Russian intervention in the Crimea: The war of bones cracking

Introduction

     Since the end of the cold war, the world didn’t witness a complicated east-west crisis until the Crimean’s crisis took place after Ukraine’s pro-Russia president Yanukovych was removed from power due to the protests which took place in the Ukrainian capital. Since the beginning of the crisis, Russia has been criticized for breaching. This blog post questions, the legality of Russia’s annexation of the Crimea through analyzing the different arguments of the involved states and the principles of international law.

  1. A) Facts

First , according to BBC, the Crimean peninsula was annexed by the Russian empire in the late 18th century during the reign of Catherine the great, and it endured as a part of Russia until 1954 when the Soviet president Khrushchev decided to transfer it to Ukraine in perpetuity (2015).In addition, Ukraine was always autonomous under the USSR. After the USSR’s dissolution the Crimea was within the borders of what became the independent Ukraine. The relation between Kiev and the Crimea had always been complicated where ethnic Russians constitute the majority. Russia started to show its interest in the Crimea as the negotiations about the future of the black sea fleet were taking place ( Global Security ,2015) .

Second, the recent Russia intervention started as a slow motion action to occupy the Crimea. Russia began its intervention by a convoy of humanitarian aid for the pro-Russian rebels that was only used to cover the real Russian military buildup in eastern Ukraine. Later, the associated press has reported that about 300 trucks have left Moscow’s area and the Red Cross officials do not know about their contents. According to NATO’s secretary general, these trucks were used in military buildup in the Crimea’s that could be involved in an illegal military operations in Ukraine (Global security, 2015).

Third, according to BBC , Russia has always had a great influence on the Ukrainian ousted president Mr. Yanukovych with whom Putin signed a treaty to prolong the lease on Russia’s Black Sea fleet for 25 years. After Ukrainian protestors pushed Yanukovych to leave power, Russia restricted trade when Ukraine was on the edge of entering the European Union as an economic pressure on Ukraine. Followed by many anti-western protests in Moscow calling for the return of the legitimate ousted president of Ukraine (2015). According to   Tom Parfitt, Fights began between pro Russians and Russians in the Crimea on a side and Ukrainian citizens on the other side until Ukrainian and Russian authorities have reached a ceasefire agreement in the Crimea (2015).

Fourth, the issue of the Crimea’s independence referendum took place just after the protests against Kiev’s coup which ousted Ukraine legitimate president. Most of the protestors demanded a referendum for the Crimea to spit up of Ukraine. The republic of the Crimea announced its independence from Ukraine on March 16 according to the referendum results which illustrated that 96.9% of the Crimean population chose to rejoin Russia. (RT, 2014) Consequently, Putin signed a treaty which stated the official annexation of the Crimea claiming that it has always been a part of Russia since the 18th century. (Beth Rowen, 2014)

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Fifth, one of the most powerful arguments against Russia could be the illegal use of force against Ukraine under article 2(4) of the UN charter. This article emphasizes on the prohibition of the use of force by any states against one another , and the only exception of the prohibition of the use of force is under article 51 of the UN charter which is self-defense that and the authorization of the UNSC in order to maintain peace and security. In addition, according to article 51 of the UN charter for a self-defense to be legal it should be in response of an armed attack and Ukraine didn’t deploy any of its forces anywhere in the Russian’s territory (Wisehart, 2014) . According to Gray’s article, any self-defense to be legal, it should have fulfilled two conditions which are proportionality and necessity. Russia’s actions wasn’t necessary as it was no armed attack against it and if there was an armed attack , Russia should act in a proportionate manner to push out the Ukrainian troops out of its territory and to advance in theirs , and occupy the peninsula of the Crimea. Nonetheless, Russia was acting illegal according to article 51 of the UN charter, as its supports for the pro-Russian Ukrainians in Ukraine (even if it was logistic or financial) was kind of an indirect use of force that threatened the state’s integrity and political independence. Another point here is that, even if Russia pretended that it was intervened in the Crimea to rescue its nationals, it is also illegal as there was not any consent from the host state for Russia to intervene in it, and there is also an effective Ukrainian government so.

