Taking sides or providing aid in any type of war is, without a doubt, a catalyst for future controversy. The issue is being able to choose the right side or, at least, the side which proves to be the most favourable in the long-run. War-gripped Syria has experienced low-scale rebellions.
Slowly and steadily, they morphed into civil war and generated the question: whose side is the right side? The purpose of this article is to analyse and clarify the Syrian crisis from a legal point of view. It will determine the applicable international law on the matter and corroborate it with relevant facts.
Foreign support and legitimacy
According to Article 20 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (International Law Commission, 2001), aid given following a government’s request is lawful as long as the state’s sovereignty remains intact. There would be no violation of the principle of non-intervention, upheld by customary international law.
However, in Syria the principle of non-intervention clashes with the denial, by the government, of the right of self-determination of its people. The use of force as a means to disband a self-determination movement is forbidden, as is any aid given to that end by a third party (Gray, 2008). Recently the Syrian government was accused of using chemical weapons. In this light, Article 16 on State Responsibility states that ‘a state may incur responsibility [for internationally wrongful acts] if it provides material aid to a State that uses the aid to commit human rights violations’.
A well rounded analysis of the rebel side must determine their legal status according to international law. In international law, internal matters are pure facts which do not generate legal consequences. The sole exception is self-determination conflicts (Shaw, 2008). Can the rebellion in Syria be classified as a self-determination conflict, or is it merely an internal issue, meant to be dealt with by the authorities? Shaw proposes three types of statuses known in conflicts and recognised by traditional international law. These are rebellion, insurgency, and belligerency. Rebellion implies sporadic and isolated challenges to the legitimate authority. The rebels do not have any rights or duties and are not protected under international law (Higgins, 2004). Higgins highlights that any aid or intervention from a third State is prohibited as an unlawful intervention and interference with State sovereignty.
Higgins points out two conditions for an insurgency. The rebels must occupy a large portion of the state’s territory and they must have enough military force to be of interest to neighbouring states. Both of these contribute to the partial internalisation of the conflict.
Belligerency, on the other hand, involves a formally recognised status. In Higgins’ words, it requires ‘the acknowledgement of a juridical fact that there exists a state of hostilities between two groups contending for power or authority’ or ‘the recognition of the existence of war’. This status has its own conditions: (1) the occupation of a large portion of territory, (2) hostilities in accordance with the rules of war, (3) a responsible authority, and (4) the existence of a situation which makes it mandatory for states to define their attitude. If these conditions are fulfilled, belligerency may be associated with a self-determination movement, protected under international law.
Does Syria’s case allow lawful foreign aid or intervention? The United Nations General Assembly affirmed the right of states to offer support to those struggling against colonial or racist regimes. This right included the possibility to provide weapons. According to Dapo Akande, by extending this right, it is reasonable to believe that international law allows State support for groups fighting for self-determination. The General Assembly Resolution 2649 (XXV) from 1970 states that other states must respect self-determination struggles. It implies that self-determination movements are capable as international actors.
Syria’s legitimacy issues
In Syria’s case, the main issue is to establish which of the movements can be acknowledged as the legitimate representative of the Syrian people. General Martin E. Dempsey of the U.S. Army stated that ‘Syria today is not about choosing between two sides, but rather about choosing one among many sides’.
The legitimacy of the movement is the basis for a possible recognition by third parties, either as legitimate representatives or as a new government. In the first situation, Bashar Assad’s government will still be recognised as the government of Syria. The struggle of the liberation movement will gain legitimacy, creating the image of a ‘government in waiting and a group that is capable of taking over, at least on a transitional basis’ (Dapo Akande, 2012). This may lead to problems in defining the governmental authority entitled to request assistance (Shaw, 2008).
The difficulty to identify the opposition led to the reluctance to choose one or another. This reluctance is also intricately linked to the radicalisation of militias (Holliday, 2012). The rebels’ increasing need for weapons and the Western reluctance to offer it led them to turn to Al Qaeda for help. This cautious approach is proved by the fact that the only country which has formally recognised the Syrian National Council, the main opposition body, as the legitimate authority, is Libya. Other states, as France, Spain, the United States or the United Kingdom have only acknowledged the SNC as the legitimate representative of the Syrian people.
To conclude, should the Syrian opposition materialise as a viable replacement for the current government, States may take the risk of officially recognising it as a legitimate authority. This will allow its people to determine their own political status. The International Covenants on Human Rights stipulates that ‘[a]ll peoples have the right to self-determination and by virtue of that right they freely determine their political status’. It is, nonetheless, safe to assume that an official recognition of the government will ward off any potential hurdles related to the principle of non-intervention or the violation of State sovereignty.
