <https://www.state.gov/documents/organization/272488.pdf>..>Google Scholar

¹⁷⁹ As stated by Mark Lowcock, UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator at the UNSC meeting on 23 October 2018. UNSCOR, 73rd Sess, 8379th Mtg, UN Doc S/PV.8379 (2018) at 2–4. In the Letter dated 22 January 2016 from the Panel of Experts on Yemen established pursuant to Security Council Resolution 2206 (2015) addressed to the President of the Security Council, containing their final report pursuant to the said Resolution, the Experts highlighted the “catastrophic economic situation” resulting from the war. Doc S/2018/192, supra note 41. See also, among many other documents, “Yemen Edging Nearer Famine as War, ‘Shredded Economy’ Take Toll: U.N. Official,” Reuters (16 December 2016); United Nations Office for the Coordination of Humanitarian Affairs, “Crisis Overview” (2017), online: UNOCHA <http://www.unocha.org/yemen/about-ocha-yemen>;;>Google Scholar Faite, Alexandre (Head of delegation for the ICRC in Sanaa, Yemen), “The Human Toll of Yemen’s Unending War,” Foreign Policy (20 July 2017), online: <http://features.foreignpolicy.com/07-20-2017-the-human-toll-of-yemens-unending-war-cholera-icrc/>.Google Scholar “(T)he armed intervention led by Riyadh has turned into a quagmire and has left thousands of dead and injured civilians in its wake. Interviews with current and former U.S. government officials paint a picture of a counterproductive war effort that threatens to introduce more instability in the Middle East while also aggravating the U.S.-Saudi alliance.” De Luce, McLeary & Lynch, supra note 26 at 1.

¹⁸⁰ See, inter alia, ICRC, “Conflict in Syria” (2017) 90:906 Intl Rev Red Cross, online: ICRC <https://www.icrc.org/en/international-review/conflict-syria>, as well as the assessment provided by the EU high representative for foreign affairs and security policy in “Elements for an EU Strategy for Syria,” supra note 28 at 4; the assessments by the World Bank, “The World Bank in Syrian Arab Republic” (2017), online: <https://www.worldbank.org/en/country/syria/overview>; the latest report byHuman Rights Watch, 2019 Human Rights Watch, “Syria Events of 2018” (2019), online: <https://www.hrw.org/world-report/2019/country-chapters/syria>. Cf also.+Cf+also>Google Scholar Specia, Megan, “How Syria’s Death Toll Is Lost in the Fog of War,” New York Times (13 April 2018).Google Scholar Based on the estimate by most international experts of over 500,000 deaths, Specia reckons that “around 2.33 percent of Syria’s prewar population of 22 million has been killed.”

¹⁸¹ See ICRC, “Ukraine Conflict (2014–2018),” online: <https://www.icrc.org/en/where-we-work/europe-central-asia/ukraine/ukraine-conflict>,,>Google Scholar among other sources. Cf also MacKinnon, Amy, “Counting the Dead in Europe’s Forgotten War,” Foreign Policy (25 October 2018).Google Scholar

¹⁸² Several sources have documented the dire consequences of the war and the terribly high costs for the population and the country (see, inter alia, Human Rights Watch, “South Sudan Events of 2018” (2019), online: <https://www.hrw.org/world-report/2019/country-chapters/south-sudan>).).>Google Scholar

¹⁸³ At the UNSC meeting of 28 July 2011, the representative of South Africa had (rather prophetically) warned that “action focused on the military solution … has worked to destabilize the country even further, and therefore the long-term security and stability of Libya remain uncertain as the situation deteriorates, with more loss of civilian lives and massive destruction of infrastructure.” UNSCOR, 66th Sess, 6595th Mtg, UN Doc S/PV.6595 (2011) at 4.

¹⁸⁴ As to the conflict in Yemen, see, inter alia, Doc S/2018/192, supra note 41 at 38, para 133; Amnesty International, “‘Where Is My Father?’: Detention and Disappearance in Huthi-controlled Yemen” (18 May 2016), online: Amnesty International <https://www.amnesty.org/en/documents/mde31/4006/2016/en/>;;>Google Scholar Human Rights Watch, “Yemen: Houthi Strike on Saudi Airport Likely War Crime” (7 November 2017), online: Human Rights Watch <https://www.hrw.org/news/2017/11/07/yemen-houthi-strike-saudi-airport-likely-war-crime>..>Google Scholar As to Syria, in its report published on 5 February 2013, the independent international commission of inquiry of the Human Rights Council concluded that both government and opposition forces had become increasingly violent and reckless with human life, although it conceded that the scale of the abuses committed by the government side significantly exceeded those of the opposition. “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic”, Doc A/HRC/22/59 (5 February 2013); see also, inter alia, the statements by Ivan Šimonović, UN Assistant Secretary-General for Human Rights at the UNSC meeting on 16 July 2013. UNSCOR, 68th Sess, 7000th Mtg, UN Doc S/PV.7000 (2013) at 6. At the UNSC meeting of 23 July 2013, the EU speaker expressed concern “over the involvement of extremist and foreign non-State actors in the fighting in Syria on all warring sides.” UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 36.

¹⁸⁵ As early as the UNSC meeting of 19 December 2012, Jeffrey Feltman, UN Under-Secretary-General for Political Affairs, had warned that “the military approach pursued by both sides in Syria comes at a devastating cost in terms of human lives and destruction, and it breeds a serious risk of sectarian and communal strife, radicalization and terrorism. If nothing is done to change the current dynamic and to move toward a political solution, the destruction of Syria will be the likely outcome.” UNSCOR, 67th Sess, 6894th Mtg, UN Doc S/PV.6894 (2012) at 5.

¹⁸⁶ On Yemen, in particular, see, among other authors, Salisbury, supra note 178.

¹⁸⁷ See, inter alia, Howard, Lise Morié & Stark, Alexandra, “Why Civil Wars Are Lasting Longer,” Foreign Affairs (27 February 2018), online: <https://www.foreignaffairs.com/articles/syria/2018-02-27/why-civil-wars-are-lasting-longer>;Google Scholar Regan, Patrick M & Aydin, Aysegul, “Diplomacy and Other Forms of Intervention in Civil Wars” (2006) 50 J Conflict Resolution 736;CrossRefGoogle Scholar Regan, Patrick M, “Third-Party Interventions and the Duration of Intrastate Conflicts” (2002) 46:1CrossRefGoogle Scholar J Conflict Resolution 55. Although the United Kingdom later sided with the insurgents, at the beginning of the Syrian crisis, the UK representative at the UNSC had actually pointed the finger at the flow of arms pouring into Syria: “[W]e are concerned about the supply of weapons into Syria – whether sales to the Government or illegal smuggling to the regime or the opposition. … It is glaringly obvious that transferring weapons into a volatile and violent situation is irresponsible and will only fuel the bloodshed.” UNSCOR, 67th Sess, 6706th Mtg, UN Doc S/PV.6706 (2012) at 17 [emphasis added]; cf also Ruys, “Of Arms,” supra note 35 at 53.