Russia’s perspective

Russia based its claim on the following arguments .First of all, Putin argued that the treaty signed by the USSR and Ukraine in 1954 where the Crime was ceded to Ukraine is not binding anymore because according to article (60) of the VCLT, there is a fundamental change of circumstances as has been a change in sovereignty and the USSR ceased to exist so Russia is not bound by the USSR’s treaties.

Second, Putin emphasized that people living on a certain territory should have the right to choose or determine their own future. The referendum was Russia’s legal proof that the people living on the Crimean peninsula want to be part of Russia as about 95% of the votes of the residents was in favor of Russia’s annexation of the Crimea (BBC, 2014).

Third , Russia accused the West of supporting an illegitimate regime in Kiev which seized power through a coup in late February , and in that sense the West has no right to accuse Russia of committing illegal acts in terms of Crimea’s annexation. Besides, Putin responded to Western accusations against by pointing out the Western invasion in Iraq, where there was no U.N mandate. Moreover, he referred to what happened in Libya when the U.N resolution was disregarded by the West. (Alpert, 2014).

Fourth Putin argued that he had the presidential approval of Yanukovych to annex the Crimea. There was therefore no breach of international law norms or principles. Putin bases this claim on the argument that overthrowing the Ukrainian president Yanukovych is an anti-constitutional action and a military coup as Yanukovych is the legitimate president of Ukraine. (BBC, 2014).

Finally, concerning the treaties that were concluded by Russia and other states including Ukraine to guarantee national sovereignty, such as the Budapest Memorandum, Russia argues that if as Ukrainians allege what has happened in Ukraine is a revolution, Ukraine is now a new state with which Russia has no binding agreements. As result Russia did not breach any treaties. (Pacer, 2014). I disagree with Putin’s argument which justifies Russia’s breach of the Memorandum of Budapest by stating that Russia has no binding treaty with the new illegitimate government in Kiev. Agreements are binding on states and do not have to be changed according to the change of presidents as, if so, we would live in an anarchic world where disorder dominates. According to Jus Cogens, there is some obligations to successive governments and one of them is that “a successive government to be recognized shall exhibit a willingness to uphold the State’s obligations under international law” and the obligations of a new government under international law include treaty and contract obligations. Consequently, Putin’s former argument is illegal (2005).

Ukraine’s claims and international law

Ukraine argues that Russian actions in Crimea are illegal based on the following claims. First, the annexation of Crimea was a violation of the treaty that took place in 1954 between Ukraine and the Soviet Union where the Crimea was ceded to Ukraine. Hence, the legality of nowadays Russia’s recent annexation of the Crimea because it was historically a part of Russia is a weak argument since the treaty between the USSR and Ukraine in 1954 stated that Crimea belongs officially to Ukraine. Furthermore, the occupation of the sovereign Ukraine by Russia is an obvious violation of the fundamental principles and basic norms of international law. According to the Security Council of the United Nations, by resolution 2202(2015) , the Security Council called for the implementation of the Minsk agreements signed on 12 February 2015 by Minsk and Moscow to implement a ceasefire in eastern Ukraine. Then according to article (39) of the UN Charter, the Security Council shall determine the existence of any threat to the peace and therefore shall authorize any unilateral use of force. The fact that Russia has been acting unilaterally achieving its own interests to annex the Crimea without having the authorization of the Security Council is illegal. In the meanwhile, even if the Crimea and Ukraine were once parts of Russia since the 18th century there are many treaties that came into force later in the 20th and 21st centuries that assure that Crimea is a Ukrainian territory. These include the “Memorandum on Security Assurances” that was concluded by Ukraine, Russia and UK in 1994 (Düben, 2015).In addition, the Budapest Memorandum that was reassured by Russia in 2006, reinforces the respect of states’ borders and national sovereignty emphasizing on that all the parties of the treaty should not be involved in any use of force against any other state (Sharma, 2014) .

ukraine-crisis-eu

Second, according to article (60) of the VCLT Russia has explicitly committed a material breach of the Budapest Memorandum intervening militarily in Ukraine’s territory. Under the umbrella of article (60)(a) in the VCLT , the other states that have taken part in this multilateral treaty could terminate the treaty with the state that has breached it. It means that they could terminate the security assurances under the Budapest Memorandum that guaranteed the security of Russia as well (Sharma ,2014) .

