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.

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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.

The legal framing of the Egyptian military intervention in Libya

I never thought I would be writing about an Egyptian military intervention into another country in my day and time, but the dramatic changes and developments in the armed conflict in Libya has posed the question of whether Egypt’s role in this situation was legal or not. At the same time, the question of which doctrine of the international law Egypt can use to justify the Airstrikes on Da’esh is raised – whether the self-defense and or protecting citizens abroad or assisting another state.

On 15 February 2015, a video was released showing images of 21 kidnapped Coptic Egyptians being killed by a militant group declaring their loyalty to ISIS or Da’esh. As a response to this video, which I don’t think is appropriate to share; the Egyptian president announced a week of mourning over the victims and called for an urgent meeting with the National Defense Council. A few hours after the meeting, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.6120938-3x2-940x627

These air strikes open the question again about the legality of the Egyptian Military intervention inside the Libyan territory especially after the different statements from the President Sisi and the Foreign Affairs Minister in UN Security Council meeting.

The historic background of the Libyan situation is significant in this context. Libya today has divided into a violent political struggle between two major powers: the internationally recognized, Tabruk parliament and Tripoli’s parliament. The Islamist groups cooperated with Misrata’s forces to stage a counterattack in Tripoli and occupy the capital. This forced the newly elected parliament into exile to Tabruk to be under the protection of general Haftar.

Alongside with this political struggle and declining situation, in June 2014, the jihadist group Majilis Shura Shabab Al-Islam (the Islamic Youth Shura Council) in Derna announced its allegiance to the Islamic State in Iraq and Syria (ISIS). A few months later, the organized militant group in Egypt, Ansar Beit Al-Maqdis, which continually attacked the governmental buildings and military bases, also announced its allegiance to ISIS and changed its name into Wilayet Sinai or the Sinai State. This link between the groups increases the suspicion of cooperation between the two groups and increases military operations against the Egyptian government and Army.

The use of language

A few hours, after the president Abd El-Fatah El-Sisi’s speech on the killing of 21 Christian Egyptian in Derna by militant group loyal to ISIS, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.

2015-635596428048984075-898The Egyptian citizens reacted to the video of the killings with significant anger and asked for revenge and reprisal attacks. During his speech president Sisi used the word “the right of response” to the killing of the Egyptians in Libya. Also, the ministry of Foreign affairs issued a statement after the airstrike stating that the airstrikes were under legitimate right of states of self-defense individually or collectively and its right to protect its citizens abroad. The linguistics used in both statements refers to framing the airstrikes towards the Egyptian citizens and protecting the citizens. The president statement directed to the citizens, and to settle down the anger of the citizens, but at the same time, statements like revenge or reprisal are not appropriate to be used in the international law context.

Therefore, framing the argument and defense of the attack through “the right of response” is to legitimate the illegitimate act.

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A few days later, the weakness of the doctrine of the right of response and the excuse of protecting of citizens abroad which had been used by the president and the ministry of foreign affairs was clear. The use of this doctrine in international law is rare and is not preferred. Therefore, during the UNSC urgent meeting in relation to the situation in Libya, the Foreign Affairs Minister instead commented on the Egyptian airstrike in Libya by using a different argument for the strikes, by stating “Egypt has decided to respond to the requests and needs of the Government of Libya and has provided military assistance”. The Foreign Affairs Minister’s statement framed the airstrikes as assisting the Libyan government in the war against terror after asking for help as part of consensual intervention, as the coordination and assistance of another country is not a violation against international law. Therefore, Egypt’s strikes over the Libyan territories were not in contradiction of the United Nations charter and customary international law. This new statement is directed to the international community, thus the language used must be the most appropriate to be accepted in doctrine and according to international law.

The word and framing used is important in international law and in strengthening the legitimacy of the Egyptian airstrikes in Libya. The justification of airstrikes based on the self-defense and/or protecting civilians abroad arguments or the right of response are weak in international law in comparison to the argument of the assistance of another country in the war against terrorism. The president used the phrase right of response to comment on the killing of Egyptians in Libya because he was directing the statement to Egyptian citizens while the Minister of Foreign Affairs could not use a weak legal argument in his speech to the international community justifying the airstrikes. Therefore, he used the argument of state requesting assistance of another state. The linguistics used by the president and foreign affairs minister differ because each one of them is talking to a different audience. Framing and language of law is just as important domestically as it is internationally.