Russia’s Intervention in Syria: A Legal Perspective

By Ziyad Hayatli   Published 28 August, 2016

joint enterprise, Cain-leadeth-Abel-to-death

As the Syrian civil war enters its 5th year, Iran, Saudi Arabia, the U.S. and China have declared their hands. Writing in 2012 for the German Institute for International and Security Affairs, Muriel Asseburg and Heiko Wimmen rightly concluded “the conflict has acquired the character of a proxy war” and what is certain is that this was confirmed in 2013 by the U.N Independent International Commission of Inquiry on the Syrian Arab Republic 6th Report. Its latest findings released this year state further this trite and sad fact and reiterate that “The conflict has devolved into a multisided proxy war steered from abroad”.

Introduction

This article will examine the involvement of Russian intervention within the Syrian civil war. Russia is a key player in the conflict and attention worldwide has been paid to its involvement. The question is whether its support of The Syrian Arab Republic is contrary to what is acceptable and positive in respect of military intervention within international law. The horrors to which the Syrian people have been subjected have not lessened and neither has the wariness shared by the majority of the international community about the legitimacy of Russia’s involvement.

Russian Federation Intervention

Russia’s participation began in October 2015, accompanied by commentary aired on U.S networks by President Vladimir Putin. This occurred prior to his meeting with President Barack Obama. The Russian President intimated that intervention would be legitimate as it amounts to aiding the legitimate Syrian Government. Referring to international law, including the United Nations Charter, President Putin said that American support of illegitimate non-state-actors is endangering Syrian sovereignty and is therefore illegal.

Citing President Assad’s violent suppression of peaceful demonstrations, Barack Obama disagreed with President Putin’s argument. The violence of the Assad regime is well documented and the recent U.N Human Rights Council Report Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic evidences ‘massive and systematised violence’ Barack Obama has subsequently stated:

“the only way to solve the problem in Syria, is to have a political transition, that is inclusive, that keeps the state intact, that keeps the military intact, that maintains cohesion but that is inclusive and the only way to accomplish that is for Mr Assad to transition, because you can not rehabilitate him in the eyes of Syrians”.

This article will conclude that whilst the American stance on the Assad Regime is correct, prima facie the Russian President's remarks are true. The point is arguable, and given the severity of the ongoing situation, must be debated zealously. Collective self-defence and consensual intervention agreements between states have been extensively litigated at the International Court of Justice (ICJ), notably the Nicaraguacase (1986) and the Democratic Republic of Congo v. Uganda (DRC v. Uganda) (2005). Furthermore contemporary United Nations Security Council (UNSC) decisions seem to indicate that incumbent governments may not always be subject to "democratic criteria". The agreed strategy towards Syria seems to rest between the two approaches. It is in this middle ground, and the factor of international terrorism, that Russia’s intervention in Syria is debatable.

Non- Intervention - Collective self defence

Non-intervention as a principle of customary international law was founded upon the concept of the territorial sovereignty of states. Generally, non-intervention is subject to opinio juris sive necessitatis (one of the elements of ‘custom’ which is a source of international law under Art.38 Statute of the International Court of Justice). To satisfy the opinio juris criteria, there must be (i) state practice and (ii) recognition or belief that the practice equates to a legal obligation. The objective practice and subjective belief in non-intervention are evidenced by two major UNGA resolutions: Firstly, UNGA Resolution 20/2131 (1965), Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty. Secondly, UNGA Resolution 25/2625 (1970), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. However, this is soft law and therefore not binding.

Collective self defence and prohibition on the use of force

The ICJ confirmed the non-intervention as a principle of international law in the Nicaragua case (para 73) concerning the United States’ support of Nicaraguan contra rebels, who acted within Nicaragua against the Government. The questions raised were, whether this support amounted to intervention, and whether the intervention was illegal. The United States pleaded collective self-defence, subject to a number of caveats:

(i) The State in question must have been subject to armed attack by conventional or non-conventional forces,

(ii) This must be declared by the State

(iii) The State must request support, thus consent to be defended.

The court explained that encroachment (without consent) upon a sovereign State's right to manage its own interests is prohibited. Encroachment includes the use of force. The justification for mutually agreed defence, according to the Court, is found within the wording of Article 51 of the UN Charter, which "testifies to the existence of collective self-defence in customary international law".

By 12 votes to 3, the ICJ rejected the plea of collective self defence citing lack of evidence. It could not be established that Nicaragua was aiding El Salvadoran anti-government rebels.

Subsequent case law suggests that reliance upon Art.51 is factually sensitive and that the ICJ takes a rightly stern line with matters relating to territorial integrity. The case DRC v. Uganda (2005) which reaffirmed Nicaragua in its reasoning referred to the use of force as embodied within Article 2 (4) of the UN charter, which states:

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’.