¹⁸⁸ See Kim, Sang Ki, “Third-Party Intervention in Civil Wars and the Prospects for Postwar Development” (2015) 61:3CrossRefGoogle Scholar J Conflict Resolution 615. This aspect also emerges indirectly from the document on EU–Syria strategy dated 3 April 2017, one feature of the strategy being the EU’s position that “(s)pecial responsibility for the costs of reconstruction should also be taken by those who have fuelled the conflict.” See “Council Adopts EU strategy on Syria,” Council Press Release 180/17 (3 April 2017) at para 4; cf Blockmans, Steven, “In Search of a Role to Play: The EU and the War in Syria” (2017) 2:1Google Scholar European Papers 9 at 9.

¹⁸⁹ See discussion earlier in this article.

¹⁹⁰ See, in particular, UNSC Resolution 2051 (2012), inter alia, calling upon “all sides in Yemen immediately to reject the use of violence to achieve political goals” (at para 2).

¹⁹¹ Salisbury, supra note 178 at 1ff [emphasis added]. On the impact of Saudi intervention in the Yemeni conflict, cf Ibrahim, Arwa, “Analysis: Yemen, a Nation Destroyed by Bin Salman’s Aggression,” Middle East Eye (22 June 2017).Google Scholar In September 2013, Yemen was still defined as “the only peaceful country in negotiated transition among those of the Arab Spring.” Jamal Benomar, Special Adviser to the Secretary-General on Yemen, UNSCOR, 68th Sess, 7037th Mtg, UN Doc S/PV.7037 (2013) at 5.

¹⁹² As early as 2012, Jamal Benomar, Special Adviser to the UN Secretary-General for Yemen, had warned that the country remained “awash with arms, with new shipments still reportedly coming in.” UNSCOR, 67th Sess, 6878th Mtg, UN Doc S/PV.6878 (2012) at 3. In 2016, the European Parliament called for an initiative to bring in an EU arms embargo against Saudi Arabia. Resolution on the Humanitarian Situation in Yemen, supra note 61 at para 7.

¹⁹³ At the UNSC meeting of 23 January 2013, Robert Serry, special coordinator of the Middle East Peace Process and Personal Representative of the Secretary-General to the Palestine Liberation Organization and the Palestinian Authority, quoted the Secretary-General and the joint special representative for Syria as expressing their “deep disappointment and anguish at the appalling levels of killing and destruction carried out by both the Government and the opposition, fueled by outside Powers providing weaponry to both sides.” UNSCOR, 68th Sess, 6906th Mtg, UN Doc S/PV.6906 (2013) at 5. At the UNSC meeting of 23 July 2013, India stressed that any “further militarization will only exacerbate the conflict and must be avoided by all parties concerned, internal as well as external.” UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 57. At the UNSC meeting of 15 October 2012, Brazil stated that “[a]rmed opposition groups, especially those that increasingly rely on foreign military and logistical support, have only added to the scope of the Syrian tragedy.” UNSCOR, 67th Sess, 6847th Mtg, UN Doc S/PV.6847 (2012) at 35. At the UNSC meeting of 22 February 2014, concerning the adoption of the first UNSC resolution on humanitarian assistance in Syria (see notes 70 and 128 above), Rwanda expressed its “regret that the important amendments on the responsibility of States that are supplying weapons to the Syrian parties were not included in the final version of the resolution” and underlined the grave concern at the negative impact of the transfer and use of weapons in Syria, in that the increased arms transfers to all parties hurt the prospect of a political settlement to the conflict. UNSCOR, 69th Sess, 7116th Mtg, UN Doc S/PV.7116 (2014) at 12ff. At the UNSC meeting of 30 August 2012, the UN deputy secretary-general stated that “Syrians need fewer weapons, not more. Those who supply the Government or the armed opposition with weapons, equipment or money are creating a vicious circle of violence and are paving the way for more suffering and chaos.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 3.

¹⁹⁴ “External aid to rebel groups may help states meet their foreign policy objectives, but it fundamentally changes the incentives facing rebel leaders and foot soldiers within a conflict. Flows of foreign resources in Mozambique, Sierra Leone, Liberia, and the Democratic Republic of the Congo enabled the growth of movements with little or no interest in political or economic change. A similar danger presents itself whenever and wherever foreign governments finance rebellion and back that support up with military assistance.” Jeremy M Weinstein, Inside Rebellion: The Politics of Insurgent Violence (Cambridge, UK: Cambridge University Press, 2007) at 342ff.

¹⁹⁵ According to a 2016 report by the International Peace Institute, although “[t]he conflict in Syria has proven particularly resistant to mediation,” the last obvious opportunity for mediation, when violence was still somewhat contained, was Kofi Annan’s mediation of 23 February–2 August 2012. However, “[t]he regime, made up of hardened Machiavellians, has been prepared to do whatever necessary to survive, whatever the cost to the country,” “[t]he opposition has contributed to the intractability of the conflict through its maximalist demands for the ‘fall of the regime,’ its ‘rush to confrontation’ when the regime still retained significant support, its unrealistic expectation of a NATO intervention” and the fact that “[b]ehind the opposition’s intransigence was that of the regional powers that gave it the resources and encouragement to continue the fight.” Hinnebusch, Raymond et al, “UN Mediation in the Syrian Crisis: From Kofi Annan to Lakhdar Brahimi” (New York: International Peace Institute, March 2016) at 4–5,Google Scholar 11 [“UN Mediation in the Syrian Crisis”]. In this regard, see also Shaikh & Roberts, supra note 8 at 720. At the UNSC meeting of 25 March 2013, Robert Serry, special coordinator for the Middle East peace process and personal representative of the Secretary-General, noted the “continuing pursuit of a military victory by both sides, and their reckless disregard for civilian lives” and observed that prospects for a political solution in Syria would remain slim unless the parties abandoned violence and instead committed to a political solution. UNSCOR, 68th Sess, 6940th Mtg, UN Doc S/PV.6940 (2013) at 4. At the UNSC meeting of 19 July 2012, India (as did Colombia) stigmatized the fact that all parties continued to pursue a military approach; South Africa observed that “where the international community, including the Security Council, has preferred one side over the other, such bias has resulted in the polarization of the conflict. This is especially true for such fractious societies as Syria.” UNSCOR, 67th Sess, 6810th Mtg, UN Doc S/PV.6810 (2012) at 7, 12, 14. Mary Ellen O’Connell underlines the contrast with the handling of the crisis in Ukraine, in the context of which France and Germany put a great deal of pressure on Ukraine to make concessions for the sake of peace. Ellen O’Connell, Mary, “Europe and Syria: Diplomacy, Law and War” (2017) 2:1Google Scholar European Papers 15 at 19.

¹⁹⁶ Bearing in mind the turn in favour of the insurgency that international intervention in Libya was taking (cf, inter alia, the statements by the UN under-secretary-general for political affairs at the UNSC meeting on 27 June 2011, UNSCOR, 66th Sess, 6566th Mtg, UN Doc S/PV.6566 (2011) at 2), it is worth noting that the position of the insurgent provisional authority (the Transitional National Council (TNC)) hardened; at the UNSC meeting of 3 May 2011, it was reported that the TNC had declared that a ceasefire would not be sufficient to end the conflict in Libya if it was not directly linked to the departure of Colonel Al-Qadhafi and his family (UNSCOR, 66th Sess, 6527th Mtg, UN Doc S/PV.6527 (2011) at 4); this in spite of the UNSC’s calls for a ceasefire (see note 203 below) and the fact, also reported to the UNSC on 9 May 2011, that Valerie Amos, under-secretary-general for humanitarian affairs and emergency relief coordinator, had reached an agreement with the Libyan authorities in Tripoli on the establishment of a UN humanitarian presence in Tripoli (UNSCOR, 66th Sess, 6530th Mtg, UN Doc S/PV.6530 (2011)). Natalino Ronzitti reports that “[t]he South African President, Jacob Zuma, made several attempts to mediate, proposing as a starting point a cease-fire and the opening of humanitarian corridors. His proposals were rejected by rebels, however, while they were in principle favored by Gaddafi.” Ronzitti, “NATO’s Intervention,” supra note 3 at 17.

