On Recognition: How the Arab Spring Skewed a Normative Practice

 The Arab Spring uprisings really did shake the region in many different ways. The first two countries, which were swept by protests, namely Tunisia and Egypt came out without need for, or suggestion of intervention. Libya and Syria, however, had quite a different experience. What looked like the beginning of an uprising, much like different Arab countries, quickly spiraled out of control and turned into a full fledged civil war, aggravated by international intervention whether through political recognition of rebel groups, materialistically supporting different factions, or physical use of military power. The reaction of many different states after the Arab Spring skewed away from the normative understanding of certain principles of international law. The most significant principle of these is recognition, particularly recognition of governments.

The principle of recognition is very important in this context, because International Humanitarian Law principally depends on the legitimate and recognized government to regulate use of force, and intervention from other states. Intervening on behalf of the recognized legitimate government, subjects the intervening countries to much less rigorous standards in the law of armed conflict than if countries intervened on behalf of a “rebel group”. That is why the issue of recognition and twisting the normative understanding of it, is an matter which needs to be understood from a legal perspective, not just as an issue of political support.

What is recognition?

The traditional, legalistic understanding defines recognition as “a method of accepting certain factual situations and endowing them with legal significance” as defined by Malcolm Shaw in his textbook, properly titled ‘International Law’ (6th ed. P. 207). Thus, it is fair to adopt the notion that the issue of recognition in international law had previously taken the form of recognizing the independence of newly formed states. International law was neutral to the dispute of changes in governments within states, as it was considered an internal matter. Recognition of states by no means a simple issue, nor does it take merely a legalistic position, without considering the political one as demonstrated in CGP Grey’s video on recognition of states. On the other hand, recently, recognition also came in the form of recognizing governments of states that are already established and independent, and this is what I intend to focus on in the post-Arab spring political moment.

Of course the two types of recognition can intertwine and it is important to keep that in mind. In 2010, the ICJ gave an Advisory Opinion on the Declaration of Independence by Kosovo. The court deterred from answering the awkward issue of secession, and opted to focus on the very action of declaration of independence by Kosovo by a minority group, and it deemed it legal under international law. However, they did not explicitly say whether Kosovo should gain independence and be recognized as a state or not by the international community in support of this minority group. This type of “intertwined” recognition status is quite important for issues of self-determination particularly internal self-determination. Internal self-determination is defined as “may refer to various political and social rights” as defined by the LLI of Cornell University Law School. This is critical in the discussion of the legal position of the Syrian rebel groups, as will be discussed in the section on Syria’s SNC.

Both types of recognition, whether it is the declaration of an independence of a state or recognizing rebel groups as the legitimate government of certain states have always been a sour note in international law, particularly by the Security Council. In1965, when Southern Rhodesia declared independence from the UK’s colonial domination, the Security Council issued multiple resolutions (Resolution 202, Resolution 216, Resolution 217), which “regard[ed] the declaration of independence by (the Rhodesian government) as having no legal validity”. The resolutions dismissed the entity that declared independence, as a “racist minority”, although that entity was the de facto government, as Southern Rhodesia had been self-governing since 1922 and had all four aspects, which qualified it as an independent state, under article 1 of the Montevideo Convention on the Rights and Duties of States. Independence was later granted in 1980 to what we now know as Zimbabwe.

Fast forward to 2001, state practice was still completely disregarding so called “rebel groups” as the representatives of a country, regardless of their actual control of the territory. The line between de facto control of a certain territory, and the international de jure government and diplomats did not always meet, particularly with Afghanistan. Ever since their emergence in 1994, the Taliban was effectively taking control of the country after the old soviet-backed regime collapsed. The Taliban went on to have de facto control over 90% of the country; however, they were not internationally recognized as the legitimate government or the legitimate representatives of the people, even though the Security Council obliged them to adhere to the Geneva Conventions, in article 12 of Security Council Resolution 1193 (1998).

 

“Legitimate representative of the people”

PLO Leader Yasser Arafat in the UNGA in 1974
PLO Leader Yasser Arafat in the UNGA in 1974 (Photo Credit: palestineun.org)

A certain practice seems to have been popularized post/during the Arab Spring where states and international organizations have been declaring that a certain rebel group is the “legitimate representative of the people” of a certain state. It started with the National Transition Council (NTC) in Libya, and then the Syrian National Council (SNC) was also recognized in Syria in the same manner as in Libya. What is surprising is not just that they recognized rebel entities, but that most countries recognized them as the legitimate representatives of the people, NOT the official government of the state. What does “legitimate representative of the people” mean without being the recognized government?

