Book Review: Arms Transfers to Non-State Actors : The Erosion of Norms in International Law

At the beginning of May, Edward Elgar Publishing released an important book by researcher Hannah Kiel from Freie Universität Berlin, titled “Arms Transfers to Non-State Actors: The Erosion of Norms in International Law.” This book examines the erosion of norms in international law by studying the transfer of arms to non-state actors. The researcher focuses on recent case studies, tracking individual changes in norms against the backdrop of the systemic shift in the legal status of arms transfers.

The author analyzes issues related to arms transfers to non-governmental actors in light of changes in the prohibition of such transfers. She discusses the legal developments on this topic since the pivotal ruling by the International Court of Justice in Nicaragua in 1986, through relevant case studies including Abkhazia, Bosnia, Congo, Eastern Ukraine, Kosovo, Libya, Northern Iraq, South Ossetia, Syria, and Yemen. By adopting a customary law perspective, while considering the context of changes in the structures and institutions of the international system and the role of state practices and the human rights model, the book shows how changes in norms have led to transformations in the international system.

The researcher provides evidence that while arming non-state actors remains formally illegal, the prohibition of this practice is informally eroding in political discourse, characterized by state declarations that are confusing and interwoven with political and legal references. The researcher dedicates significant analysis to the Syrian case, linking it to a series of arms transfers to non-state actors and the risks they pose to the stability of the international legal order.

The researcher questions the motives and backgrounds of the Syrian case: were the arms transfers to non-state actors purely political moves driven by political and strategic considerations, or was there a deeper need to supply the opposition with weapons as part of the transformations in the international system? Returning to international law references, the researcher notes that the International Court of Justice unanimously ruled in the Nicaragua case in 1986 that arming the Nicaraguan opposition violated customary international law. Conversely, analyzing 35 years of legal positions on arms transfers to non-state actors confirms that current trends do not reflect the legal norms and controls in this field.

It is essential to dismantle this dynamic and its driving forces because the weakening of the prohibition on arms transfers to non-state actors is not an isolated phenomenon; it is indicative of a broader pattern of erosion in international law. Analyzing the transition from Nicaragua to Syria may not only tell the story of how the legal assessment of arms transfers has evolved but also reflect the changing nature of relationships with non-state actors and the current dynamics in the international system.

Arms transfers to non-state actors are not a recent phenomenon; they have been a popular tool in the foreign policies of many states, especially during the Cold War. However, states did not attempt to justify these transfers with legal arguments at the time, and actions were carried out in secret. Conversely, the explicit support provided in recent conflicts suggests a shift in direction. Although the scale of state practices has not increased comprehensively, this new trend indicates a change in perceptions about arming non-state actors.

This shift can be seen as a purely political attempt to expand the range of permissible foreign policy options for states. The researcher emphasizes that focusing on the issue as an infringement on customary international law is a superficial conclusion to a complex process. This goes beyond the specific legal effects of arms transfers over the past few decades and necessitates considering a broader context and deeper level of legal significance to understand empirical analysis. Normative change always interacts with the multiple dynamics occurring in its environment, leading to broader structural transformations that either reinforce or erode legal norms.

The book also explores how states are dealing with this radical shift, what understanding of the law they declare, and how this could lead to the erosion of established norms. Against this backdrop, the book analyzes whether broader shifts in international law conflict with discourses on arms transfers to non-state actors and to what extent, or conversely, whether comparing broader shifts with changes in individual norms reveals a similar pattern crystallizing in international law. The focus is on the interrelationships between the prohibition on arms transfers to non-state actors and discourses on sovereignty and human rights.

The rise of human rights norms has had a radical impact on the “matrix” of international law, particularly concerning arms transfers to non-state actors. This is at least one reason why states have pointed to ethical aspects differently when justifying the use of force since the end of the Cold War. Arms supplies have been justified on human rights grounds: in some cases, it was necessary to defend the recipient’s right to self-defense, and in others, the justification was the risk of committing atrocities.

Analyzing the change in prohibition norms, in conjunction with their mutual relationship with other norms and the realities associated with the nature of the entities receiving the weapons, shows that the applicability of the prohibition on arms transfers to non-state actors depends on the entity defined as a non-state actor and which entity is defined as a state. This distinction is fluid because non-state actors may ultimately take on governmental roles within states. The category of “non-state actors” is a reality in its political, social, and military dimensions, closely linked to issues of real power and social reality. Considering recent Western recognitions of entities as “the legitimate representative of the people” in various countries such as Libya, Venezuela, and Syria indicates the role of state interests in manipulating the legal cover for this phenomenon.

The researcher highlights the connection between this phenomenon and the irreconcilable contradictions between conflicting international law rules and reality, explaining how this expands states’ maneuvering margins in interpreting norms like defining non-state actors. Therefore, it is necessary to compare how states construct links between law and facts, as establishing a new relationship between law and reality is accompanied by rebuilding relationships between different norms and between norms and values of international law and legitimacy. Considering the motives for transformation at multiple levels, this book sees that the transition from Nicaragua to Syria reflects structural changes in international law, which increasingly facilitate the erosion and collapse of norms.

SAKHRI Mohamed
SAKHRI Mohamed

I hold a Bachelor's degree in Political Science and International Relations in addition to a Master's degree in International Security Studies. Alongside this, I have a passion for web development. During my studies, I acquired a strong understanding of fundamental political concepts and theories in international relations, security studies, and strategic studies.

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