The Airstrikes on Syria: the Syrian Government’s perspective.

Disclaimer: this blogpost attempts to look at the Syrian conflict, more specifically, Airstrikes by several global powers including the US and the UK, from the point of view of the Syrian government. This blogpost will also attempt to represent the Syrian government in terms of legal arguments but also using the language it typically uses. However, this post is not meant to endorse either the actions of the Syrian government or their arguments. It only attempts to present a different view of the airstrikes that is not in the mainstream debate.

President Bashar El Assad has recently decried the airstrikes conducted by the United States and its allies against Syrian territory calling it ‘illegal’ and will end up exacerbating the situation by creating more radicalisation. It is an established fact that Syria, represented by its government, is recognised  by the United Nations and is a member of its General Assembly, has refrained from the use of force in dealing with other states during its civil unrest beginning in 2011. While the US and its allies have committed various violations of international law with varying degrees of severity.

Argument Against Self-defence

The concept of self-defence was expanded to include anticipatory self-defence as well as reprisals after 9/11. More justifications were made by powerful states in order to skirt international law and was supported by apologist scholars, such as the widening of the principles of attribution. Megret argues in his piece “‘War’? Legal Semantics and the Move to Violence” that after 9/11 there was a movement to exceptionalize conflict by using the word ‘war’ in order to justify violating international law and to move away from the strict letter of the law. He argues that states are the primary actors when it comes to armed conflict. Aggression, which warrants a response, can only come from states as opposed to non-state actors. This has been supported by the Nicaragua Case (paras. 246- 249) as well as the Advisory Opinion on the Separation Wall (paras. 138-141)

The US has done this in Afghanistan and now in Syria where it is committing an act of aggression against the Syrian people and desires to change the political system by doing so. In terms of self-defence, according to Megret, the response is meant to be both immediate and necessary and it is certainly not anticipatory. The attacks by ISIL though completely unfortunate and deplorable do not warrant an attack on Syrian territory, being as self-defence works only if  an attack is imminent and its response immediate and necessary. This is also supported by Article 51 of the UN Charter as well as the Caroline test. Syrians were the first ones to be affected by the terror of ISIL and yet they have attacked no one.

Furthermore, Megret argues that the US has expanded the definition of responsibility to justify its attack on Afghanistan by claiming that the Taliban was harbouring terrorists, which is not an action that prompts self-defense. According to the Nicaragua test, the International Law Commission Draft Articles on State Responsibility, even the wider Tadic Judgment, which all require some form of effective control with varying degrees of responsibility do not put the Syrian government under any kind of legal imputation.  ISIL is not in any way controlled by the Syrian Government. In fact, it is the Syrian government which is fighting ISIL with men on the ground. From another perspective, if any country wished to fight ISIL, it must be done with coordination and according to particular conditions with the Syrian government as is pointed out by General Assembly Resolution 3314 as well as several ICJ rulings, and not carrying out such terms would also constitute aggression.

Illegality of Supporting Rebels and Airstrikes

It is also an established fact that Syria has been fighting terrorism within its borders by those who wish to destroy the Syrian state, represented by the Un-Islamic State in Iraq and the Levant as well as several other terrorist organisations, some of which are supported by Western powers such as the US, France, and UK as well as some Arab states including Saudi Arabia, Jordan and Qatar. They have supplied the Supreme Military Council, a terrorist organization, with non-lethal weaponry, lethal weaponry as well as food and training. The very fact that Western powers support and fund such organisations is a violation of state sovereignty and political independence. Not only are the US and its allies supporting terrorist organisations, they have said time and time again that the government under Bashar El Assad cannot stand. This all comes in direct violation of Article 2(4) of the United Nations Charter which states that ‘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…’ 

Moreover, support to terrorists brings into question the Nicaragua test on effective control. The US and its allies may very well be exercising effective control over the Supreme Military Council and perhaps other groups of rebels. If indeed this is the case, this would  constitute an armed attack, which would warrant a proportionate action in self defence. However, the Nicaragua Case clearly that supporting rebels against the government is a clear violation of non-intervention. Even during a civil war, states are not allowed to intervene without the express consent of the government. This is confirmed in paragraphs 42-52 of DRC vs. Uganda, which establishes consent as a necessity for intervention in civil wars.  While no clear rule exists on supporting opposition in a civil war. Russia, an ally, has obtained the Syrian government’s permission to fight ISIL and was allowed to help in the Syrian struggle against terrorism. However, if a state or a group of states, whether supported by the Security Council or not, simply decides to enter Syrian territory without its consent, under all definitions it would be regarded as aggression. The Nicaragua case clearly faults the United States for its interference in Nicaragua when it used similar arguments.