Third, according to article 2(4) of the UN Charter, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations”. As a result, Russia used force against the Crimea disguised by humanitarian convoy and as a result Russia has breached article 2(4) of the UN Charter. (Global security, 2015) .

Another point that is worth mentioning is that according to Opinio Juris, “This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.” This clarifies that the republic of Crimea is autonomous on several levels and there is no need for Russia to appeal for the right of self-determination to the Crimean population. In addition, the Crimea independence referendum held by Russia which showed that 96.6% of the Crimean’s residents were favor of Russia’s annexation of Crimea is illegal according to the UN General Assembly that has voted for it illegality . In addition, article (73) of the Ukrainian constitution, states that all Ukrainian population should have voted on the Crimea dependence referendum in order for the referendum to be legal (Sharma, 2014) .

Conclusion

     Considering the fact that international law is ambiguous, it is difficult to decide who has really breached its norms as states could easily manipulate it to justify their actions in order to achieve their interests. However, there are many lawful methods under international law that can present solutions to sovereignty problems between states without committing illegal actions. Russia’s annexation of the Crimea has breached the basic principles of international law and even the justifications of Putin showed the territorial interests. Russia has violated the sovereignty of Ukraine for annexing Crime claiming that it has a historical right. The historical claims of Russia are not valid because if each and every country will annex a territory that was part of it hundreds of years ago, all the world’ borders would be unstable. Finally, I believe that the international community as a whole should find solutions for the crisis that would end it totally and that it would enhance the authority of international law.

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France and The Veil

       In July 2003, French President Chirac established the so-called Stasi Commission to examine the principle of Laïcité or secularism of the French Republic. The Commission’s report recommended the adoption of a law to regulate educational establishments. In 2004, the French Parliament approved a bill that was signed by President Jacques Chirac, bringing it into effect. The law stated that:

“Application of the Principle of Secularity’ “loi no 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics”.

       On 10th February 2004, the lower house voted by a large majority (494 for, 36 against, 31 abstentions) in support of the law. It was then published in the Official Journal of France (Lyon, Dawn, and Debora). The law prevents students from showing any religious affiliations, whether they are Christians, Jews or Muslims in public schools. This prohibition provoked comments and debates in France and across the world, on the validity of domestic law in relation to international human rights. People view it as mainly targeting veiled schoolgirls, where it was referred to as a “French headscarf ban” according to foreign press. In order to analyze this law, we need to examine the historical background of France and its legal framework, which resulted in the adoption of such a law. The main question of this paper is whether the ban falls under domestic law or does it violate France’s international human rights obligations? And how can the veil be considered a threat to this 200- year-old republic.

 France_veil

Historical Background

Before examining this law, it is important to highlight one of the most central principles in France, the “Laïcité”, which means the separation between the state and religion. This idea started in 1905 and continued to be included and deeply practiced under articles 1 and 2 of the French constitution, the Fifth Republic Constitution (IDRISS, M. M)

France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralized basis.

Laïcité protects the core values of the French Republic: liberty, equality and fraternity, through public neutrality, which stops the state from either recognizing or denouncing religion. The debate of the foulard, French for scarf, and Laïcité initially started in 1989, when the headmaster of a junior high school in Creil, a suburb north of Paris, expelled three Muslim girls for wearing the veil in school. The case was referred to the Conseil d’État, and their decision was not only based on the international human right to manifest religious belief, but also on the French State obligations to guarantee the right to education. The Conseil stated that the state’s first responsibility is to protect equal chances for education. It also stated that la liberté de conscience (freedom of conscience) is “one of the fundamental principles recognized by the laws of the Republic, shared equally in the domain of education. It does not conflict with the concept of Laïcité. The frequency of such cases even dropped from 300 to 150 cases, and the law remained intact until late 2003.