The first time this term was used was in the recognition of the Palestinian Liberation Organization (PLO) as the legitimate representatives of the Palestinians under UN General Assembly Resolution 3210 of October 1974. This was reaffirmed a month later in Resolution 3237 when the PLO was admitted as an observer entity in the UN. This status was given due to the fact that Palestine did not qualify as a state in accordance with the Montevideo convention, hence, it cannot be treated as a full sovereign government, yet they possess the right of self-determination. The term “legitimate representative” was used as an answer to an awkward situation, when certain groups of people clearly have the right of self-determination, but did not have the right to the status of statehood. Post 2011 however, it became the go-to term to express disapproval of regimes in states, and supporting a different entity in their claim to govern that state.

To break it down, recognizing an entity as a legitimate representative of the people, while not recognizing that they are the legitimate government of a territory, is reminiscent of colonial times. This is when liberation groups existed within a non-self-governing territory, which was under “colonial domination, alien occupation and…racist regimes in the exercise of their right of self-determination” as described in the ICRC Additional Protocol I, perhaps as the first step in recognizing the independence of these entities.

The problem in this description is that, even though Libya and Syria were confronted with serious rebellion, and the legitimacy of the regimes in both countries was and is seriously in question, yet placing the rebels within the same understanding of entities aiming for state recognition is a bit of a stretch, as their state is already recognized, here have been many “local” dictators before, yet the international community did not rally behind an armed faction for “Self-determination” unless succession was in question. This obviously changed in the cases of Libya and Syria, and in order to understand the reasoning behind this unconventional declaration, the events that followed this statement of the peoples’ legitimate representation, should be examined.

Libya’s NTC

NATO and THE Libyan NTC. (Photo credit: Al-Akhbar English)

On 10th of March 2011, around a month after protests and armed civil unrest started in Libya against the country’s dictator, Colonel Muammar Gaddafi, the French president, Nicolas Sarkozy declared the National Transitional Council (NTC) is the “sole legitimate representative of the Libyan people”. This came with a movement of support from the US and EU countries towards the NTC. The United States went as far as discussing with congress the possibility of allocating Libya’s frozen assets from Qaddafi’s regime to fund the NTC according to an official statement made by Mark C. Toner, the Acting Deputy of the US State Department. However, recognition of the NTC as the legitimate government was an issue, which the US was still concerned about from the legal point of view. On the 11th of April, the US Ambassador in Libya stated:
“Recognition remains a legal and an international obligations issue that we’re still studying, and we have not made a definitive determination on that question. But that has not stopped us from doing everything that we could to support the NTC and the Libyans”.

 

On the other hand, recognizing an entity as a legitimate representative of the people does not need the rigorous criteria that are put forward when recognizing an entity as the legitimate government of a state, particularly when it was not a fully democratic process that brought that entity to power. One thing is certain though, once there was recognition that the NTC is the legitimate and sole representative of the people, any form of friendly relations with the (at the time) existing regime, were cut. This is based on the principle of sovereign equality of States as stated in UNGA Resolution 2625 on the principles of friendly relations among states.

There were many question marks over this step, like, what does this recognition mean from an international law perspective? Does the fact that the NTC effectively took the seat of Libya as the country’s representative in the UNGA equate to them acting in the name of the state on the international platform? And most importantly, does this give the NTC the right to invite another government to intervene militarily in Libya?

UN Security Council resolution 1973 called for a ceasefire from all Libyan entities and return to diplomacy, however, it was used as the pretext for the NATO intervention in Libya, which completely skewed the conflict in favor of what became the NTC. The legality of NATO’s intervention was not questioned. However, Professor Noam Chomsky argued in an interview that NATO clearly violated the resolution, as they were the first to break the ceasefire. On another note, the US Secretary of State during the crisis, Hilary Clinton, stated to CBS news channel that arming the NTC would be legal under resolution 1973, even though resolution 1970, article 9 clearly prohibits the arming of Libyans according to a BBC article. The question of whether or not the rebels (yet legitimate representatives of the people) are included in this arms embargo or not, had NATO split on the topic. It seems that the NTC fit whatever position was deemed appropriate at the time, and this was paved by such an ambiguous recognition.

Syria’s SNC

SNC President Ahmed Jarba, center, Heitham Al-Maleh, left, and Salem Al-Muslit, Right, Press Conference at British Foreign Office in London Oct. 22, 2013 (Photo Credit: Times of Israel)
SNC President Ahmed Jarba, center, Heitham Al-Maleh, left, and Salem Al-Muslit, Right, Press Conference at British Foreign Office in London Oct. 22, 2013. (Photo Credit: Times of Israel) 

The situation in Syria is still progressing daily, and it seems like the conflict has reached the point where the legality of any action would be placed into question. However, let us examine the situation from the beginning in order to understand the intention and gravity of what followed, and let to the current pandemonium. In October 2011, the Syrian National Council (SNC) was formed from the “internal and exiled opposition activists”, as reported by the BBC. This came after months of military brutality against opposition groups rallying against the Syrian president, Bashar Al-Assad.