The airstrikes conducted by the US and its Arab allies prior to the UNSC Resolution 2249 of November 2015 are not only a violation of the UN Charter and general international law but they also constitute aggression according to the United Nations General Assembly Resolution 3314. According to Article 3, ‘bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State’ is regarded as aggression, which is also described as a crime against peace.

bashar_al_assad
Wikipedia

It would be remiss not to mention Security Council Resolution 2249 of November 2015, allowing for such actions to take place. It is the view of the Syrian government that such a resolution is in fact illegal according to international law, for the Security Council is ultimately a political body seeking out the interests of its member states. Therefore, like every other political body, it must be bound by international law. The claim of aggression is not entirely invalidated by the Security Council Resolution, the Security Council must respond to other claims of violations of international law, which has taken on a much looser interpretation to fit the whims of the powerful. The Security Council is bound in its powers, as confirmed by the Chamber of Appeals in the ICTY as well as the International Court of Justice in 1995 and 1948 respectively. This power is at the very least bounded by the provisions of the UN Charter as well as its object and purpose. This can be seen as a possible way to challenge Security Council action based on a number of provisions in the Charter, including Article 2(4) and Article 2(1) on self-determination as the US and its allies have repeatedly supported rebels and stated that the downfall of the regime is necessary.

Nuclear Apocalypse is not Illegal ?!

nuclear_explosion

One of the great fears that face humanity nowadays is related to the question of whether our species is going to stand the test of time, or go extinct like many others. From the many versions of how our civilization is going to end, the greatest fear of all is self-destruction through the use of nuclear weapons. Nuclear apocalypse was and is still present in the imagination of our cultures. As a result of that, one would expect the international community to have a very firm view on the illegality of the use of such weapons of mass destruction. Surprisingly enough, the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons was actually inconclusive. I am going to argue against this ambiguous opinion of the ICJ. I am going to clarify the reasons why the ICJ’s opinion should have been definitive on the illegality of the threat or use of nuclear weapons no matter what. Although this advisory opinion was in July 1996, I think we need to reemphasize the issue again. The reason for this is that we are living in a more insecure world. There is more Climate Change problems which are affecting the economies of many countries. Also there are more religious and political conflicts. All of this sets the world for more competition and more rivalry, which should make us wary of the danger of the existence of nuclear weapons.

According to the advisory opinion of the ICJ, the threat or use of nuclear weapons is generally contrary to the principles of the international law with the exception of the extreme cases of self defense. This is demonstrated in point (E) of the second clause of the dispositif;

It follows from the above-mentioned requirements that the threat
or use of nuclear weapons would generally be contrary to the rules
of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law;
However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake

The controversy of the point of extreme case of self defense is clarified by the voting on this clause, as it was seven votes to seven by the president’s casting vote. This controversy one would expect from a political discussion not in an opinion of the ICJ. This point is the main direction of my critique, but there is also point (B) in the same clause in which the court states that;

There is in neither customary nor conventional international law
any comprehensive and universal prohibition of the threat or use
of nuclear weapons as such

From the court’s point of view the fact that nuclear weapons have grave effects on the environment does not conclude the total ban of their use in certain circumstances. It is because the environmental concerns can possibly  be tolerated if there exists the requisite military necessity. We can accept this if the effects of nuclear weapons are of limited effect and can be contained, but it is obvious that the effects of nuclear weapons cannot be controlled. These effects are of great and massive effects not preceded by any other type of weaponry. Thus their effects on the environment do not concern just the parties involved in the conflict; they involve the whole planet.

