Understanding the Legality of Russia’s Actions in Syria

Erin Collins, Vol. 37 Associate Editor

Over the past few months we have seen the dramatic increase in Syrian crisis, culminating most recently with a Russian airstrike campaign in Syria. Under the United Nations charter Article 2(4) there is a general prohibition on the use of force. [1] There is a specific exception carved out for self defense in the UN Charter in Article 51 guaranteeing States the “right to individual or collective self-defense if an armed attack occur” as well as a more controversial possible exception of humanitarian intervention.[2] President Vladimir Putin argues that his action is specifically lawful under the argument of collective self-defense and states that because Syrian President Bashar al-Assad requested the action, Russia was not intervening but rather supporting Assad.[3] There is some historical support of government interventions that could be used to support Putin’s statements. For example, during the Cold War President Reagan justified U.S. military support in Nicaragua as an act of collective self defense requested by El Salvador.[4] This is likely to be as unpersuasive as the U.S. claim. While Russia is not providing what it considers to be “direct military support” and argues that the “air campaign [will] not be open-ended” it is unclear if the support is actually being used to target terrorist and insurgency forces in the country.[5] Currently, Russia appears to be targeting “something other than ISIS” according to U.S. officials.[6] It is also likely that in carrying out the air strikes, Russia has violated a missile treaty between Russia and the United States which bans the use of medium-range missiles.[7] It is also unclear that Russia is actually targeting ISIS in Syria; rather it appears that Russia has moved aircraft, tanks, artillery and armored vehicles into Syria as part of a strategic buildup of military hardware in the region.[8] Notwithstanding the questionable motives behind Russia’s actions, there is also the added question of if collective self defense could even be theoretically justified. Early in the Syrian crisis the idea of collective self-defense was couched in terms of responsibility to protect. Specifically, NATO Secretary General Anders Fogh Rasmussen announced that while NATO was not looking to get directly involved, it would ‘protect and defend’ Turkey while there were fears of Syria’s conflict spilling over into Turkey.[9] NATO also has a general history of arguing in favor of collective self-defense, or more broadly for humanitarian intervention as was seen when NATO intervened in Kosovo to help stop the violence against Kosovar Albanians. That being said, this type of action is generally regarded as illegal, but necessary.[10] The United States and NATO actively worked to not establish the Kosovo intervention as justified under customary international law. Specifically, the intervention was couched in humanitarian terms, not in terms of a legal obligation (opinio juris).[11] Instead, Kosovo has been in a legal grey zone where much of the acceptance of Kosovo has been ex post facto due to the success of the mission. Because of this, there is potentially an opportunity for the justifiability of Russia’s actions to be judged not based on any clear legal argument, but instead on the success of the campaign in Syria. Should Putin’s airstrikes prove to be effective in decreasing the violence in Syria, curtailing ISIS, or even just bringing the various actors to the bargaining table to look for a solution, it is likely that this action could also fall into a legal grey zone where while it’s not quite legal, it’s probably justifiable.

[1] U.N. Charter art. 2(4). [2] U.N. Charter art. 51. [3] See Andrew Marszal and Roland Oliphant. Russia launches airstrikes in Syria after parliament approves intervention – live updates, Telegraph (Sept. 30, 2016), http://www.telegraph.co.uk/news/worldnews/europe/russia/11900853/Putin-request-for-use-of-Russian-troops-in-Syria-approved-live.html. [4] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. ¶¶ 36-56 (June 27). [5] Barbara Starr. U.S. official: Russia ‘ready’ to launch airstrikes in Syria, CNN (Sept. 29, 2015, 7:15PM),  http://www.cnn.com/2015/09/29/politics/russia-syria-airstrikes-isis/index.html?eref=rss_world. [6] Id. [7] Id. [8] Supra note 3 [9] See Jordan Paust, Use of Military force in Syria by Turkey, NATO, and the United States, 3 U. Pa. J. Int’l L., 431,434-435 (2013). [10] E.g., Declaration of the South Summit, Group of 77 South Summit, April 10-14, 2000, ¶ 54, http://www.g77.org/summit/Declaration_G77Summit.htm. (stating that the Group of 77 “reject(s) the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.”) [11] See Jack Goldsmith, The Kosovo Precedent for Syria Isn’t Much of a Precedent, Lawfare (Aug. 24, 2013, 8:02 AM), https://www.lawfareblog.com/kosovo-precedent-syria-isnt-much-precedent.