¹⁹⁷ In this respect, see the March 2016 report by Hinnebusch et al, supra note 195 at 11.

¹⁹⁸ With regard to the case of Syria, reference has been made to “a sense of betrayal among moderate rebels who feel Obama encouraged their uprising by calling for Assad to go but then abandoned them, failing even to enforce his own ‘red line’ against Syria’s use of chemical weapons.” “Exclusive: Obama, Aides Expected,” supra note 113. Simpson, Emile, “Stop the Hand-Wringing about Aleppo,” Foreign Policy (19 December 2016) at 4:Google Scholar “Although the West is not responsible for the atrocities in Aleppo, we are morally responsible for giving false hope to the rebels since 2011, when we offered them rhetorical and, later, material support but did not have the will to back them with our own troops. Act decisively. Or stay out.” According to Nikolaos Van Dam, “[n]or did the West’s military support for the Syrian opposition ever match its rhetoric, thus dangerously inflating the opposition’s expectations. The opposition was never given sufficient military support to bring the regime to its knees, even when such military pressure would have been necessary to achieve the political solution the West claimed it wanted.” Van Dam, Nikolaos, “What the West Got Wrong in Syria,” Foreign Policy (22 August 2017) at 2.Google Scholar Salman Shaikh and Amanda Roberts consider that “[b]y coming out so early in the conflict with a demand for Assad’s ouster without any substantial investment in the opposition, the United States arguably contributed greatly to the stalemate.” Shaikh & Roberts, supra note 8 at 733.

¹⁹⁹ “[L]a violation du principe de la non-intervention en faveur d’une partie à la guerre civile mène souvent, en pratique, à l’ingérence en faveur de la partie opposée … [T]oute guerre civile peut affecter les intérêts d’autres Etats et est donc susceptible de se transformer en conflit international si des obligations très rigoureuses de non-intervention ne sont prévues.” Institut de droit international Resolution, supra note 13, preamble.

²⁰⁰ See Roth, Governmental Illegitimacy, supra note 10 at 178ff; Cullen, supra note 11 at 22ff. On the law of neutrality in general, see Michael Bothe, “The Law of Neutrality” in Fleck, supra note 167, 549. The law of neutrality requires the existence of an international armed conflict. There is no neutrality in relation to internal armed conflicts (at 557), except where there is formal recognition of belligerency of the insurgents by third states (Convention on Duties and Rights of States in the Event of Civil Strife, 20 February 1928, OAS TS 7 (entered into force 21 May 1929), art 1, para 3). Canada did not participate in any of the Pan American Conferences that adopted this and other pre-Second World War pan-American treaties. Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife, 1 May 1957, UNTS 4138 (entered into force 12 September 1957; Canada has neither ratified nor signed), art 2. In this regard, see also Ronzitti, “NATO’s Intervention,” supra note 3 at 16.

²⁰¹ Jean-Yves De Cara refers to the Institut de droit international Resolution, supra note 13, in terms of de lege ferenda. See De Cara, supra note 31 at 23ff, also on the drafting of this resolution.

²⁰² See e.g. UNSC Resolution 2406 (2018) on South Sudan (at para 1); UNSC Resolution 2216 (2015) on Yemen (at para 6); the African Union on the Libyan crisis (Assembly of the Union, 17th Session 30 June–1 July 2011, Decision on the Report of the Peace and Security Council on Its Activities and the State of Peace and Security in Africa, Assembly/AU/Dec.369 (XVII), at 7, para 27); the Secretary-General of the League of Arab States at the beginning of the Syrian crisis, speaking before the UNSC on 31 January 2012 (UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 6, 8); Guatemala, Portugal, China, Togo, India, and South Africa on Syria at the UNSC meeting of 31 January 2012 (UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 18–19, 25, 27–28, 30). The above-cited EU Council conclusions on an EU strategy for Syria of April 2017 state that “[t]he EU firmly believes that there can be no military solution to the conflict.” “EU Council Conclusions,” supra note 128 at 3.

²⁰³ The idea of de-escalation, in the context of the Syrian crisis, goes in the same direction and has actually been frequently present in UNSC practice. It had already been expressed in the first UNSC presidential statement on Syria calling for the end of violence and utmost restraint on all sides. “UNSC Presidential Statement on Syria,” UN Doc S/PRST/2011/16 (2011). It was then explicitly invoked by some of the UNSC members when the first resolution on the Syrian crisis was adopted on 14 April 2012 and was implicitly embodied in the latter resolution: both the resolution itself and the six-point proposal (which the resolution endorsed) of the Joint Special Envoy of the UN and the League of Arab States called upon all parties, including the opposition, to cease all armed violence in all its forms (see also the statements by Morocco at the UNSC meeting of 21 April 2012, calling on all parties to commit to a full cessation of violence (UNSCOR, 67th Sess, 6756th Mtg, UN Doc S.PV/6756 (2012) at 5); by Japan, Brazil, and Canada at the UNSC meeting of 23 April 2012 (UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 4, 6, 22); by the Republic of Korea at the UNSC meeting of 23 July 2013 (UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 19): “The militarization of the conflict in Syria will only accelerate the killings and violence and the emergence of Al-Qaida-linked groups”). Too bad that an actual plan seemingly echoing this idea began to be implemented only in May 2017, outside the framework of the UNSC and involving worrying arrangements providing for the transfer of thousands of refugees into rebel-held areas. “Truce Goes into Effect in Another Syria ‘Safe Zone,’” Washington Post (3 August 2017). The difference is that implementation of the idea of de-escalation began only when the war had already wreaked havoc. It is a very different matter to try to freeze, or minimize, the conflict before it escalates and leads to disastrous and most likely irreversible consequences. De-escalation was likewise repeatedly advocated in the case of Ukraine. See e.g. UNSCOR, 69th Sess, 7253rd Mtg, UN Doc S/PV.7253 (2014). De-escalation through a ceasefire was also advocated in the first phase of the international intervention in Libya. See, inter alia, the statements by the representative of China at the UNSC meeting of 4 May 2011 (UNSCOR, 66th Sess, 6528th Mtg, UN Doc S/PV.6528 (2011) at 10); the UN special envoy to Libya: “A ceasefire must be declared either formally or, in a first step, as part of an informal understanding between the opposing forces in Libya” (UNSCOR, 66th Sess, 6527th Mtg, UN Doc S/PV.6527 (2011) at 5); the UN Secretary-General (UNSCOR, 66th Sess, 6541^st Mtg, UN Doc S/PV.6541 (2011) at 3); the African Union Ad Hoc High-Level Committee on Libya with a view to implementing the African Union road map and ending the crisis in cooperation with both the Libyan authorities and the representatives of the TNC (UNSCOR, 66th Sess, 6555th Mtg, UN Doc S/PV.6555 (2011) at 3–5); South Africa (UNSCOR, 66th Sess, 6566th Mtg, UN Doc S/PV.6566 (2011) at 4).

