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.
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.