A Case for Syrian Sovereignty
Westphalian sovereignty as a concept has developed over time. In the contemporary world, the concept of absolute sovereignty is preserved in Article 2(4) of the UN Charter. However, in multiple cases, that sovereignty has been taken down and ripped apart in light of seemingly stronger principles of humanitarian intervention, the responsibility to protect and debates between legality and legitimacy. In the past decades, be it Kosovo or Libya, the concept of sovereignty as something inviolable has been countered, thus paving the way for a new practice of law by states which must be understood in light of the analysis by Reisman and Armstrong that “the doctrine of sovereign equality notwithstanding, the actions of a great power may be more generative of law than those of smaller states.”
In light of the withdrawal of U.S. troops from Syria, the whole debate on the legality of U.S. action in Syria itself being set aside, a more complex question that arises with Syria, especially since the Islamic State has been rooted out, pertains to the preservation of what is left of Syrian sovereignty. Following the successes of the Russian and Syrian military on the ground along with those of the Kurds, Hezbollah and other militia that helped consolidate the charge against ISIS and the United States now proclaiming the complete elimination of the non-state actor group, the Syrian regime has to defend its sovereignty from further external intervention, given the “war on terror” argument that fed U.S. legitimacy, if not legality, all these years for their actions in Syria.
After factoring out the United States, one can almost immediately see a challenge that now lies on the ground in Syrian territory, both in the North and in the South, which serves well as a legal paradox. The challenge is that of Israeli strikes against Hezbollah troops in the South and Turkish attacks against Kurdish troops in Northern Syria. Of course, the former brings in its wake the analysis of the delicate peace, or rather the absence of declared war, after the Yom Kippur war of 1974 and the endless skirmishes between Israel and the Hezbollah, Hamas, and Syria at the Golan. However, this analysis does not find common ground with that of the Turkish-Kurdish conflict.
A fact that is uncontended is that both the Hezbollah and the Kurdish YPG have been instrumental in fighting the Islamic State – a fight that was also the premise for Inherent Resolve by the West. The legality of the western intervention has been questioned multiple times by legal scholars but the response has always settled by the principle of humanitarian intervention. Primarily, this fight was against a group recognised as a terror outfit unconditionally by all belligerents in the war, specifically by the United States and the E.U. On the ground, aiding Western strikes were the Kurdish YPG and fighting alongside the Syrian army were troops of the Hezbollah. Following the retaking of the last few territories from the Islamic State, amidst questions of just post bellum and the future of the Syrian regime, is the question of how two states are now attacking two groups, recognised by these states as terrorists, who helped root out a larger terrorist group, recognised by these two states and the West to be so and one of the two groups being allied with the Western coalition and the other with the regime.
The complexity of this question is complemented with the perplexity the Syrian regime itself faces, in the realm of sovereignty, given the multiple Israeli airstrikes in and around Damascus targeting Hezbollah supplies and troops and Turkish strikes targeting the Kurdish YPG. How these elements factor in as a legal problem, must be laid out. For the West, ISIS was the primary non-state actor group which needed to be eliminated. For Israel and Turkey, that same argument now applies to two other groups as they gave the same reasons for the breach of sovereignty while striking targets on the ground within Syrian territory. If their analogy is accepted, then this would mean the breach of sovereignty is occurring to counter a terror threat which was, a short while ago, aided in removing another terror threat which was the basis of the first breach of sovereignty. This would also call into question the nature of actions of the Hezbollah and the YPG in Syria against ISIS. They have been fundamentally the same as those of any other belligerents fighting the Islamic State in Syria. Therefore, there is no prominent way the West could retain the legal justification for its own actions in Syria while also retaining those of Turkey and Israel, especially the former, unless they choose to opt for a rapid policy reversal and abandon support for the Kurdish cause, which would trigger, probably the fastest, change in state practice and thus call into question how Opinio Juris itself develops.
Just as there existed no clause in the Chemical Weapons Convention that legally mandated a U.S. Tomahawk strike against a Syrian airbase following an alleged chemical attack, there exists no legal provision that allows Israel to use force against Hezbollah targets in Syria nor to aid in the implementation of UNSC resolutions 1559, 1680 and 1701. The Syrian regime is actively engaged in the South against Israeli attacks and in the North, has often pledged to fend off Turkish attacks, especially in the Kurdish enclave of Afrin, which the Syrian Foreign Minister said- amounts to an act of aggression. In this case, the international community must take cognizance of this face-off between the principle of sovereignty as absolute and that of sovereignty being discounted at every “imminent” threat to any nation. Here, the involvement of particularly three states makes it a test case for certain fundamental principles of international law such as sovereignty and state practice and the judgement of the International Court of Justice in the North Sea Continental Shelf case where the court ruled that the practice of not only major powers but also “states whose interests are especially affected” account for the development of law.