²⁰⁴ See Roth, Governmental Illegitimacy, supra note 10 at 166ff, 411.

²⁰⁵ A number of scholars have highlighted the harmful consequences of some prominent cases of externally sponsored/fostered regime change. See e.g. Walt, Stephen M, “The Art of the Regime Change,” Foreign Policy (8 May 2018);Google Scholar cf also Reisman, W Michael, “Why Regime Change Is (Almost Always) a Bad Idea” (2004) 98:3CrossRefGoogle Scholar Am J Intl L 516, who safeguards the possibility of a strategy of unilateral regime change as an extraordinary remedy when the formal international system cannot operate (at 521), but proposes ten guidelines, the first of which is that “[a]s much international organizational support should be gained as possible” (!) (at 524) and, nevertheless, concludes that, “in each context, let the strongest and best-intentioned government contemplating or being pressed to undertake regime change remember that not everything noble is lawful; not everything noble and lawful is feasible; and not everything noble, lawful, and feasible is wise” (at 525). Roth, Governmental Illegitimacy, supra note 10 at 163, observes that “history arguably teaches that foreign intervention (whether by armed force or some other form of coercive interference), though often advertised as liberating a subject populace from tyranny, seldom portends genuine liberation; rather, the typical result is some new and worse predation, with even less coincidence of interests between ruler and ruled” (at 420–28); the author, writing just four years before the invasion of Iraq by the United States, the United Kingdom, and Poland, states, inter alia, that “the ‘democratic peace’ thesis does not assert that democracies do not commit aggression, but merely that they do not do so against regimes that are (or that their populations perceive to be) also democratic” (at 427); see also Simonen, supra note 22 at 432–37. Robert Ford, “the then U.S. ambassador to Syria, had reportedly opposed calling for Assad’s departure, arguing that the United States would not be able to bring it about, but his counsel was overruled.” Van Dam, supra note 198 at 4.

²⁰⁶ “Until such time as a genuine consensus emerges as to the criteria of governmental legitimacy, the principle of non-intervention will remain an enlightened one. The exception to that principle properly remains limited to those relatively few instances in which judgments from disparate worldviews overlap.” Roth, Governmental Illegitimacy, supra note 10 at 430.

²⁰⁷ Resolution 1973 (2011) at para 4.

²⁰⁸ Not only by Russia (see, inter alia, the statements made at the UNSC meeting of 4 May 2011 — UNSCOR, 66th Sess, 6528th Mtg, UN Doc S/PV.6528 (2011) at 9) but also by the African Union (in very strong terms; see the UNSC meeting of 15 June 2011 — UNSCOR, 66th Sess, 6555th Mtg, UN Doc S/PV.6555 (2011) at 4). See also the statements by South Africa at the UNSC meetings of 27 June 2011 (UNSCOR, 66th Sess, 6566th Mtg, UN Doc S/PV.6566 (2011) at 4); 28 July 2011 (“the intention of resolution 1973 (2011) was to ensure the protection of civilians, and not regime change or the targeting of individuals” — UNSCOR, 66th Sess, 6595th Mtg, UN Doc S/PV.6595 (2011) at 4 and 5); and 4 October 2011 (UNSCOR, 66th Sess, 6627th Mtg, UN Doc S/PV.6627 (2011) at 11), where the representative of South Africa refers to previous resolutions having been “abused”; as well as by several states attending the UNGA’s informal thematic debate on “[t]he role of regional and subregional arrangements in implementing the responsibility to protect” that took place on 12 July 2011 (UN Press Release GA/11112 (2011)). Katariina Simonen observes that “the UN and the AU strove for a negotiated solution between the warring parties on an equal footing. Whatever the motives were of some States in claiming the illegitimacy of the Gaddafi administration, such claims can hardly be justified on the basis of the Security Council’s civilian protection mandate. … [P]remature recognition also seriously hampered the UN’s and the AU’s efforts to find a negotiated solution for ending the crisis.” Simonen, supra note 22 at 438; see also at 436. It must be noted that a divergence appeared within the Russian leadership at the time (Nowak, supra note 94 at 70), then Russian President Dmitry Medvedev claiming that the Lybian government had lost legitimacy, whereas the Russian minister for foreign affairs took a much more cautious approach, conforming to the approach that Russia would later follow with regard to Syria.

²⁰⁹ On the allegedly limited scope and legality of the US military operations in Libya, with regard to achieving the objectives laid down in UNSC Resolutions 1970 and 1973 (2011), cf “Department of State Legal Adviser Discusses International Law Basis for US Military Operations in Libya” (2011) 105:3 Am J Intl L 568 at 605–07.

²¹⁰ In Syria (although not concerned by any UNSC decision to intervene), the city of Deraya offered a very interesting experience of that sort (see Caryl, supra note 4 at 3–4) and presents a striking similarity with the situation in Benghazi at the beginning of the crisis in Lybia. Cf also Martini & Heras, supra note 127.

²¹¹ “Egypt and Qatar were shipping advanced weapons to rebel groups the whole time, … while Western intelligence and military forces provided battlefield intelligence, logistics, and training support. … [A] NATO surface vessel stationed in the Mediterranean to enforce an arms embargo did exactly the opposite.” Zenko, Micah, “The Big Lie about the Libyan War,” Foreign Policy (22 March 2016) at 3ff;Google Scholar the author is of the view that “there almost certainly was a decision by the civilian heads of government of the NATO coalition” to take out Qaddafi “from the very beginning of the intervention.” On the provision of weapons to the insurgency, cf also Christina Larson, “The Gun Smuggler’s Lament,” Foreign Policy (September/October 2015) at 79, 81. On regime change in Libya, see also Hobe, Stephan, “The Responsibility to Protect and Security Council Action in Libya” (2011) 51Google Scholar Indian J Intl L 502 at 510; Ronzitti, “NATO’s Intervention,” supra note 3 at 17, 20.

²¹² See note 175 above.

²¹³ The representative of South Africa, at the UNSC meeting of 28 July 2011, warned that “[t]aking sides in any internal conflict situation in an effort to institute regime change in Libya sets a dangerous precedent that will surely damage the credibility of the Council and its resolutions.” UNSCOR, 66th Sess, 6595th Mtg, UN Doc S/PV.6595 (2011) at 5. Such criticism has persisted over time; in a statement dated 8 September 2014, the Permanent Mission of India to the United Nations declared that “we must be careful that R2P should not be misused to bring about regime change.” Addressing the UN General Assembly in 2015, an Indian representative also stated that “we must not forget what happened in Libya in 2011 when the Security Council Resolution referred to R2P without taking into account how sudden regime change will impact on the protection of the population.” “Indian Practice Relating to International Law” (2015) 55 Indian J Intl L 109 at 144 and 557 at 579. Stephan Hobe considers that “it may well be that the Libyan affair has discredited, rather than strengthened, the responsibility to protect for some time to come. It will take time and effort to overcome the mistrust that was created, and it remains to be seen whether the responsibility to protect can reassert itself in the future.” See Hobe, supra note 211 at 511; cf also Bartolini, Giulio, “L’operazione Unified Protector e la condotta delle ostilità in Libia” (2012) 95Google Scholar Rivista di diritto internazionale 1012 at 1021.