According to the ICRC, international humanitarian law bans the use of weapons which cause superfluous injuries or unnecessary suffering by their nature. Although IHL does not explicitly ban the threat or use of nuclear weapons, but the very nature of these weapons contradicts with the ban of superfluous or unnecessary suffering. The use of nuclear weapons also contradicts with the principles of protecting civilians in armed conflicts, as they do not discriminate in their destruction. This is because even if they are targeted in a way to only achieve military objectives, their effects such as radiation cannot be controlled. They might also violate the right of neutrality, as they might harm other states that are not party to the conflict.

As for the point of using nuclear weapons in self defense, it is known that any state in using its legitimate right of self defense has to follow the principles of necessity and proportionality. The ICJ does not clarify in its opinion the difference between the extreme case of self defense and the normal case. This is a new type of classification originated by the court. Perhaps the court meant to explain this by inserting the phrase ‘when the very survival of the state is at stake’, but even this is a very vague statement. It can be interpreted differently which contradicts with the purpose of the advisory opinion. May be what is meant is the case when the state is facing a nuclear attack. In that case, I do not see the reason for the probable legality for their use of nuclear weapons as a means of defense. Nuclear weapons by their nature can only be used for offense. If we assume that a state is being attacked by a nuclear weapon, how can it use a nuclear weapon to defend itself? It would be an act of reprisal that is not allowed by international law. The argument that an attacking state will learn that it will be equally damaged if it uses a nuclear weapon is not a good argument or else we can use it to justify any reprisal actions.

My critique can be wonderfully represented in the dissenting opinion of judge Weeramantry in which he states;

My considered opinion is that the use or threat of use of nuclear weapons
is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

He is on the firm ground that the court should have settled the legal question in favor of banning the threat or use of nuclear weapons under any circumstances.

In conclusion, the topic in question clearly shows the indeterminacy of international law on the matter, which clearly shows the need for a direct global cooperation on the general ban on the threat or use of nuclear weapons under any circumstances. The use of such weapons is not of the concern of the individual wills of states, it is a matter of global importance and the political consideration should be put aside in such an issue that involves the survival of our species and our whole planet.

Is the Principle of Negative Equality in Civil Wars Still Valid? An Analysis of “Decisive storm” Under the Law of Armed Conflict

http://www.bbc.com/news/world-middle-east-29293849
http://www.bbc.com/news/world-middle-east-29293849

Although the beginnings of the Arab Spring’s revolutions might seem similar, their evolutions are totally different; the Yemeni revolution is no exception. The situation in Yemen has recently evolved dramatically, leaving the state in a civil war. This leaves limited choices for the legitimate Yemeni president Hadi to seek foreign assistance. Based on the invitation by President Hadi, a Saudi Arabian-led coalition constituted of ten Arab states launched a military operation against the Houthi rebels known as “Decisive Storm”. Although the traditional “negative equality” doctrine of international law prohibits intervention in civil wars on either side of the parties, I argue in this post that there is no room for applying this principle in the Yemeni case for two reasons: first, I believe that the principle itself is no longer applicable in contemporary international law, second even if it is, the Yemeni case lacks the requirements for the application of this doctrine.

The principle of the prohibition of intervention in civil wars emerged in post Cold War era based on 1975 resolution of the Institute de Droit International (IDI), in an attempt to limit military interventions and the use of force by superpowers in internal conflicts and in order to guarantee self-determination. However, this previously mentioned resolution allows two exceptions, which are the provision of humanitarian aid in art (4) and the response to unlawful foreign intervention in art (5).

The principle of “negative equality” is no longer applicable

Recent state practice as analyzed by Dapo Akande & Zachary Vermeer here   breaks with the general rule of non-intervention in civil wars. This state practice indicates that third states can lawfully intervene alongside with governments with or without the latter’s consent in cases of terrorist attacks. Examples include the French intervention in Mali based on an invitation from the Malian president which was reflected under UN SC Resolution 2085 which affirmed that assisting Mail is based on respecting its sovereignty. Other  examples  are the US led coalition against ISIS in Iraq and Syria backed by the Iraqi president’s invitation and the US intervention in Afghanistan in 2001 with no condemnation from the international community.

This practice has been further developed in cases that fit with the magnitude of human tragedy to fall under a broader concept of R2P without any invitation. Examples include the intervention in Iraq known as “Desert fox operation in 1998, Kosovo in 1998, Georgia in 2008, Libya in 2011, and the recent intervention in Iraq to rescue the Yazidis in 2014.