The adoption of Law 2004-228 of March 15, 2004, however, created dramatic changes to policies towards the veil (SAXENA, M.). The Foulard/ Hijab for some people contradicts with the idea of Laïcité, since it represents a specific religion and this naturally opposes some of the republican values such as tolerance and equality.

The Legal Framework:

It is complicated to analyse this topic, due to the intersection between domestic laws under the French constitution and International Human Rights Law. The domestic law in France, as mentioned earlier, is secular and asserts the neutral nature of the state. However, France has acceded without any reservations to the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which recognise under Article 18 and Article 9 respectively the right to manifest religious belief (SAXENA, M.). Additionally, France is bound by the following:

  •   International Covenant on Economic, Social and Cultural Rights (ICESCR)
  •   Convention on the Elimination of all Forms of Discrimination Against Women, (CEDAW)
  •   Convention on the Rights of the Child (U.N.-CRC)
  •   International Convention on the Elimination of all Forms of Racial Discrimination, (CERD)
  •   Convention against Discrimination in Education, (CADE). (SAXENA, M.)

 Under Article 55 of the French Constitution, the norms of international human rights instruments are self-executing, so these Articles are clearly binding on the French government, which means the obligation to respect freedom of expression and religion is also part of the domestic legal system.

The Headscarf Law violates Article 27 of the ICCPR and several other international instruments by infringing on minority religious members’ rights to practice their religion in community with members of their own group (SAXENA, M.).

Article 9 of the ECHR also provides:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

 

Article 2 of Protocol No. 1 to the ECHR concerns a particular aspect of freedom of religion, namely the right of parents to ensure the education of their children in conformity with their own religious convictions:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

The ECHR clearly establishes the rights of freedom of expression and religious manifestation; however, this is not enough to effectively condemn the French law. The European Court of Human Rights (ECTHR) faced similar cases, such as Karaduman v. Turkey 1993 and Dahlab v. Switzerland 2001. In these two cases, the Court emphasized the special nature of the secular state. The headscarf is, according to the Court, ‘‘a powerful religious symbol’’ and ‘‘hard to square with gender equality’’, therefore, the removal of the headscarf is portrayed as the quid pro quo. In the two aforementioned cases, the Court ruled within the framework of the constitutional and legal order premised on the separation between religion and the state (Lyon, Dawn, and Debora Spini). The French Statsi commission used these specific cases and the Court’s reasoning to justify the 2004 law.

          In Cha’are Shalom Ve Tsedek v. France (para. 15 of the Overview of Court’s Case Law on Freedom of Religion) the European Court of Human Rights established the concept of margin of appreciation:

In this sensitive area involving the establishment of relations between the religious communities and the State, the latter in theory enjoys a wide margin of appreciation.

 The majority of the French people see the foulard as an exceptional issue, which justifies the use of margin of appreciation. The language of the law is extremely vague and general, leaving more space for debate of whether this is a case of domestic law or does it fall under the umbrella of international human rights law. Others, however, argue that freedom of expression and religion should not be seen as a domestic issue (STEINER, H. J. AND ALSTON, P.). Many international human rights organisations criticised the law, for example, Human Rights Watch stated:

The proposed law is an unwarranted infringement on the right to religious practice. For many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation.

 

Similarly, the United States Commission on International Religious Freedom, appointed by the US government, declared in its 2004 report:

In February 2004, the Commission issued a public statement expressing concern over the proposed new law. The Commission expressed particular concern that the proposed restrictions may violate France’s international human rights commitments. The Commission also stated that though increased immigration in France in recent years has created new challenges for the French government, including integration of these immigrants into French society as well as problems of public order, these challenges should be addressed directly, and not by inappropriately limiting the right to freedom of thought, conscience, religion, and belief. The French government’s promotion of its understanding of the principle of secularism should not result in violations of the internationally recognized individual right to freedom of religion or belief.

