Russia’s Intervention in Syria: A Legal Perspective
By Ziyad HayatliPublished 30 July, 2016
As the Syrian civil war surpasses its 5th year, international actors from Iran to Saudi Arabia and the United States have openly played their hands in its fate. It is however the involvement of Russia (a key actor) which has drawn the most attention on the world stage. The situation continues demand discussion on normative acceptabilities within international law pertaining to intervention
Russia’s involvement, which began in October 2015, was accompanied by commentary aired on U.S networks by Russian President Vladimir Putin. This took place prior to a meeting with President Barack Obama. President Putin intimated that Russian intervention would be legitimate as it amounts to aiding the legitimate Syrian Government, whereas the United States intervention within the region by supporting militants amounts to assisting illegitimate non-state-actors, and is therefore illegal.
This article will conclude that prima facie both of these remarks are true. Collective self-defence and consensual intervention between states ha been extensively covered in the Nicaragua case (1986) and the more recent Democratic Republic of Congo v. Uganda (DRC v. Uganda) (2005) case before the International Court of Justice (ICJ). Contemporary United Nations Security Council (UNSC) indicate the incumbent government may not always be subject to "democratic criteria". The agreed strategy towards Syria has been a middle ground between the two approaches. It is in this middle ground, and the factor of international terrorism, that Russia’s intervention finds uncertainty.
Non- Intervention - Collective self defence
Non-intervention is a principle of customary international law founded on the concept of the territorial sovereignty of states.This principle is also demonstrated by two major UNGA resolutions: Firstly, UNGA Resolution 20/2131, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty. Secondly, 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.
The ICJ confirmed the position of non-intervention as a principle of international law in Nicaragua (para 73). 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. Nicaragua concerned the United States and its support of Nicaraguan contra rebels, who acted within Nicaragua against the Government and whether this support amounted to intervention, and in turn whether the intervention was illegal. The United States sought to plead collective self-defence. The justification for this, according to the Court, is found within the wording of Article 51 of the UN Charter which. This is subject to a number of caveats, including that the State in question must have been subject to armed attack by conventional or non-conventional forces, this must be declared by the State and the State must request support, thus consent by the state being defended.
The Court by 12 votes to 3, rejected this argument on the basis of a lack of evidence. It could not be established that Nicaragua was aiding El Salvadoran anti-government rebels
More recently, the case of DRC v. Uganda (2005) referred to the use of force as embodied within Article 2 (4) the UN charterwhich 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’.
The Court also reaffirmed the Nicaragua case in its reasoning and while coming to its conclusions, for example:
‘[...] the Court made it clear that the principle of non-intervention prohibits a State ‘to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State . The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of non-intervention ‘will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations’ (para 164). This reflects the firm stance the ICJ has taken on the prohibition of intervention without state consent in international law.
What can be said with a strong degree of certainty, is that the Syrian Government has lost effective control of territory (almost all of Eastern Syria). It is faced with armed groups that are mounting a sustained military campaign and 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 very clear. Most telling of all is that Russia's intervention in October 2015 has not been legally contested 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 Islamist groups, the Free Syrian Army (FSA), and Syria Democratic Forces (SDF).
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. The interest of UNSC members such as the U.S. to topple the Syrian Government conflict with that of Russia, as demonstrated by the exercise of its veto power against a UNSC referral to the International Criminal Court.
The nature conflict
The Geneva Conventions (1949) are the natural starting point for looking at international law in relation to the nature conflict. Additional Protocols I and II of the Geneva Conventions, which concern non-international armed conflict (i.e. civil wars), contain Article on non-intervention 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. These conventions then 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 is given to the existing government. This implies that in order for an actor to "invite" a third party into an internal conflict, it must be legitimate. Therefore, 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 period, 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 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 began justifying interventionism by defining internal unrest within states as a wider “threat to the peace”, and imposing a “democratic criteria”. Cases include Haiti; the deposition of president Aistide (1994) Sierra Leone the deposition of Kabah by a military coup (1997) and Cote D’Ivoire the prevention of democratically elected Ouattara from taking office after his election victory (2011). A more visible example of recent history has been the Mali case, whereby the UN Security Council, 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 one of the most heavily involved actors.
All of these resolutions mention democracy and democratic values, linking it to a wider peace and stability. They also represent an opinio juris and state practice, a rising trend in how states engage with civil wars and interventions by applying a certain ‘democratic criteria’.
The use of a political ideology, democracy, in binding UNSC resolutions - which opinio juris and practice of states in customary international law - can be seen as problematic. On the other hand, 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 expands this to a collective. However, it’s focus seems to be largely on the subject of colonisation, as it explicitly mentions foreign and alien authorities. Further, 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, it must always be held in consideration and with respect when a state, in this case an intervening state, is engaging in . 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 Council 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 an uncertainty in relation to Russia’s intervention. The nature of the Syrian Government a dictatorial, one-party state, or dare it be said - 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 can be degrading to Syrian self-determination. On the other hand, opposing the outright removal of the Syrian Government and preventing a power vacuum may work for longer-term stability; which is not only a political approach, but a key aim of the UN as set out in Article 1 of its Charter. This is a credible concern, as the U.S.-led invasion of Iraq in 2003 and its aftermath demonstrates.
Although the Syrian Government has held elections, though 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 their 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?’ whereby he uses various examples, from the decolonisation of Guinea Bisau 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 - calling into question its authority to invite other states for assistance.
This approach to legitimacy, according to Professor Crawford - who is widely cited by other scholars - comes 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: Firstly it is poor geographical and numerical representation as it was only accepted by various states in the Americas. And secondly, it predates the formation of the United Nations which follows other developments, such as the emergence of self-determination as a principle, and decolonisation of Asian and African states.
The international community has not been silent. 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 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, as only the transitional Libyan Government has officially declared it does not recognize its authority. In this particular case, state practice not ‘democratic criteria’, 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 seem, then, 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, Islamic State, and any other terrorist organisations, or face military action. Though 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 at least be seen to create) an environment 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.
A difference is emerging between the practice of the ICJ and 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 Institute 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 Islamic state in Syria and Iraq has certainly factored into this. One may also argue that this qualifies the Syrian conflict not 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 the current challenges of fighting instability and global terrorism, along with attitudes regarding 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 drowned out by its intense military operations.
About the Author
Ziyad holds a BA in journalism and philosophy, as well as a masters LLM in international law.
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