By 2012, many countries, including the United Kingdom, recognized the NTC as the sole and legitimate representative of the people. Foreign Secretary of the UK, William Hague gave a speech in the parliament, in which he declared Her Majesty’s full support and recognition of the SNC as the sole and legitimate representative of the Syrian people. In the speech, he additionally established the bases by which their foreign relations will continue moving forward. He stated that, with recognition, comes the responsibilities of the SNC to “uphold their commitments”, though he did not say whether these included observing international conventions and treaties or not. He also stated that the SNC would have a political representative in the UK. Finally he pledged a large id package to the SNC controlled areas (with the Hear, Hear! of the parliamentarians in the background).

Now going back to the same starting point of the Libyan crisis of this odd recognition being reserved to peoples fighting for self-determination, even with the objection to Bashar Al-Assad’s regime, it would be stretching it to say that it is a racist regime, legally speaking (notwithstanding my personal opinion on the atrocities which were committed in Syria). However, for argument’s sake, let’s assume that this really is an issue of self-determination of a people within an established state. Firstly, we need to look at the International Covenant on Civil and Political Rights (ICCPR), in the first article, it states:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

The case of the SNC makes sense when the second article is examined, where it is stated that:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Now it can be argued that the Syrians are seeking self-determination internally, and that is through the SNC as their representative. In that case, the principle of non-intervention does not apply in the same way that was presented in the ICJ ruling of the Nicaragua case, where it was it was deemed that any form of arming or supporting a rebel group is considered illegal. On the contrary, in UNGA Resolution 35/227 (1981), on the question of the self-determination in Namibia, Article 6 clearly encouraged other states to support South West Africa People’s Organisation (SWAPO), in “material, financial, military and other assistance”, in its pursuit of self-determination. It seemed that this is the direction other states have agreed to follow, since the US’s Military and the CIA have agreed to train and equip the Syrian opposition and the legality of this action has not been contested.

Conclusion

             To conclude, it is safe to assume that 2011 onwards saw a swift change in the practice of international organisations, UN organs and Western states regarding the recognition of rebel groups. Furthermore, the arming of opposition groups has been a ‘right’ that many countries have maintained and argued strongly for, particularly in self-determination conflicts. However, as the conflicts in Libya and Syria linger, and the atrocities of war seem to be normalized every day, the question remains as to whether more intervention will actually end these conflicts any quicker.

Operation ‘Decisive Storm’: Between Collective Self-Defense and Legal Ambiguity

The Yemeni conflict is taking headline news. It’s not that Yemen is usually considered peaceful. On the contrary, Yemen has long been plagued by a series of conflicts, natural disasters, political changes, unification and separation movements, more than most countries. However, even while being the Gulf Cooperation Council (GCC’s) troubled child, it came as a surprise to many when 10 countries declared war on Yemen, lead by Saudi Arabia(KSA). Understanding the Yemeni conflict is far more complicated than this blog post would allow me to explain. However, what is important to understand is that Iranian-backed Houthi rebels attacked and took over the country from KSA backed President Hadi, and KSA and the ‘Decisive Storm’ coalition maintain that their involvement to right the wrong done by the Houthies is lawful under international law.

Al-Arabiya news Collective and IndividualSelf-defense

Saudi Arabia has been very clear about the fact that this military action has an element of self-defense. The Gulf Cooperation Council recognized that the heavy artilleries military drill, conducted by the Houthi rebels on Thursday, 12 March on the Saudi-Yemeni borders was hostile behavior. Both the timing and the method of those drills are seriously called into question. From a legal standpoint, the argument in favor of Saudi Arabia would claim that the actions of the Houthies were a threat of use of force, which, according to UNGA resolution 2625, such a threat “violate the existing international boundaries of another state”. Those “drills” came with Saudi claims that Houthies have attacked their army before on the borders according to Reuters. Under such circumstances, Saudi Arabia can claim their inherent right of self defence under article 51 of the UN charter. The biggest flaw of the Saudi directed argument is that according to both Saudi Arabia and the international community, the Houthi rebels are an illegitimate militia, and hence, do not act on behalf of the state. Although article 51 does not specify that an armed attack needs to occur by a state, UNGA resolution 2625 assumes that a state would be the entity, which “threatens” the use of force, not an armed group. Hence that claim standing on its own does not provide enough ground for Saudi Arabia alone striking in Yemen. However, this is only the beginning of the justification.

