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Russia Says Its Airstrikes In Syria Are Perfectly Legal. Are They?

The Huffington Post The Huffington Post 1/10/2015 Nick Robins-Early
ATHENA IMAGE © Hadi Al-Abdallah/ASSOCIATED PRESS ATHENA IMAGE

Every week, The WorldPost asks an expert to shed light on a topic driving headlines around the world. Today, we speak with Marc Weller on the legality of Russian airstrikes in Syria.

Russia has carried out a series of airstrikes this week in Syria, justifying the bombings as part of a fight against terrorism within the country. While analysts and U.S. officials have criticized the strikes as a blatant attempt to target rebel groups in order to strengthen Russian ally Bashar Assad's brutal regime, Russia maintains that what it is doing is perfectly legal.

"We believe that our position is absolutely in line with international law," Russian Foreign Minister Sergey Lavrov told reporters at the U.N. on Thursday, hours after more strikes hit rebel-controlled areas. Lavrov equated Russia's position to that of the U.S.-led coalition bombing Islamic State militants in Syria and Iraq, despite data that shows Russian strikes are targeting areas outside of IS control.

The WorldPost spoke with expert Marc Weller, professor of international law at Cambridge University, on what legal basis Russia has for its airstrikes, and why the United States-led bombing campaign should be considered any different. 

How is Russia legitimizing its strikes in Syria? 

Russia argues that it is acting at the invitation of the state of Syria, represented by the government of Syria led by Bashar Assad. This sounds similar to the U.S. and U.K. argument that they are undertaking military action in Iraq at the request of the Iraqi government. 

Forcible action at the request of a government is permissible in international law. States can use force within the territory of another state if the government of that state has agreed to it, but there is of course a critical difference in the cases of Iraq and Syria. The Iraqi government has been duly elected. It is genuinely considered the legitimate government and is, in that role, fighting against ISIS, a movement that has violently imposed itself on the population of Iraq and let terror reign, causing death and massive displacement.

Forcible action at the request of a government is permissible in international law.

But when it comes to Syria, a very large number of states have determined that the Assad government can no longer fully claim to represent the people of Syria. Instead, instead the opposition is the true representative of Syria. These countries haven’t gone as far as in Libya, where they considered the Libyan Transitional National Council to be the government.

Still, they’ve gone far enough to clarify that the government of Assad in Syria no longer has the right to claim full and unfettered international representation of Syria. Having been disowned by such a large segment of its population, and over such a long period, it can no longer lawfully invite foreign military force to intervene and fight on its behalf. That’s the difference between the positions in Iraq and in Syria.

The assessment that Assad is no longer the legal state power in Syria is not one held by the United Nations. So then who decides on what makes a legitimate state that can request for a foreign power to intervene?

In this case, no international authoritative body has taken the decision. The Russian argument that it is intervening at the request of government can therefore be made, although unpersuasively, as for some four years now a large segment of the population has disowned it. In most other cases, in such a situation a government is no longer legally able to invite foreign military intervention to save itself.

Normally, the UN Security Council would have imposed an arms embargo against all sides, including the government and the opposition. This was frustrated due to a Russian veto some time ago.

Hence, the Russian position saying that the UN has not imposed limitations on what the Syrian government can still do on behalf of the state of Syria is somewhat disingenuous, because it was the Russian veto that prevented such an act.

How does the American justification for its intervention in Syria differ from Russia's? What does Washington base its intervention on in terms of international legal principle?

The justification for the U.S. and the U.K. would be that they are exercising a collective right of self-defense on behalf of Iraq. Iraq notes that it cannot protect its borders, cannot defeat ISIS which has imposed itself on its territory, unless it fights ISIS in both Iraq and in those parts of Syria from which it sustains its presence in Iraq.

Therefore, if Iraq has the right to defend itself by engaging ISIS on the other side of the border in Syria, then Iraq also has the legal right to ask its allies for collective self-defense to support it. That’s the most persuasive argument in favor of the airstrikes in Syria by the U.S. and some others. This is somewhat different from the justification for the U.K. attack against terrorists plotting attacks from Syria against the U.K. In that instance, the U.K. argued that it had to take the action strictly necessary to disrupt an imminent attack against itself.

 The dog that has not yet barked is the question whether at some stage international action could be taken directly on behalf of the populations threatened by ISIS in Syria. 

And that would fall under the doctrine of Responsibility to Protect?

Yes, that would be an application of an extended version of responsibility to protect. Most argue that responsibility to protect encourages the UN Security Council to take action to save people from their own government. But where the security council is manifestly blocked and prevented from action, then the doctrine of forcible humanitarian action takes hold.

This would argue that it is legally permissible to rescue a population from imminent peril of extermination by its own government or another power like ISIS where no other option exists.

Given the vast numbers of forcibly displaced, the large numbers of executed persons and other crimes against humanitarian law that have been committed on such a widespread basis, such a justification could be persuasive, both in relation to the conduct of the Syrian government and ISIS.

Seemingly what we’re seeing in the way that Russia is invoking international law, but also the U.S.-led coalition, is increased military intervention through creative interpretations of international law.

Russia is relying on a conservative interpretation of international law, which would hold that a population is trapped within a state and whoever can claim to be the established government has the exclusive right to control what happens to that population. This includes the exclusive right to call for foreign military intervention in support of its armed campaign against its own people.

This outdated view holds that the sovereignty of the state remains in the hands of the government, even if that government is actively destroying the true sovereign: the population.

The more modern view is that international law exists to protect the people and is vested in the people, rather than in abusive governments. It holds that where a government manifestly undertakes to destroy a population, denies to it what it needs to survive or forcibly displaces it, or where a government is unable to stop the takeover of territory by a movement visiting unending horror upon the people, international action should be undertaken on behalf of that population, rather than its abusive government.

This interview has been edited and condensed for clarity.

More from The WorldPost's Weekly Interview Series:

- Have We Got ISIS All Wrong?

- What Is The State Of Political Islam Today?

- Was The Libyan Intervention A Mistake?

- What Palestinian Membership In The ICC Really Means 

Inside The Islamic State's Apocalyptic Beliefs

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