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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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 evolution of the use of force norms within the Security Council

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During the past few decades, a notable development has occurred to the doctrine of the use of force within the UN Security Council (SC). Pursuant to the UN Charter and the collective security provisions, the UN security body – the Security Council (SC) – is entitled to authorize the use of force to member states for maintaining international peace and security. The UN Charter explicitly provides the SC with a mandate to maintain peace between states, not within them. However, the SC unanimously adopted a new doctrine commonly known as the “Responsibility to Protect” (R2P) by virtue of the SC Resolution 1674. In essence, the R2P doctrine empowers the SC to authorize the use of force in any state regardless of whether the government of such state has provided its consent or not. The institutionalization of such doctrine was however faced with resistance by many member states, especially those with a history of foreign intervention and contested territory. This short article highlights two main factors that contributed to the evolution of the use of force norms within the SC, namely, the desire of the SC to gain prominent social status and the role of the international community in pushing the SC to become more “empathetic and altruistic”.

The mandate of the SC in authorizing the use of force is specifically dedicated to maintain peace and security between states, and not within them. This rule was reiterated by China’s delegates to the International Commission on Intervention and State Sovereignty (ICISS):

“Nowhere in the UN Charter can one find a clause that permits using force, except for national defense under Article 51 and for restoring international peace, as specified in Chapter VII. Using force for moral or conceptual reasons is questionable and dangerous.” (emphasize added)

However, the scope of protection was extended through state’s unanimously voting in favor of Resolution 1674 – the resolution that adopted the R2P doctrine. As a result, the SC mandate was stretched to include “human protection” in the sense that states sovereignty also include military interventions in a country where its “national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

The endorsement of the R2P doctrine by the UN member states through unanimously accepting the adoption of Resolution 1674 shows that the R2P doctrine originated outside the circle of the SC. Importantly, the role of the empathetic international community in seeking to prevent “another Rwanda,” was much more obvious and influential than for individual states seeking to justify self-interested intervention. Hence, claims that R2P is “the return of the civilizing mission,” or was created as a “Trojan horse” for imperialism misunderstand the history of R2P.

There seem to be a relative normative convergence between the five permanent members of the SC (P5) regarding why to use force, despite the existence of a slight degree of divergence regarding how and when to use force. However, state practice, especially those of the P5, clearly shows violations to the international norms that they have adopted and that all seek the status of “responsible power.” This status seeking may not always override material self-interest, but it certainly plays a role in shaping international norms that operate in the collective interest and help facilitate collective-action.

The social influence and empathy of states is yet another element that had a direct impact on the evolution of the use of force norms. Although the pace and depth of such influence might not be as much as expected, it is evident that empathy remains an important factor in boosting the development of international security norms. As such, both empathy and social influence albeit insufficient, are necessary variables in explaining the evolution of use of force norms.

The Rwandan genocide case is an obvious example in the evolution of the UN use of force norms. Importantly, the role of key international players in spreading the devastating social impact of genocide in Rwanda influenced the work of the International Commission on Intervention and State Sovereignty (ICISS) – the Commission that had a leading role in the adoption of Resolution 1674. Also, the role of international human rights’ advocates in circulating stories of atrocities, massive human rights violations, and people sufferings to reach to a wider audience seems to have equitable effect in the evolution of the use of force norms. In other words, empathy and social influence dimensions are gaining more and more importance in the development of use of force norms function.

Moreover, the growing international expectation of the SC’s “responsibility to protect,” with or without the consent of governments is yet another significant development. The SC is, by virtue of its mandate, obliged to take action and intervene in domestic conflicts, even if such intervention violates state’s sovereignty. One of the issues that remain questionable is why did the SC intervene in the Libyan conflict and not in Syria. Apart from strategic or economic motives, a number of justifications were bolstered for the international military intervention in Libya, of which is the empathy for people suffering in Syria and the institutionalization of human rights norms posited in international law. It is worth mentioning that the social impact of human rights norms has a direct correlation on international security culture, and thus ordering international society. This backs our argument that emotion and social influence have a significant effect on international relations, and specifically the evolution of the SC’s authority to use force.

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Despite the fact that the expansion of the UN SC’s doctrine of R2P carries risks in as much as benefits, particularly in the expansion of the “circle of empathy,” the implementation of the R2P should not be taken for granted. It is not uncommon that the SC’s intervention could fail to materialize in every conflict, but the expectation for it to try, even at risk to its own members, remains significant. This narrative shows that the process of institutionalizing empathy and altruism have played a critical role in the decline of many oppressive and violent practices. Thus, although it may not seem likely at present, the adoption of R2P may be a watershed moment in history. Moreover, globalization in itself is likely to bring a more interconnected world that makes the sharing and spreading of emotions and human rights norms easier leading to a more peaceful world.

 

 

Critiquing Humanitarian intervention in Libya

In 2011, Libya became one of the countries that were quickly impacted by the Arab Spring. Yet, it has been going through a different path than its neighbours Egypt and Tunisia that have largely succeeded in their revolutions. As a result of the dire humanitarian situation in Libya in 2011, the UN Security Council decided to implement multilateral humanitarian military intervention.

Before the application of humanitarian intervention, one has to make detailed calculations and evaluation of the necessity of intervention. The legality of humanitarian intervention is a complex question: does sovereignty rule out intervention in order not to breach territorial integrity? Or does the international community have the responsibility to avoid gross and systematic human rights violations? Regarding sovereignty, “the legal rub of humanitarian intervention is the United Nations Charter, the foundational document of international law whose core principles are sovereignty and non-intervention” (Cronogue, 129).

