Russian Airstrikes in Syria: a Violation of International Law?

Seema Kassab

Vol. 38 Associate Editor

One of the gravest humanitarian catastrophes of the present day has been taking place in Syria over last five years. According to the UN, around 250,000 people have been killed, 13.5 million people are in urgent need of humanitarian assistance inside Syria, and more than 50% of Syria’s population is currently displaced.[1] Instability within the country has led to an infiltration of Islamic Extremist groups, most notably the so-called Islamic State (ISIL). The Islamic State’s presence in Syria and Iraq has increased to the point where the international community’s focus has shifted from the atrocities committed by the Syrian government to those committed by ISIL. As a consequence of the rise of ISIL, the United Nations Security Council unanimously adopted Resolution 2249, which called upon “[m]ember States that have the capacity to do so to take all necessary measures in compliance with international law…to redouble and coordinate efforts to prevent and suppress terrorist attacks committed specifically by ISIL…”[2] In September 2015, Russian President Vladmir Putin received authorization from the Federation Council, Russia’s upper house of parliament, to launch airstrikes on the ground in Syria[3]. Putin has legitimized this action as compliant with international law under UNSCR 2249, as well as the legal principle of “intervention by invitation.” This principle is not explicitly stated in the UN Charter Article 2(4), the provision that guides the use of force in international law; however, there are exceptions that have arisen due to state practice. Some of those exceptions include self-defense, authorization by the UN Security Council under Chapter VII of the Charter, and intervention by invitation[4]. Two legal conditions must be met in order to invoke the principle of intervention by invitation: the consent by the inviting state must be valid and the inviting authority must be legitimate[5]. In order for consent to be valid under international law, it must be clearly established and expressed.[6] Although there has been no official document of consent issued by the Assad government, the coordination of military operations between the regime forces and Russia’s air force presumes that valid consent has been given. It can be argued that the first condition is clearly met; however, the second condition of legitimate inviting authority is not as clear. Can the Assad government, in the midst of civil war, be seen as a legitimate inviting authority? Russia, a country that views the Syrian regime as the legitimate authority in Syria, believes it has met this condition, and it has a 40 year-old legal precedent to support its position: Nicaragua v. United States. The plaintiff, Nicaragua, claimed that the US violated Nicaragua’s sovereignty by conducting armed attacks by air, land, and sea[7]. The United States supported its actions via the “intervention by invitation” doctrine; however, the United States had been invited by the opposition, and not the Nicaraguan government. The ICJ ruled that the opposition was not the legitimate authority in Nicaragua, and therefore, could not extend the invitation to the US to intervene[8]. This decision may not be applicable in light of the changing context of civil wars. Several aspects of the Syrian Conflict make it a unique situation of civil unrest, in which no legal precedent can completely apply. The Syrian Civil War consists of not just one opposition force, but multiple opposition groups, some of which are terrorist organizations. All the factions in Syria are fighting for control of the country on a daily basis, and consequently, the political geography of Syria is constantly fluctuating. This dynamic conflict makes it difficult to say that the Assad regime is the legitimate authority of Syria. In order for a government to display the minimum threshold of effectiveness to have the international legal authority to invite foreign troops, the government being challenged by rebellion must not have lost control of a sufficiently representative part of the State territory[9]. The Assad regime no longer meets this threshold. As of August 2015, the Syrian government had lost control of 83% of the country’s territory[10]. In the first nine months of 2016, the IHS Conflict Monitor reported that territory controlled by the Islamic State dropped 16 percent.[11] These statistics report that territorial control in Syria is anything but stable. Even if it is argued that Russia is acting in accordance with international law under UNSCR 2249 and under the intervention by invitation doctrine, there is still the undeniable fact that Russia has actually been targeting the moderate opposition in Syria as opposed to ISIL. In fact research has shown that 90% of Russia’s airstrikes have targeted areas with no ISIL presence.[12] The Atlantic Council recently released a report detailing Russia’s misinformation campaign, a part of its effort to conceal its support for Bashar Al-Assad.[13] The Russian Ministry of Defense (MoD) began publishing video footage of its airstrikes campaign. Analysts have come forth saying that the Russian MoD’s statements falsified what was actually targeted. In light of these inaccuracies, crowdsourced projects began to analyze all the locations targeted by Russia, and their analysis revealed that Russia was targeting areas that mainly consisted of the moderate opposition and civilians. Out of 43 Russian videos and 36 confirmed locations, Russia claimed that it hit ISIL 30 times when in reality, it was only once.[14] The international community should not stand by while allowing Putin to get away with his misinformation campaign. Russia is aggressively pushing the boundaries of international law, and the international community must expose Russia’s actions for what they really are.

[1] Syria’s Refugee Crisis in Numbers, Amnesty International (Feb. 3, 2016), https://www.amnesty.org/en/latest/news/2016/02/syrias-refugee-crisis-in-numbers/. [2] S.C. Res. 2249 para. 10 (5), U.N. Doc. S/RES/2249 (Nov. 20, 2015). [3] Matthew Bodner, Russia Begins Airstrikes in Syria, The Moscow Times (Sep. 30, 2015), https://themoscowtimes.com/articles/russia-begins-air-strikes-in-syria-49973. [4] Samuel Mercer, The Legality of Russian Airstrikes in Syria and ‘Intervention by Invitation,’ E-International Relations Students (Apr. 29, 2016), http://www.e-ir.info/2016/04/29/the-legality-of-russian-airstrikes-in-syria-and-intervention-by-invitation/. [5] Id. [6] Id. [7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14 (June 27). [8] Tania Ildefonso Ocampos, The Legal Basis for Foreign Military Intervention in Syria, Middle East Eye (Jul. 29, 2016) http://www.middleeasteye.net/columns/legal-basis-foreign-military-intervention-syrian-territory-805524848. [9] Georg Nolte, Intervention by Invitation, Max Planck Encyclopedia of Public International Law, Oxford Press, (Jan. 2010) http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1702?prd=EPIL. [10] Syrian Government No Longer Controls 83% of the Country, IHS Jane’s Intelligence Review (Aug. 24, 2015) http://www.janes.com/article/53771/syrian-government-no-longer-controls-83-of-the-country. [11] Islamic State and the Crisis in Iraq and Syria in maps, BBC (Sep. 21 2016), http://www.bbc.com/news/world-middle-east-27838034. [12] ‘More than 90%’ of Russian Airstrikes in Syria have not Targeted ISIS, US Says, The Guardian (Oct. 7, 2015) https://www.theguardian.com/world/2015/oct/07/russia-airstrikes-syria-not-targetting-isis. [13] Mark Czuperski et al., Distract Deceive Destroy Putin at War in Syria, Atlantic Council, 11-12 (2016), available at http://publications.atlanticcouncil.org/distract-deceive-destroy/assets/download/ddd-report.pdf. [14] Id.