²¹⁴ The brutality of the Syrian government was stigmatized by the UNGA as early as December 2011 (Resolution 66/176 (19 December 2011)) and, indeed, by several UNSC members neither directly nor indirectly involved. See e.g. Brazil (UNSCOR, 66th Sess, 6524th Mtg, UN Doc S/PV6524 (2011) at 9; UNSCOR, 68th Sess, 7047th Mtg, UN Doc S/PV.7047 (2013) at 35), which, however, also highlighted the armed opposition’s responsibilities, and Guatemala at the UNSC meeting of 31 January 2012. UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 18. The above-mentioned International Peace Institute’s 2016 report contains a comprehensive analysis of what went wrong in the mediation efforts in the Syrian crisis. Hinnebusch et al, supra note 195. In any case, that “the security forces had to be restrained from the large-scale killings that had started with their use of heavy weapons in urban areas” was one of the key components of Kofi Annan’s approach to first reducing the violence. “UN Mediation in the Syrian Crisis,” supra note 195 at 7. On the brutality of the Syrian authorities’ reaction to the initial peaceful demonstrations, see also Arimatsu & Choudhury, supra note 10 at 7.

²¹⁵ Translated by the author; the original text in French reads as follows: “[U]ne révolution n’est sanglante qu’en proportion exacte de l’atrocité des abus qu’elle est appelée à déraciner.” Stendhal, Œuvres romanesques complètes (Paris: Pédone, 2005) at 822, 835 [emphasis in original]: “Projet d’article sur ‘Le rouge et le noir.’”

²¹⁶ Universal Declaration of Human Rights, 10 December 1948, UN Doc A/810 at 71 (1948) at 71, preamble.

²¹⁷ See David Blunt, Gwilym, “Is There a Human Right to Resistance?” (2017) 39CrossRefGoogle Scholar Hum Rts Q 860, especially at 870–72; Ginsburg, Tom, Lansberg-Rodriguez, Daniel & Versteeg, Mila, “When to Overthrow Your Government: The Right to Resist in the World’s Constitutions” (2013) 60:5 UCLA L Rev 1184, online: <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5102&context=journal_articles>;CrossRefGoogle Scholar Tony Honoré, “The Right to Rebel” (1988) 8 Oxford J Leg Stud 34; cf also Jarrett, supra note 34 at 377–79. The chairman’s conclusions at the Marrakech Meeting of the Group of Friends of the Syrian People stated that “[p]articipants recognized the legitimate need for the Syrian people to defend themselves against the violent and brutal campaign of [the] Al Assad regime.” “Chairman’s Conclusions,” supra note 67, point 4. This idea was also upheld in the debates in the UNSC. At the UNSC meeting of 24 January 2012, the Arab League’s Secretary General’s report to the League’s Council on 22 January 2012 was quoted: “[T]he opposition had to carry arms in response to the excessive use of force by the Syrian Government to counter protests, the use of repression, detention and torture and violations of human rights by security agencies.” UNSCOR, 67th Sess, 6706th Mtg, UN Doc S/PV.6706 (2012) at 12. In the same sense, see also the statements by the secretary-general of the Arab League himself at the UNSC meeting of 31 January 2012. UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 8. At the UNSC meeting of 23 April 2012, Qatar stated that as a result of the repressive solution the Syrian authorities had opted for, “some in Syria have had to resort to self-defence, which is a legitimate right.” UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 17. The United States also labelled the response by the protestors against the Syrian government as “self-defence.” UNSCOR, 67th Sess, 6751^st Mtg, UN Doc S/PV.6751 (2012) at 9.

²¹⁸ See e.g. Center for Civil Society and Democracy, <http://www.ccsd.ngo>; the Syrian Civic Platform, <http://www.scplatform.net>; the Aman Network, <http://www.amansyria.org>.

²¹⁹ This idea emerged in essence at the highest institutional level within the UN; at the UNSC meeting of 28 February 2012, Lynn Pascoe, UN under-secretary-general for political affairs, stated that “[t]he disproportionate use of force and military aggression against the civilian population by the authorities has driven the largely peaceful opposition forces to resort to armed resistance although to date the opposition’s firepower appears to be minimal as compared to the heavy weapons being used by the Syrian army.” UNSCOR, 67th Sess, 6725th Mtg, UN Doc S/PV.6725 (2012) at 2.

²²⁰ The EU high representative for foreign affairs and security policy described the deadly mix in these terms: “The military reaction of the Syrian regime to the peaceful political uprising in 2011 led to a protracted civil war supported and exacerbated by a number of external actors.” “Elements for an EU Strategy for Syria,” supra note 28 at 3.

²²¹ See “Global Centre for the Responsibility to Protect,” online: <http://www.globalr2p.org/our_work/un_security_council_code_of_conduct>. In the case of Syria, several calls on the UNSC to assume its responsibilities and take action have been made by international institutions and fora. See, among other examples, UNGA Resolution 66/53 (unprecedented), UN Doc A/RES/66/253 B (3 August 2012), preamble; the speech by the UN High Commissioner Zeid Ra’ad Al Hussein in his final address to the Human Rights Council (“For the love of mercy, end the pernicious use of the veto”, 26 February 2018, online: <http://www.coalitionfortheicc.org/news/20180226/un-security-council-love-mercy-end-pernicious-use-veto>); chairman’s conclusions at the Marrakech Meeting of the Group of Friends of the Syrian People. “Chairman’s Conclusions,” supra note 67, point 7. At the UNSC meeting of 26 September 2012, South Africa stressed that “the inability of the Council to deal with the situations in Palestine and Syria underscores the need for Council reform. The absence of reform renders cooperation with regional organizations vitally important as the unreformed Council attempts to grapple with contemporary threats to international peace and security.” UNSCOR, 67th Sess, 6841st Mtg, UN Doc S/PV.6841 (2012) at 13.