The implementation of humanitarian intervention in Libya was arguably based on the prominent model of: the Responsibility to Protect (R2P) doctrine. It is argued that “the concept of R2P consists of three elements: the responsibility to prevent a population from suffering serious harm, the responsibility to react if such harm occurs, and the responsibility to rebuild after an intervention” (Gowers, 597). The R2P implies a collective international responsibility “exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing and serious violations of humanitarian law which sovereign governments have proved powerless or unwilling to prevent” (Background Information on the Responsibility to protect, United Nations). “President Barack Obama—along with NATO—claimed that military action was necessary in order to prevent a bloodbath in Benghazi, where Qaddafi’s forces had surrounded a defenseless population” (Gillin, Libya Is Yet Another Reason to Be Wary of Humanitarian Interventions). However, the intervention implied the overthrowing of the leader Qaddafi who targeted civilian protesters, yet, the overthrowing of a government is not legally justified under international law, but is rather considered political. The timing was ideal to exercise humanitarian intervention as “leaders in the Middle East were still reeling from the Arab Spring” (Patrick, Libya and the future of Humanitarian intervention). The Libyan case was illustrated as “a textbook illustration justifying R2P principles, but its implementation also demonstrated the need for legitimacy criteria to guide decisions on authorizing and overseeing international military intervention” (Thakur, 61).

Libya has been perceived as a “failed” state that lacks the ability to protect its own citizens. Since Libya is considered as a “failed” state, the responsibility is seen to be extended to the international community. Although, the use of force in “failed” states is very debatable, humanitarian intervention seems to have been the first option in Libya. Therefore, the Security Council issued Resolution 1970 (2011), which underscored “the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government” (Resolution 1970). It is also added in the Resolution 1970 that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity” (Resolution 1970). The Resolution stressed the significant responsibility of the Libyan authorities to protect and respect its population. The Security Council accompanied Resolution 1970 with the Resolution 1973 that permitted Member States to legitimately take “all necessary measures” in carrying out humanitarian intervention in protecting civilians (Resolution 1973).

Humanitarian interventions are very expensive and their consequences cannot be predicted.  However, humanitarian intervention is a significant instrument that is “claimed” to protect people and punish perpetrators of human rights violations. Humanitarian intervention does not seem to be a “pure tool” that aims to really save lives as it is highlighted that “the United States will remain selective about humanitarian intervention, because it must balance the goal of preventing suffering with other interests and commitments” (Patrick, ‘Libya and the future of Humanitarian intervention’). Actually, the United States always used the arguments of establishing democracy and eliminating human rights violations as a basis for humanitarian intervention. In the case of Libya, it seems that economic interests, more specifically oil reserves were the real interests of the United States. This intervention is reminiscent of the Iraq war in 2003. Moreover, the geographical location of Libya makes it strategically beneficial in the sense that it allows access to Africa.

The United Nations has justified multilateral, UN-authorized humanitarian intervention according to Article 39 of the UN Charter, which states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. Because this Article is broad and vague, the UN Charter does not contain any clear conditions for collective action. Nonetheless, it has been argued that humanitarian intervention goes against Article 2 (4) of the UN Charter, which stipulates 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, or in any other manner inconsistent with the Purposes of the United Nations”. Furthermore, the UN Charter underlines in Article 2 (7) that: “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter”. However, when the situation reaches a perceived “high peak”, the Security Council gives itself the power to employ the humanitarian intervention with the use of Article 39.

The humanitarian intervention in Libya did in fact create a new “failed state”. The humanitarian intervention strategy was actually proven in the Libyan case as a total failure. The presence of a two rival governments makes the position of the country weaker. The existence and role of the militias including some Islamist extremists and ISIS over the country weakens the economic situation due to the constant contest over oil revenues. The creation of these Islamist extremists was the outcome of the continuous sustainment by the West aiming to succeed in the process of regime change. Security cannot be established due to absence of an army and an undrafted constitution. The intervention did not imply any kind of a process of active rebuilding aiming to put Libya on its feet. It is questionable whether the Libyan intervention was really an intervention to protect the population or rather another strategy to remove a political leader who constantly went against the West on the political, social and economic levels. The NATO intervention has succeeded in showing that it was a failure due to the presence of violence after the action. This could be seen with the increased number of deaths and human rights violations. R2P in the Libyan case did not include any kind of protection but rather a kind of violence and humiliation of civilians. Violence has spread all over the country. Saving lives is simply a justification to attack one nation’s territory and breach its sovereignty.

Humanitarian interventions are simply “lies”. They can never be trusted due to the constant hidden goals. Humanitarian interventions cannot function because they produce more negative consequences than good ones and this could clearly be seen in the Libyan case as mentioned above. There is no “pure” behavior of a humanitarian intervention. One has to mention the tremendous influence and control of the United States (U.S) over NATO’s actions. The U.S under NATO’s umbrella looks for its own benefits by trying to act as the “saviors”. Moreover, the humanitarian intervention does not offer any solutions. In other words, the intervention does not try to solve the causes of the conflict or deal with its consequences. If humanitarian intervention in Libya was really “pure”, then the employment of military action was not required. The fact that the use of force was included in the intervention breaches the whole aim and purpose of intervention as it continuously violates human rights.