The main threat is Iran’s involvement in the conflict. Iran unlawfully arms the Houthi rebels in Yemen, as well as support them ideologically. This is illegal, as arming and controlling a militia inside a country is considered infringing on state sovereignty, but Iran is not particularly shy about it. High religious clerks have been openly declaring that Yemen is within their sphere of influence. Houthi militias, on that note, progressed into Yemen, increasing their territorial control. Iran’s actions violate international law on many different aspects. First, arming paramilitary activities in another state, especially for the purpose of extending their political influence, violates any bases of friendly relations proposed in UNGA resolution 2625. Secondly, extending military aid to a certain militia for a specific political (or any other) reason is considered an act of aggression, according to the UN’s Definition of Aggression (Res. 3314, art. 3(g) & art. 5.1). Lastly, in the International Court of Justice case on Nicaragua, it was decided by the judges that the United States was violating international law “by training, arming, equipping, financing and supplying…or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State”. This was seen as grounds for collective security; as such intervention in Yemen by Iran was considered a threat to the peace and security of the entire region due to Yemen’s geographical position.

The response came swiftly from Saudi Arabia. In a collective response, Operation ‘Decisive Storm’ witnessed perhaps the strongest Middle Eastern coalition of forces in history. Ten countries mobilized to strike strategic regions in Yemen. Also, Egyptian maritime forces were sent to protect the Gulf of Aden from any threat of closure from Iran and Houthies. The Arab League Heads of State summit, which followed, cemented the principal of collective self-defense by agreeing to create a “joint Arab military force”.

Operation Decisive Storm is being advertised as the last solution to a draining conflict in Yemen. The Gulf Cooperation Council has sponsored the Yemeni issue since 2011, starting many “initiatives”, which have ended in very little success because Yemeni factions continue to fight. More importantly, with the Houthi rebel’s swift accumulation of power on the ground, Saudi Arabia depicted Houthies as a threat to regional and international peace and security, after they became so close to controlling the Gulf of Aden. Additionally, operation ‘Decisive storm’ arguably took place when the threat was imminent, leaving no time for deliberation. It was also necessary as there were no peaceful means to solve this conflict, hence, following the US rhetoric on the preemptive use of force. The biggest problem with such a claim is that the Security Council did not get involved, let alone authorize the use of force in Yemen. This did not rally much criticism towards Saudi Arabia, even though there is a draft resolution being proposed in the Security Council on the conflict in Yemen with the Russian Federation holding a humanitarian stance, rather than a legal one, against the strike.

In both cases, however, there has not been a direct attack on either Saudi Arabia or other countries. However, the issue is being presented as though the Yemeni-Iranian attack is imminent. Under those circumstances, this is a pre-emptive self-defense, and the legal literature behind the legality of such attacks is covered intensely over the Iraq war of 2003. Even if such an attack is legitimate, is the response from Saudi Arabia a proportionate and deterrent response? It is far too early to constructively build an argument either for or against the Saudi-led attacks.

Intervention at the request of the legitimate president

It seems that this has been the new method by which countries justify intervention lately Saudi Press agencyin order to adhere to international law, and you cannot blame them. Intervention based on the request of the president or ruler of one state to suppress non-state rebel groups is perfectly legal under international law. In fact, countries like Egypt, and even Russia went though great lengths to confirm that the use of force in Libya and Crimea, respectively, were justifiable based on the presidents’ or legitimate rulers’ request.

The “legitimate” president of Yemen, Abdrubbuh Mansour Hadi, who has resigned when surrounded by Houthi rebels then retracted his resignation when he walked free, looked surprisingly elated upon reaching Saudi Arabia, after spending a few days in hiding. Firstly, there are question marks over his legitimacy as the president of Yemen, as he first resigned in January 2015, when Houthi rebels took over Sanaa, the main capital. He later rescinded the resignation, stating that he took this step under pressure from the rebels however this was prior to his request from the international community to intervene. Secondly, the level of conflict that was occurring prior to the Operation Decisive Storm was dire, to say the least, as expressed in the UN Security Council Resolution 2204 on Yemen, with multiple “terrorist” and paramilitary entities gaining effective control of major parts of the country. President Hadi’s decision to request intervention as he leaves Yemen for Saudi Arabia questions his control and influence over Yemen in the first place. Lastly, with President Hadi having little control over his country, is the situation in Yemen a civil war gone international? Nevertheless, Hadi further reiterated his request at the Arab League Heads of State Council in Sharm el-Sheikh, Egypt, last Saturday.

To conclude, it is important to understand that the Saudi/Arab Coalition involvement in Yemen is fairly recent. The legal questioning, let alone the justifications, have not been drawn out yet. It is, however, important to question the legality of the collective self-defense mission in Yemen, against the proxy-Iranian militia, with a political motive, under an ideological shroud. Additionally, the different interpretations, which will be given to this collective self-defense action versus the western-led ones, would be an interesting issue to observe. Finally, it is important to note that civilian casualties do occur, and hence, the humanitarian legal aspect should always play a part when assessing the success or failure of the operation.