²²² The issue arises as to how NATO’s stretched action in Libya, in the context of the Unified Protector operation that continued the international intervention in Libya, might have played a part in facilitating the hardening of the positions of certain key states on the handling of the Syrian crisis, then still in its initial phases, the two having developed at the same time. Russia, for example, explicitly linked the two and voiced its concern over a possible application of the Libyan model to Syria. See the Russian statements at the UNSC meeting of 4 October 2011. UNSCOR, 66th Sess, 6627th Mtg, UN Doc S/PV.6627 (2011) at 4. Cf also the retort by the US representative (at 8). The United States qualified this as a “pretext,” denying any plan to set up a military operation in Syria. UNSCOR, 67th Sess, 6710th Mtg, UN Doc S/PV.6710 (2012) at 16; cf also UNSC meeting of 4 February 2012, UNSCOR, 67th Sess, 6711st Mtg, UN Doc S/PV.6711 (2012) at 7. However, the link was also made by the representative of South Africa: “We have seen recently that Security Council resolutions have been abused, and that their implementation has gone far beyond the mandate of what was intended. … With regard to the draft resolution … before us, … [w]e are concerned that this … not be part of a hidden agenda aimed at once again instituting regime change, which has been an objective clearly stated by some” (at 11; emphasis added). According to Salman Shaikh and Amanda Roberts, “[i]t would be fair to argue that Brazil, India and South Africa’s abstentions on the Syria vote in October 2011 were significantly influenced by the perception that the NATO-led intervention in Lybia had gone beyond its protection mandate, instead directly aiding the opposition and enabling the overthrow of Muammar Qaddafi. The ensuing controversy over postconflict Lybia was therefore a convenient and compelling public argument for Russia to use, but by no means was it the sole or even dominant factor in Russia’s ongoing defense of the Assad regime in the Security Council, nor in China’s consistent backing of the Russian veto. Still, the Libyan case has continued to impact Syria-related discussions within the Council over the implementation and enforcement of various agreements. Nowhere was this more damaging than when the Council failed to agree on a Chapter VII resolution in support of the June 2012 Geneva communiqué.” Shaikh & Roberts, supra note 8 at 719ff; cf also 722. In this respect, see also Hobe, supra note 211 at 510ff; Averre, Derek & Davies, Lance, “Russia, Humanitarian Intervention and the Responsibility to Protect: The Case of Syria” (2015) 91:4CrossRefGoogle Scholar International Affairs 813; Dergham, supra note 8 at 741. On the other hand, the question arose as to whether the authorization to take “all necessary measures” to protect the civilian population in Lybia, contained in Resolution 1973 (2011), included assistance to opposition forces and whether regime change was actually the only method for achieving that, on the basis of the allegation that it would have been difficult to protect civilians in Libya as long as Gaddafi remained in power. See Henderson, Use of Force, supra note 18 at 136–42, where the author nevertheless concludes that such broad interpretations of the authorization were a concern for many members of the UNSC. Furthermore, the point has been made that the Russian and Chinese representatives on the UNSC should probably have known that the military action in Libya would involve taking sides in the ongoing civil war as well as attacking regime installations as the only practical ways to protect the civilian population. Roberts, supra note 8 at 361.

²²³ Interestingly, at the UNSC meeting of 23 July 2013, Iceland observed that “[t]he parties have demonstrated that they are not going to lay down arms without external interference, and the Council has yet to demonstrate that it is doing all in its power to prevent further human tragedy. Before the conflict escalates further, with even more serious consequences for regional peace and security, we ask that the Council please take action.” UNSCOR, 68th Sess, 7007th Mtg, UN Doc S/PV.7007 (2013) at 54.

²²⁴ See, inter alia, Geneva Academy of International Humanitarian Law and Human Rights, “The War Report: Armed Conflicts in 2018,” edited by Annyssa Bellal (2019), online: Geneva Academy <https://www.geneva-academy.ch/news/detail/226-the-war-report-armed-conflicts-in-2018>; cf also Roberts, supra note 8 at 351.

²²⁵ “The United Nations at 70” (2015) 20:6 Eur HRL Rev 555 at 556.

²²⁶ The ‘popular’ argument of counterterrorism was thus also invoked — in vague terms — by the Saudi-led coalition intervening in Yemen, in addition to the other arguments, although the UNSC never classified the Houthis as “terrorists.” See Nuβberger, supra note 18 at 136ff.

²²⁷ In this sense, see also Nuβberger, supra note 18 at 137. The same approach is relevant also with regard to legitimizing armed action in third states unwilling or unable to combat non-state actors operating from within their territory (as in the case of the armed operations carried out by the international coalition against ISIS/Daesh targets in Syria), in which case the international/collective backing or endorsement would incidentally allow the ascertainment of a clear inability of the third state in question to prevent/counter the terrorist threats. See Bethlehem, Daniel, “Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106:4 Am J Intl L 769;Google Scholar Wilmshurst, Elizabeth & Wood, Michael, “Self-Defense against Nonstate Actors: Reflections on the ‘Bethlehem Principles’” (2013) 107:2 Am J Intl L 390;CrossRefGoogle Scholar Akande, Dapo & Liefländer, Thomas, “Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense” (2013) 107:3 Am J Intl L 563;Google Scholar Tladi, Dire, “The Nonconsenting Innocent State: The Problem with Bethlehem’s Principle 12” (2013) 107:3 Am J Intl L 570;CrossRefGoogle Scholar Hmoud, Mahmoud, “Are New Principles Really Needed? The Potential of the Established Distinction between Responsibility for Attacks by Nonstate Actors and the Law of Self-Defense” (2013) 107:3 Am J Intl L 576;Google Scholar Bethlehem, Daniel, “Principles of Self-Defense: A Brief Response” (2013) 107:3 Am J Intl L 579;CrossRefGoogle Scholar Lobo de Souza, IM, “Revisiting the Right of Self-Defence against Non-State Armed Entities” (2015) 53 Can YB Intl L 202;CrossRefGoogle Scholar Latty, Franck, “Le brouillage des repères du jus contra bellum: A propos de l’usage de la force par la France contre Daech” (2016) 120 RGDIP 11 ;Google Scholar Alabrune, François, “Fondements juridiques de l’intervention militaire française contre Daech en Irak et en Syrie” (2016) 120 RGDIP 41;Google Scholar Ruys, Tom, “Divergent Views on the Charter Norms on the Use of Force : A Transatlantic Divide ?” (2015) 109Google Scholar American Society Intl L Proceedings 67; Van Steenberghe, Raphaël, “Les interventions militaires étrangères récentes contre le terrorisme international: Première partie: fondements juridiques (jus ad bellum)” (2015) 118 AFDI 145;Google Scholar Olivier, Corten & Verdebout, Agatha, “Les interventions militaires récentes en territoire étranger: vers une remise en cause du jus contra bellum?” (2014) 60 AFDI 135;CrossRefGoogle Scholar Nigro, Raffaella, “La risoluzione del Consiglio di sicurezza delle Nazioni Unite n. 2249 (2015) e la legittimità dell’uso della forza contro l’ISIS in base al diritto internazionale” (2016) 10Google Scholar Diritti umani e diritto internazionale 137. For a critical analysis of states’ practice and of their related statements, cf also Nowak, supra note 94 at 55 ff.

²²⁸ Many Western authors have already supported the view that once actual civil war has started, foreign intervention is impermissible on either side (Roth, Governmental Illegitimacy, supra note 10 at 181), as did the Institut de droit international Resolution, supra note 13. A general non-intervention rule is also referred to as the “Negative Equality Principle,” that some sources consider as the most recent trend in scholarship. See namely “Report of the Independent International Fact-Finding Mission on the Conflict in Georgia Set up by the EU in 2008,” vol 2 (2009) at 277, online: <http://www.mpil.de/files/pdf4/IIFFMCG_Volume_II1.pdf>; cf Henderson, Use of Force, supra note 18 at 361, 367. Furthermore, according to Roth, “[a] government that is kept in power by foreign assistance … is a problem even where foreign security assistance enables a government to prevent rebellion, snuff it out in its incipient stages, or keep it from rising to the level of insurgency.” Roth, Governmental Illegitimacy, supra note 10 at 197.

²²⁹ According to the definition set out at the beginning of this article. The proposed non-intervention principle would thus have a broader scope than the worthy attempt made by the Institut de droit international Resolution, supra note 13, which did not refer to situations at risk of escalating into civil war.

²³⁰ According to the Institut de droit international Resolution, supra note 13, financial or economic assistance should be prohibited insofar as it would be likely to influence the outcome of the conflict (art 2(2)(d)) — a criterion, however, that would be extremely difficult to apply in practice.