This reflects the ICJ’s firm stance on the prohibition of intervention without state consent in international law. The question remains, how would the court evaluate (if required to do so) the corroboration of military engagement by The Syrian and Russian Government? A direct military involvement by the UNSC as enshrined by Article 43 of the UN Charter, under which Russia may have acted, has not taken place. Furthermore the interest of UNSC members such as the U.S. to topple the Syrian Government conflicts with that of Russia, as demonstrated by the exercise of its veto power against a UNSC referral to the International Criminal Court. What can be said is that The Syrian Government has lost effective control of its territory (almost all of Eastern Syria) and faces armed groups that are mounting a sustained military campaign. The threat is obvious and visible. In terms of consent, the close coordination between Russian and Syrian Government troops, as well as Syria openly inviting Russia for assistance is clear. Most telling, is that Russia's intervention in October 2015 remains legally uncontested by any state. Applying the above reasoning, Russia may invoke collective self-defence as the Syrian Government faces a genuine threat from non-state-actors, for example: ISIL and other so-called Islamist groups, the Free Syrian Army (FSA), and Syria Democratic Forces (SDF).

The nature of conflict

The Geneva Conventions (1949) are the natural starting point for looking at international law in relation to the nature of conflict. Additional Protocols I and II of the Conventions, concerning non-international armed conflict (i.e. civil wars), contain Articles on non-intervention. Article 3 of Additional Protocol II states:

‘(1) Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State. (2) Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.

The conventions stand beside the ICJ’s resolute position. What is at stake when speaking of intervention is the sovereignty of states. Creating a precedent, based on any rationale, is therefore discouraged.

Legitimacy and self-determination

One critical point that the Nicaragua case asserts is that, in situations of civil war, the presumption of legitimacy goes to the existing government. This implies that for an actor to "invite" a third party into an internal conflict, it must be legitimate. Thus, the legality of Russia's intervention hinges on whether the current Syrian government is legitimate.

Gregory Fox, in his paper ‘Intervention by Invitation’, makes this observation about the Nicaragua case, referring to it as a ‘dichotomous view’ of intervention as the incumbent government will always be legitimate according to this reasoning. He observes that during the Cold War, the principle of non- intervention was “stood on its head”, as various states used the aiding of non-state actors to wage proxy wars, while protesting against them in other cases for political reasons. Examples include Soviet intervention in Afghanistan and Vietnam, as well as U.S. interventions in Nicaragua, Chile, and Guatemala.

Immediately after the Cold War era, the UNSC defended interventionism; defining internal unrest within states as a wider “threat to the peace”, and imposing a “democratic criteria”. Cases include Haiti; the deposition of President Aristide (1994); Sierra Leone, the deposition of Kabbah by a military coup (1997); and Cote D’Ivoire, the prevention of democratically elected Ouattara from taking office after his election victory (2011).

A recent example is the Mali case, whereby the UN Security Council resolution 2056 (2012) [on the situation in Mali], 5 July 2012, S/RES/2056(2012) authorised Member States to intervene, and protect the democratically elected government from rebels who took control of the northern territory. After the regional Economic Community of West African States (ECOWAS ) force failed, France was amongst the most heavily involved actors. All these resolutions cite ‘democracy’ and ‘democratic values’, linking it to wider peace and stability. They also represent an opinio juris and state practice which is a rising trend in how states engage with civil wars and interventions by applying a ‘democratic criteria’. The use of a political ideology, democracy, in binding UNSC resolutions - which contribute to opinio juris and practice of states in customary international law is problematic. Alternatively, self-determination is seen as a principle of international law, and “democracy” as a means of achieving it.

The aforementioned Resolution 25/2625 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, A/RES/25/2625 (1970) makes this a collective. However, its focus seems to be largely on the subject of colonisation, as it explicitly mentions foreign and alien authorities. It has a caveat at the end, stating that:

‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States’.

The important characteristic of self-determination is its erga omnes nature, meaning that as a principle application to all, it must be held in consideration and with respect when a state, ( in this case an intervening state), is engaged in the territory of another. As explained by the ICJ in the East Timor Case (1995):

In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Coun- cil Resolution 276 (1970), Advisory Opinion, I. C. J. Reports 1971, pp. 31- 32, paras. 52-53 ; Western Sahara, Advisory Opinion, I. C. J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential principles of con- temporary international law (para 29).

This creates uncertainty about Russia’s intervention. The nature of the Syrian Government, a dictatorial, one-party state, or even a personal enterprise of the Assad family (Lesch, 2012: 50) can be argued to impair the political unity of the Syrian people. Assisting this government is degrading to Syrian self-determination. Alternatively, opposing the outright removal of the Syrian Government and preventing a power vacuum may work for longer-term stability; which is not just a political approach, as demonstrated by the U.S.-led invasion of Iraq in 2003 and its aftermath.