The principle of negative equality does not apply in Yemen.

The principle of negative equality lacks the basis for application in the case of Yemen. First, tracing the history of the principle and the reasons behind it proves that it is driven by the necessity to limit intervention by superpowers in order to pave the way for exercising self-determination by the opposition when they seek it. In addition, according to IDI Res 1975, if a foreign state unlawfully intervenes with the rebels, it allows a third state to lawfully intervene alongside with the government. Finally, the effective control test might not be the sole test for deciding the legitimacy for presidents in contemporary international law.

Self-determination

 

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

The principle of non intervention in civil wars is a purpose–based norm that seeks to guarantee peoples the right to exercise self determination as expressed in the UN Human Rights Covenants of 1966 and in GA resolution 2625 (XXV). In the context of civil war, peoples should have the right to choose their own governments without interference by third states, which was clear in the articulation of Art 1(a) of IDI Res 1975. According to the language of the article that describes rebels as “insurgent movements”, those rebels should be seeking self determination and to be supported by a significant part of the population, which was affirmed by M. Dietrich Schindler in his interim report presented at the IDI session in Rome in 1973:[1]

“..assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added).

In addition, Georg Nolte and Doswald-Beck argue that third state intervention, even by consent, is unlawful if it is against the expressed will of a significant part of the population such as in uprisings which meet the requirements of the right to self-determination. By applying these criteria to the Houthis, although that they have effective control over a significant part of the territory, they are not supported by a significant part of the Yemeni population which does not represent an exercise of self-determination. To illustrate, although the religious sect (Zaydi) which most the Houthis are affiliated to, represent about one third of the Yemeni population, not all the Zaydis are supporting the Hountis.

Counter- intervention

http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg
http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg

 

One of the exceptions to the non-intervention in civil wars principle is the case of counter intervention as expressed in Art(5) of IDI Res 1975. To illustrate, if a foreign state intervenes on the side of the rebels in any of the ways expressed by the resolution which vary from military to financial to economic support, this gives third states the right to intervene on the side of the government. Therefore, the Iranian arming of the Houthis is considered unlawful intervention according to the ICJ judgment in Nicragua Case where the court considered arming the rebels as unlawful intervention. In addition, according to Hojatoleslam(a Shiite clerical rank just below that of Ayatollah and a representative of Supreme Leader Ayatollah Ali Khamenei to the Iranian Revolutionary Guard Corps (IRGC)), Yemen has become an area of their territorial hegemony, which was later affirmed by Ali Akbar Velayati, the foreign affairs adviser to Khamenei(and was further analyzed by Aliaa Makady here in this blog). In addition, there is a Yemeni evidence- based claim affirmed by Reuter’s investigations of the Iranian support to the Houthis with no official declared denial from Iran. Therefore, this triggers the lawful right of the Yemeni government to seek assistance from third states, which is what happened in the “Decisive Storm” operation by the Saudi Arabian led coalition.

Invitation by the president

After the adoption of the United Nations Charter, there has been a debate concerning the legality of intervention by invitation. Christine Gray, argues in her book “International Law and the Use of Force” that consent by the government does not legalize state intervention in a civil war with two exceptions either UNSC authorization or a counter intervention.On the other hand, Yoram Dinstein’s argument is that state practice, such as the French intervention in Mali or US airstrikes against ISIS in Iraq and Syria proves that consent by the government may legalize intervention. This position was affirmed by ICJ in the Nicaragua Case:

“…it 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.”

Furthermore, there has been a debate over the existence of “effective control” standard over Yemen by the president Hadi in order to determine his capacity to consent for intervention. State practice shows that this standard is not always decisive; there are some cases in which the international community disregarded territorial effectiveness and replaced it with accepting the internationally recognized governments, such as Somalia and Libya.

To sum up, the situation in Yemen reached the edge of a civil war and the threshold of a human tragedy. However, there is no room for applying the principle of non- intervention in civil wars because state practice in the contemporary international law showed that it is no longer applicable. Second, even if we were to assume that this principle is still valid, there are three reasons to disqualify its application in the case of Yemen: first the “Decisive Storm” operation falls under a counter-intervention in response to Iran’s prior intervention on the side of the Houthi rebels. Second, the Houthis lack support by the Yemeni people, so there is no room for a claim of self determination, and finally, the effective control standard is no more the sole determinant of the legitimacy of presidents in having the capacity to consent to foreign interventions.