²³¹ Interestingly, the five principles for settling the Syrian crisis that were agreed upon between Russia and the League of Arab States on 10 March 2012 comprised “first, the end of violence on the part of all sides; secondly, an impartial monitoring mechanism; thirdly, no outside interference; fourthly, unimpeded access for humanitarian assistance to all Syrians; and, fifthly, strong support for Kofi Annan’s mission aimed at launching political dialogue between the Government and all opposition groups.” UNSCOR, 67th Sess, 6734th Mtg, UN Doc S/PV.6734 (2012) at 10. At the UNSC meeting of 21 April 2012, the representative of South Africa stressed that the deployment of the advance team of the observer mission in Syria (UNSMIS), set up by UNSC Resolution 2042 (2012), had already proved to be a calming influence, as violence had decreased in its presence. UNSCOR, 67th Sess, 6756th Mtg, UN Doc S/PV.6756 (2012) at 7. In the same sense, see also the statements by the representative of India at the same UNSC meeting (at 9). UNSMIS’s activities were nevertheless suspended in June 2012 owing to security concerns.

²³² The UN-appointed mediator for Syria in the first half of 2012 (and former secretary-general of the UN), Kofi Annan, observed that “there was a contradiction between the Western powers’ support for his mediation and their simultaneous backing of one side in the conflict. He believed that momentum toward a political settlement had to build before the conditions would be right for Assad’s departure.” Quoted in “UN Mediation in the Syrian Crisis,” supra note 195 at 6.

²³³ An arms embargo on South Sudan was only imposed on 13 July 2018 (UNSC Resolution 2428 (2018)), after nearly five years of fighting and mass atrocities. UNSC Resolution 2400 (2018), adopted on 8 February 2018, had reiterated the targeted sanctions already in place but had not gone as far as to impose a comprehensive arms embargo. In the Letter dated 12 April 2018 from the Panel of Experts on South Sudan addressed to the President of the Security Council, containing their final report on South Sudan, the Experts had clearly stated that in the absence of a UNSC-imposed arms embargo, member states were not prohibited from selling weapons to South Sudan, in spite of the fact that an arms embargo, which they recommended, would be “technically feasible and would have a positive impact on the political and security environment.” UN Doc S/2018/292 (12 April 2018) at 24–25, 31. Russia, backed by Angola within the UNSC, was reluctant to support an arms embargo on grounds that it “would be one-sided because it would be easier to enforce on the government.” Russia’s UN ambassador, quoted in “South Sudan Needs Arms Embargo; Leaders Killing Civilians – UN Panel,” Reuters (28 January 2016). This in spite of the fact that government security forces were held responsible for the vast majority of the violations of international humanitarian and human rights law (see UN Doc S/2018/292, ibid at 12). Furthermore, the Russian position in this case was in clear contradiction with the position Russia took in the case of Yemen, where it was in favour of imposing an embargo on all opposing parties and not just on the insurgents (see note 101 above). The United States and the EU had consequently adopted a unilateral arms embargo, and some other states had adopted self-imposed restrictions on arms sales to South Sudan (see UN Doc S/2018/292, ibid at 25, n 115, 7–8; cf also “Exclusive: U.S. to Impose Arms Embargo on South Sudan to End Conflict — Sources,” Reuters (2 February 2018); Lynch, Colum, “U.S. Push to Halt Genocide in South Sudan Unravels at United Nations,” Foreign Policy (30 November 2016).Google Scholar On the problem of arms being diverted/re-transferred into South Sudan and the flow of arms fueling the conflict, see Gramer, Robbie, “How European and Chinese Arms Diverted to South Sudan Fueled Its Civil War,” Foreign Policy (29 November 2018).Google Scholar At the beginning of the Syrian crisis, an arms embargo was advocated by Germany. UNSCOR, 67th Sess, 6711st Mtg, UN Doc S/PV.6711 (2012) at 5.

²³⁴ See discussion earlier in this article.

²³⁵ See, in particular, UNSC Resolutions 660 (1990) and 678 (1990).

²³⁶ In this respect, see Roth, Governmental Illegitimacy, supra note 10 at 187. Only in these terms would we deem acceptable the counter-intervention exception provided for by Article 5 of the Institut de droit international Resolution, supra notes 13 and 39.

²³⁷ Pursuant to ARSIWA, supra note 66, art 8.

²³⁸ With regard to the new internal conflict then looming in Yemen, Peter Salisbury underlined that “if war does break out, their only hope of defeating a Saudi-backed coalition will be to lean even more heavily on Iranian support.” Salisbury, supra note 178 at 2.

²³⁹ See discussion earlier in this article.

²⁴⁰ In this respect, see also Ruys, “Of Arms,” supra note 35 at 46, 52.

²⁴¹ “Statement of the President of the UNSC,” UN Doc S/PRST/2013/3 (15 February 2013).

²⁴² These two exceptions (clearly established terrorist threats and/or forcible interventions on behalf of the legitimate government authorized by the UNSC or a regional security organization) would in our view override the criticism of what has been labelled a “strict-abstentionist” approach, for example, by Lieblich, supra note 39 at 130–40. It is also worth stressing that, after all, “forcible or armed activities undertaken by an intergovernmental organization following an invitation by a legitimate government … are the most wide-spread example of such interventions in the contemporary world.” Hafner, supra note 2 at 256 (comments by Abdulqawi Ahmed Yusuf); in this latter regard, cf also Lieblich, supra note 39 at 30–37.

²⁴³ See Henderson, Use of Force, supra note 18 at 356; Magi, supra note 20 at 561. Mamady Traore and Louis Balmond consider that the 2013 French intervention in Mali fulfilled, in particular, the objectives laid down in previous UNSC resolutions concerning the fight against terrorism and merely anticipated, in an emergency situation, collective action. See Traore, Mamady & Balmond, Louis, “A propos des fondements juridiques de l’opération ‘Serval’” (2013) 117 RGDIP 150.Google Scholar UNSC Resolution 2100 (2013) subsequently authorized French troops “to intervene in support of elements of MINUSMA when under imminent and serious threat upon request of the Secretary-General” (at para 18). Furthermore, even if he concludes that the legal basis for the French intervention was the invitation of the Malian transitional government, Massimo Starita stresses the legal relevance of the UNSC resolutions in the context of which the intervention took place. Starita, Massimo, “L’intervento francese in Mali si basa su un’autorizzazione del Consiglio di Sicurezza?” (2013) 96Google Scholar Rivista di diritto internazionale 561.

²⁴⁴ Interestingly, at the UNSC meeting of 30 August 2012 on Syria, the UN deputy secretary-general stated that “Member States with influence on the Syrian Government or the opposition forces have an obligation to end the killing and promote a peaceful resolution of the conflict.” UNSCOR, 67th Sess, 6826th Mtg, UN Doc S/PV.6826 (2012) at 3 [emphasis added]. At the UNSC meeting of 23 April 2012, Lynn Pascoe, UN under-secretary-general for political affairs, stressed that the objective was “clearly not to freeze the situation but to create the conditions for a serious and credible political process.” UNSCOR, 67th Sess, 6757th Mtg, UN Doc S/PV.6757 (2012) at 2. It has been observed that multilateral (especially UN) rather than unilateral intervention is also better suited to lead to positive results in terms of postwar development. Ki Kim, supra note 188 at 636. Roth notes that “[t]he end of the Cold War, in addition to eliminating the most prominent source of ideological polarization in the international community, occasioned a role for international organizations in the resolution of civil conflicts previously fueled by superpower competition”; he also underlines the fact that negotiated solutions often included electoral frameworks and provisions for international organizations to serve as guarantors of electoral fairness. See Roth, Governmental Illegitimacy, supra note 10 at 322.