Syrian legitimacy

Although the Syrian Government has held elections, they occurred during a civil war, at a time when four million Syrians have fled the country. The Government still has no effective control over the majority of provinces. Basing their mandate of power on such a flawed process can itself undermine democratic legitimacy in the eyes of the international community. Additionally, the issue of effective control is especially tied to the concept of a state’s legitimacy, as explored by James Crawford in his paper titled ‘Too Much, Too Soon?’ Crawford uses various examples, from the decolonisation of Guinea Bissau to the Occupied Palestinian Territories, in explaining the trend in international law towards the legitimacy of states and authorities. Professor Shaw also makes a bold statement, referring to the “test of acceptance” of governmental authority, which is based on ‘effective control’ rather than upon the nature of the regime, whether democratic, socialist, or otherwise (Shaw, 2014: 322 & 835). In this case whether one has a democratic legitimacy is irrelevant. Effective control is the deciding factor. This control is represented by the ability to govern and enforce public law. A lack of such effective control over a protracted time therefore delegitimizes an entity. This strongly calls into question its Assad’s authority to invite other states for assistance.

This approach to legitimacy, according to Professor Crawford (who is widely cited by other scholars) arises from a development of international law on statehood. Though the Montevideo Convention (1933) sets out the criteria for what constitutes a state, it has several problems. It is of poor geographical and numerical representation as it was only accepted by various states in the Americas. Furthermore, it predates the formation of the United Nations which follows other developments, such as the emergence of self-determination as a principle, and de- colonisation of Asian and African states.

Russia’s approach

The international community has not been quiet about Syria. Asides from the Geneva Communiqué of 30 June 2012, and despite the lack of a Security Council resolution addressing intervention itself, an International Syria Support Group, including the U.S., UK, China, the EU, the UN and other major powers has been formed to facilitate a ‘political solution’ through negotiations between the warring factions within Syria. The Security Council has passed resolutions such as 2254 (18 December 2015) S/RES/2254 endorsing this. This does not mean the Syrian Government is illegitimate, just that the transitional Libyan Government has officially declared it does not recognize its authority. In this particular case, state practice does not live up to the ‘democratic criteria’ scrutiny, but still acknowledges the Syrian opposition and need for some sort of negotiation. This approach can be argued to be in line with the general aims of the UN Charter, in facilitating dialogue and achieving stability: the result of a middle ground between the Security Council’s previous practice and the resolute stance of the ICJ over the years.

It would therefore seem that any actions regarding Syria as supported by the UNSC, and various other powers, are actions that promote negotiations, and therefore future stability in line with the provisions of the UN Charter. Although Russia’s intervention has been primarily in favour of the Syrian Government, it has shown a sincerity towards negotiations in the following ways: The Democratic Union Party of Syria, which has since announced a ‘federal region’ in the North applied through a highly decentralised form of government, has seen support from Russia as it opened a diplomatic mission in Moscow. It also called for its inclusion in any future negotiations regarding Syria’s political future. This was followed by a warning from Russia towards the Syrian Government for vowing to ‘retake all of Syria’ through a total military victory over all opponents.

Other signs of distancing have come from foreign minister Sergei Lavrov, who asserted that Russia is committed to fighting terrorism and supporting the Syrian state, but is not necessarily a “friend to Bashar”, making a specific reference to the dictator - drawing a distinction between the person and the state institutions.

Russia’s hand in the cessation of hostilities agreements between warring factions has also included requirements for moderate opposition groups to distance themselves from al-Qaeda, the so-called Islamic State, and any other groups deemed terrorist organisations according to the UNSC, or face military action. However, its actual conduct regarding this, and in general, is questionable or at least arguable.

Ultimately these actions represent an attempt by Russia to create (or be seen to create) an environment in which negotiations for a political solution for the future of Syria can take place between a “principled government”, and a “moderate opposition”. Therefore this is in line with the approach of the international community as a whole.

Concluding remarks

A difference is emerging between the practice of the ICJ and the UNSC .According to the ICJ, from a strictly international legal perspective, civil wars are an internal matter; a conclusion also reached by the Tenth Commission of the Institut de Droit International in its resolution on Present Problems of the Use of Force in International Law. However, the UNSC, which recognizes the globalised nature of terrorism and demands it be fought, has shown flexibility. The involvement of the so called ‘Islamic State’ in Syria and Iraq has certainly factored into the conflict. It may be argued that this qualifies the Syrian conflict as a “regional matter” instead of an “internal matter”. Yet, this is directly at odds with the non-interventionist stipulations found in the Geneva Convention’s additional protocols, as well as protocol II.

Russia’s intervention is therefore a question between traditionalist angles surrounding state sovereignty, and current challenges of fighting instability and global terrorism, compounded by attitudes towards self-determination, especially within the region. The ultimate measure may be its contribution to Syria’s people and their future, and whether its conduct is productive or unproductive in terms of stability. So far it has shown a tactful approach, yet this has been qualified by its intense military operations.

About the Author
Ziyad Hayatli

Ziyad holds a BA in journalism and philosophy, as well as a masters LLM in international law. He is currently interning at Amnesty International's Middle East and North Africa Programme; assisting the team with research and Arabic interpreting.

Article picture: Alabaster statue of the Hope by Jacques Du Brœucq L'Espérance.

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