– Mahmoud Serewel, Notes Editor (International Law)
Introduction
Russian military intervention has seemingly
turned what was once a
contentious and indecisive civil war into a fray the Government shall inevitably win. Russian forces had
conducted some 70,000 airstrikes by January 2017.[1] Nevertheless, there has been much discussion of Western intervention in Syria
and little discussion of Russia’s intervention. I therefore aim to scrutinise
Russian intervention in Syria.
The Russian Government has aimed to bypass
the general restriction to the use of force under Article 2(4) of the UN
Charter through the State request exception.[2] Firstly, I shall set out the conventional international legal parameters for
the use of force against another state. I shall subsequently argue that this
intervention does not satisfy the requirement for a legitimate state request of
use of force. I shall demonstrate that, because the Syrian Ba’ath regime is not
a legitimate representative of the Syrian people, it cannot be a legitimate
representative of the State.
Further, I argue that, even if one were to consider the Ba’ath regime capable
of requesting the use of force, the use of force in this instance is not fit
for purpose. Russian intervention claims to target extremist forces, yet the
targets have predominantly been moderate rebel forces. Russian intervention has
become a disproportionate and extensive airstrike campaign that goes far beyond
nullifying extremist forces. Finally, Russian intervention cannot be seen as
legitimate given the large number of civilian casualties.
Use
of force outlined
Article 2 (4) of the UN Charter sets out
the general rule concerning the use of force. It prohibits the threat or use of
force ‘against the territorial integrity or political independence’ of a state.[3] There are two orthodox
exceptions to this prohibition, namely the use of force in self-defence[4] and use of force authorised
by the Security Council under Chapter VII of the Charter. However, neither of
these exceptions can be relevant to Russia’s intervention. More relevant to
this intervention is the principle of
non-intervention in purely domestic matters, including civil wars. This principle has been reaffirmed by Nicaragua.[5] Russian airstrikes in Syria
which have turned the tide of the Syrian Civil War unequivocally interfere with a
purely domestic matter, as well as violating the territorial integrity of the Syrian state. On the face of it, this
intervention is therefore illegal.
State
request and the Ba’ath regime as representative of the state
An unorthodox yet accepted exception to the
prohibition on the use of force is a state’s consent to it or request of it.
This can take the form of the de
jure government of a nation requesting force, as they are
seen as the state’s representative.[6] Traditionally however, the
legitimacy of this request is ‘firmly based’ on the effective control of a
government.[7] While there is some academic
debate as to which criterion is more significant, both de facto and de jure
control are considered when assessing the legitimacy of a request, with de
facto control generally given greater weight. It is on this basis that Russia
justifies its intervention; the Ba’ath regime has requested their intervention.
The Ba’ath regime is the de jure Government of Syria and has de facto control
over most Syrian territory. Hence, the Ba’ath regime acting as the state’s
representative is relatively uncontroversial if one looks at it through the
traditional lens of the state request exception.
However, recent practice seems to emphasise the
importance of a party’s legitimacy as well as its de jure and de facto
governance.[8] By this logic, the authority
to govern is reallocated to the true sovereign: the people. In other words,
‘legitimacy’ requires some form of democratic or representative mandate.[9] Weller considers the example of the Syrian
Ba’ath regime specifically, pointing out that the government formed, which
abuses its own people, is the product of a sham election.[10] It is difficult to disagree with Weller,
that this illegitimate government cannot be seen as a representative of the
people. Given it is not a legitimate representative of its people, it therefore
cannot be a legitimate representative of the State. Where
however, a government’s authority can be linked to the people through, for
example, free and fair elections, it has the legitimacy to request the use of
force under recent international practice.
This contrast between
legitimate and illegitimate representativeness can be clearly seen in the Ivory
Coast. Here, the former president, Gbagbo, lost in internationally overseen
elections to Ouattara, yet he refused to resign.[11] Both parties requested the
aid of international organisations, and UN forces chose to side with Ouattara
due to his more legitimate claim to the presidency.[12] Ouattara’s ascent to power was welcomed by the UN Security Council.[13] The decisive factor was not the fact that Ouattara
was the de jure President of the Ivory Coast. Rather, it was the manner in
which Ouattara became President: through democratic elections. This provided
him with the authority of the people. Therefore, I argue that the reverse logic
applies. Specifically, despite the fact that Assad is the de jure President of
Syria, his lack of a legitimate basis makes him incapable of requesting the use
of force as a representative of the state.
The
disproportionality and inefficiency of Russian intervention
My reading of the international legal sphere
is a relatively novel one however. After all, while theoretically consistent
with recent state practice, a de jure government requesting the use of force
has not yet been rejected on the basis that of its inability to represent its
people. Therefore, for the sake of argument, I shall nevertheless examine the
use of force by Russia under the assumption that international law does in fact
allow the Ba’ath regime to request the use of force.
Use of force against another nation must
always be ‘strictly proportional’ to the purposes of this force.[14] In other words, they must
effectively see out this purpose, in as minimal a manner as possible. The named
purpose in this instance is the targeting and elimination of extremist forces,
such as ISIL and Fathat al-Sham (previously ‘Al Nusra’). Yet, up to 90% of
Russia’s airstrikes in
Syria have not targeted ISIL, the largest extremist force in Syria.[15] In other words, this
campaign is disproportionate in that it is inefficient and it does not actually
address the issue it posits to.[16]
In addition, Syria has suffered many
civilian casualties as a result of Russian intervention. A deliberate or
nonchalant targeting of civilians is widely rejected under international law.
Slaughters and William argue that states and individuals should in fact be
‘obligated to make every effort to protect civilian lives.’ [17] Yet, according to the Syrian Observatory of
Human Rights, as of September 2017, Russian airstrikes have in fact killed more
civilians than they have ISIL soldiers.[18] It is unlikely that Russian forces have deliberately targeted civilians. Yet,
they have evidently shown little regard for civilian life in the manner in
which they have launched their campaign. This nonchalance is nothing short of
illegitimate, demonstrating that, from any and every legal lens, Russian
intervention in Syria is illegal by international standards.
Conclusion
I have argued that the Ba’ath regime cannot
be seen as the legitimate representative of the Syrian people, having no
democratic basis for this authority. I have further shown that, even if one
falls back to the traditional interpretation of international law in this
instance, Russian intervention remains illegitimate. The wholly
disproportionate manner in which this campaign has been launched, not in fact targeting
extremist forces and killing thousands of civilians makes it illegal under any
interpretation of law.
[1] Американский Б-52 разбомбил сирийскую деревню, Rossiyskaya Gazera, 2017.
[11] Lewis and Cocks, ‘Ivory Coast poll winner named, army seals borders’, Reuters (2010), https://af.reuters.com/article/worldNews/idAFTRE6B13FN20101202.
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