²⁴⁵ Quoted at the UNSC meeting of 22 October 2013. UNSCOR, 68th Sess, 7047th Mtg, UN Doc S/PV.7047 (2013) at 26.

²⁴⁶ Always bearing in mind, as observed by Michael Wood, that “experience suggests that collective decisions (whether for action or inaction) are almost invariably better than unilateral ones.” Michael Wood, “International Law and the Use of Force: What Happens in Practice?” (2013) 53 Indian J Intl L 345 at 366.

²⁴⁷ Which corresponds to one of the key elements of the 2001 report drafted by the Canadian International Commission on Intervention and State Sovereignty (ICISS), which laid down the basis for the responsibility to protect principle. ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Center, 2001), online: <http://responsibilitytoprotect.org/ICISS%20Report.pdf>. The latter principle, adopted in 2005 in the World Summit Outcome, did not, however, include this element with regard to resorting to collective action, through the UNSC, “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” 2005 World Summit Outcome, UNGA Resolution 60/1, UN Doc A/60/49 (2005), vol 1, para 139. On the thorny issue as to whether or not military intervention in Syria would have been a useful option, cf, for example, Niamh O’Sullivan, “The Moral Enigma of an Intervention in Syria: A Just War Analysis,” IAI Working Papers 1222 (2012); Zenko, Micah, “A No-Fly Zone Doesn’t Mean a No-War Zone,” Foreign Policy (6 September 2016).Google Scholar In 2016, fifty-one US State Department officials signed a document dissenting from Obama’s Syria policy; in this regard, see, inter alia, Hof, Frederic C, “A Humanitarian Intervention in the West Wing,” Foreign Policy (20 June 2016);Google Scholar Sanger, David E, “Kerry Meets with State Dept. Dissenters Urging Action on Syria,”New York Times (21 June 2016).Google Scholar

²⁴⁸ The words of the minister for foreign affairs and cooperation of Mauritania at the UNSC meeting of 15 June 2011, on behalf of the visiting ministerial delegation of the African Union Ad Hoc High-Level Committee on Libya, appear particularly far-sighted: “We are here today to reassure the Council of our commitment to an inclusive political solution that will enable Libyans to agree on an approach that is as consensual as possible to meet their aspirations for democracy, the rule of law and respect for human rights. … We are here to say to the Council how important it is that such a process be conducted and owned by all Libyans and that it include mutual concessions as part of a dialogue without predetermined conditions. Its outcome should be that the democratization of their country is the result of their own efforts and the consensus they arrive at. Experience has shown us time and time again that this is a precondition for lasting democratic change, as well as to ensuring that there is no reason for the fratricidal upheaval that is tearing Libya apart to continue.” UNSCOR, 66th Sess, 6555th Mtg, UN Doc S/PV.6555 (2011) at 4–5. Interestingly, Patrick M Regan and Aysegul Aydin observe that “interventions that have an explicit focus on conflict management are more likely to be effective at stopping the violence than those that focus on manipulating the structural conditions, such as relative capabilities.” Regan & Aydin, supra note 187 at 754.

²⁴⁹ See discussion earlier in this article.

²⁵⁰ See, inter alia, Sciso, Elena, “I crimini in Siria, la Responsibility to Protect e l’esercizio del veto nel Consiglio di Sicurezza” in Ronzitti, Natalino & Sciso, Elena, eds, I conflitti in Siria e Libia. Possibili equilibri e le sfide al diritto internazionale (Torino: G Giappichelli, 2018) 21;Google Scholar Henderson, Christian, “The Centrality of the United Nations Security Council in the Legal Regime Governing the Use of Force” in White, Nigel D & Henderson, Christian, eds, Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus post Bellum (Cheltenham, UK: Edward Elgar, 2013) 148;Google Scholar cf also Orford, Anne, International Authority and the Responsibility to Protect (Cambridge, UK: Cambridge University Press, 2011);CrossRefGoogle Scholar Holzgrefe, Jeff L & Keohane, Robert O, eds, Humanitarian Intervention. Ethical, Legal and Political Dilemmas (Cambridge, UK: Cambridge University Press, 2003).CrossRefGoogle Scholar

²⁵¹ In the context of the 1999 intervention in Kosovo and elsewhere, see Henderson, Use of Force, supra note 18 at 393ff, 401ff, and the literature therein.

²⁵² The ICJ’s words in the Corfu Channel judgment are still illuminating in this regard. Corfu Channel (United Kingdom v Albania), [1949] ICJ Rep 4 at 35.

²⁵³ Both options had already been put forward by the Canadian ICISS, although the ensuing developments (the 2004 report of the High-Level Panel on Threats, Challlenges and Change, the response of the UN secretary-general, and the position taken by states through the 2005 World Summit Outcome Document) upheld the existing collective security system based on the UNSC’s central role. See Thomas G Weiss, “Humanitarian Action and Intervention,” in Einsiedel, Malone & Stagno Ugarte, supra note 8, 217 at 224ff.

²⁵⁴ See note 221 above.

²⁵⁵ Salman Shaikh and Amanda Roberts note that “[a]n effort by Arab states to have the General Assembly invoke the ‘Uniting for Peace’ formula — whereby the General Assembly should take action when the P5 are deadlocked — was successfully discouraged by the P3” — that is, the United States, the United Kingdom, and France. Shaikh & Roberts, supra note 8 at 723.

²⁵⁶ White, Nigel D, Advanced Introduction to International Conflict and Security Law (Cheltenham, UK: Edward Elgar, 2014) at 75–77;CrossRefGoogle Scholar it is very doubtful whether such a constitutional crisis would be beneficial to the UN or would instead have dangerous and unpredictable disruptive effects.

²⁵⁷ The UNGA could only recommend forcible measures with regard to breaches of the peace or acts of aggression. See Henderson, Use of Force, supra note 18 at 400.

²⁵⁸ In particular, the Economic Community of West African States’s interventions in Liberia and Sierra Leone. See Shaw, supra note 3 at 977–79; Henderson, Use of Force, supra note 18 at 391–93.

²⁵⁹ See Roberts, supra note 8 at 349ff, especially 365–69.

²⁶⁰ See discussion earlier in this article and note 221 above.

²⁶¹ Although, in a more specific context, it is nevertheless interesting to note that in their joint political statement on the suspension of the veto in case of mass atrocities, presented on the occasion of the seventieth session of the UNGA, the governments of France and Mexico evoked a similar concept of “responsibility” within the UNSC and underscored that the so-called “veto power” “is not a privilege but an international responsibility.” “Political Statement on the Suspension of the Veto in Case of Mass Atrocities” (1 October 2015), online: <http://responsibilitytoprotect.org/ACT%20English.pdf>.

²⁶² Antoine Meillet, Introduction à l’étude comparative des langues indo-européennes (Paris: Librairie Hachette, 1903) at x [translation by the author].

²⁶³ See Roberts, supra note 8 at 369.

²⁶⁴ See Wenaweser, Christian, “Working Methods: The Ugly Duckling of Security Council Reform” in Einsiedel, Malone & Stagno Ugarte, supra note 8, 175 at 189.Google Scholar