international law,

The illegality of Russian intervention in Syria


By Mahmoud Serewel Feb 04, 2019
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-defence4 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 airstrikesin 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.’17Yet, 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.

[2] United Nations, Charter of the United nations (1945), 1 UNTS XVI, Art. 2(4).

[3] ibid.

[4] ibid, Art 51.

[5] 1986 I.C.J 14.

[6] Gregory H Fox, ‘Intervention by Invitation’ in M Weller (ed) The Use of Force in International Law (Oxford University Press, 2015).

[7] Shaw, International Law (Cambridge University Press, 2017).[8] Fox, n 6 above.

[9] ibid.

[10] As of November 2016, the Ba’ath Regime was held responsible for over 92% of the 203097 civilian deaths in Syria: Syrian Network for Human Rights, 2017, http://sn4hr.org/blog/2017/03/18/35726. The 2014 presidential election was widely seen as a sham by the West: Saul, ‘Syria Elections 2014’, The Independent (2014), https://www.independent.co.uk/news/world/middle-east/syria-elections-2014-voters-turn-out-for-ballot-denounced-as-a-sham-by-west-9475721.html.

[11] Lewis and Cocks, ‘Ivory Coast poll winner named, army seals borders’, Reuters (2010),https://af.reuters.com/article/worldNews/idAFTRE6B13FN20101202.

[12] ‘UN: Ivory Coast Crisis Not Over Yet’, VOA (2011), https://www.voanews.com/a/un-ivory-coast-crisis-not-over-yet-119617614/157864.html.

[13] S/RES/1980.[14] Slaughters and Burke-White, An International Constitutional Moment, 43 HILJ 1 (2002), 18.

[15] John Kirby, Spokesperson for US Department of State, Report on Russian airstrikes in Syria, Oct 2015.

[16] N.B. it is arguable that Russia’s intervention in fact aims to target moderate forces under the guise of an anti-extremist campaign, for the sake of legitimacy, with the true purpose of making the only alternative to Assad an unacceptable, extremist one. This is arguably evident from the manner in which Russia’s airstrikes seem to have systematically targeted moderate forces, and seems to have avoided targeting extremist forces.

[17] Slaughters and Burke-White, n 10 above, 2.

[18] Syrian Observatory for Human Rights, 2017, http://www.syriahr.com/en/?p=90825.. 5800 and 4000 respectively.

Article by Mahmoud Serewel
LLB (London School of Economics and Political Science) '19 and International Law Notes Editor of the LSE Law Review 2018-2019