[1]IDI Year book, 468, 1973.

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.

Egypt’s Military Assistance to the Libyan Government: Legal or not?!

download In the midst of the chaos of the Arab Spring, there have been multiple uses of military force in the internal conflicts by third state parties. Some of these interventions raise questions about their legality according to the international law on the use of force. According to the traditional doctrine in international law, there are only two exceptions to the ban of threat or use of force between states. The first of these two exceptions is the collective use of force by the willing state members according to article 42 of the U.N. Charter in chapter VII, which is under the measures taken by the Security Council. The second exception is the inherent right of self defense according to article 51 of the U.N. Charter. Nowadays, it seems that this classical restrictive view is changing, as there is a third exception on the rise among state practice and supported by the I.C.J jurisprudence. This exception is related to the foreign military intervention by the invitation or consent of the government. It is usually referred to by international lawyers and legal scholars as intervention by invitation. The problem with this new practice is the case of civil war, which raises the question of which government has the authority to consent. There is also the question of the threshold that classifies internal conflicts into civil war and whether or not intervention is allowed in civil wars even with the consent of one of the parties.

-The argument of Consensual Intervention was used by the Egyptian government to justify the air strikes against ISIS militia in Libya. While it is clear that these strikes were a reprisal for the horrific murder of the 21 Egyptian Copts, the use of this argument was necessary due to the lack of legal justification for acts of reprisal against terrorism in international law. One of the bases of the Consensual Intervention argument is article 3 (e) of the G.A. Resolution 3314 on the definition of aggression which construes the following as an act of aggression: “The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement .” This clarifies that the uses of armed forces in that case which do not contradict the agreement with the receiving state are legal. Further support for this argument is found in article 20 of the ILC Articles on State Responsibility which states: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”

-The problem is, when there are internal armed conflicts, which of the parties has the capacity to give consent? Or does the consent of any of the parties hold any legal value in the first place? Eliav Lieblich in his paper, “Intervention in Civil Wars; Intervention and Consent” discusses these issues. He argues against the traditional view that rejects foreign military intervention during internal armed conflict. According to this view there should be no intervention during internal armed conflicts as all parties to the conflict have lost their capacity to represent the state and therefore do not have the capacity to give consent to foreign military intervention. Lieblich’s article describes how the I.C.J adopts the view that when the intervention is in favor of the government, it is not unlawful. The I.C.J ruling in the Nicaragua Case clarified the court’s opinion supporting the legality of intervention in favor of the government as it stated:

It 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. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law. 

This has also been reaffirmed by in the court’s ruling in the D.R.C v. Uganda case.

-In the case of the Egyptian air strikes in Libya, there seems to be a new lenient doctrine being adopted by the international community. This new doctrine is largely a result of the ongoing ‘War on Terror’. In Libya there are supposedly two governments plus the ISIS militia groups. The one which is mostly recognized by the international community is the government of Haftar, which is the one that supposedly requested or consented to the Egyptian air strikes. This government does not actually possess effective control over the whole Libyan territory, but the other groups controlling the rest of Libya’s territory are either terrorist groups themselves, like ISIS, or affiliated with terrorist activities. For that reason the whole effective control principle is being abandoned.

-Although this new state practice might be helpful in fighting a rogue terrorist organization, it also opens the way for the misuse of force and intervention in the internal affairs of sovereign states in future situations. This is especially true when there are interests to powerful states recognizing one of the parties to an internal armed conflict in order to be able to take forcible measures. This could also lead to bigger armed conflicts when there is a conflict of interests between powerful states each recognizing one of the parties, replaying Cold War scenarios.

-The Egyptian air strikes in Libya clarify a growing problem with international law. The problem is that the international community needs to further democratize its institutions to cure its ineffectiveness while facing the growing threats to international peace and security. The unilateral use of force should still be an exception, but with the uselessness of attempting to resort to collective measures of the Security Council, unilateral use of force could transform into the norm, which destroys the whole purpose of the United Nations in trying to preserve peace and security in the world.