 

In the end, global views were arbitrary. International human rights law ensures the freedom of religion and freedom of expression; however, it also respects the nature of the state, and leaves a room for domestic law to rule over sensitive issues. This raises several debatable questions, such as:

  •        Is this a typical case of margin of appreciation or does it give too much power to the domestic law, violating human rights law?
  •      Does the general French legislative law leaves room for interpretation for the executive?  The word “conspicuous” signs of religions can be interpreted differently. Since the writing of the Napoleonic Code, a principle of French law has been that it must be, in the words of the great legislator Portalis, “general and abstract.” This could be seen as diminishing the value of law in general. Article 34 of the Constitution of France [13] vests power in Parliament to legislate on the “fundamental principles of teaching”, and it leaves the application of these principles to the executive branch. Parliament may have overstepped the “domain of the law” (domaine de la loi) that is set out by the Constitution only for the sake of pleasing the media and some interest groups.
  • If the French law is violating cultural and religious rights, is international law strong enough to grant citizens their rights? If not, is it because of a lack of mechanism or for practical reasons?

The Analysis

70% of the French public supported the adoption of the 2004 law; however, it flamed anger and complete refusal within the growing minority of Muslims in France. Islam is the second most practiced religion in France and Muslims constitute 8% of the population (HOWGART, K.). There were several protests against the application of this law in France and around the world, rejecting the rationale of the French government for the ban. Firstly, the 2004 law was critiqued on the basis of the relativism in the gender and equality..  When the gender issue is raised, it is often to show the distinction between the Western/European woman’ and ‘the other Oriental/migrant woman’. Imperialism had created a standardized image of women, and veiled women become alienated based on their clothing and physical appearance. Centuries ago, the case was totally different, when the Victorian morals dominated; Arabs women were the main attraction for men. The 2004 law mainly targeted the fear of clash of identity and the transformation of “multi-culturalism” into “multi-communitarianism”. This is the fear from the domination of different cultures in France and their involvement in breaking French strong republic to divided communities. The headscarf is proof that Muslims identity can never be integrated within the French identity, explaining that the root of this tension is the clash of civilizations (SCOTT, J. W.)

Secondly, some argue that this law is a form of liberation for the young Muslim women from the oppression of the veil, and its aim was to protect students from “Religious Harassment” (IDRISS, M. M). However, it denies them their right of choice, and obliges them to submit to political and legal autonomy (GERELUK, D.). Even though the law was only applied to school students, it showed the difficulty of stigmatized Muslims in the French society.

       Thirdly, one cannot deny the political dimension of the 2004 law. The polarization between the West and East was strengthened after the spread of Islamphobia in Europe, due to the 9/11 terrorist attacks. Some argued that this law was created for Chirac to gain more supporters from the right wing, supporting the Republic against the foulard.

fresque-hijab-france-source-france24 

Conclusion
The law banning the foulard was adopted in 2004, which flamed several controversial debates.  The nature of Laïcité of the French system complicates the assessment of this issue. Also, international treaties and conventions influence these judgments and raise questions regarding the validity of the margin of appreciation. In my opinion, France’s definition of Laïcité is compatible with the concept of foulard, the freedom of wearing the veil does not contradict the separation of the state and religion, and it does not threaten the identity of France. The idea of foulard does not have a single meaning, and cannot be defined by a court. The 2004 law, in my opinion, is a leap backward from the tolerance and unity of the French Republic, which always promoted the concept of Equality, Liberty and Brotherhood. The question remains will France adjust its definition of Laïcité to adapt multi-culturalism or will the failure of integration result to the minority “Ghetto-izing” and fundamentalists strengthen themselves (GEMIE, S.).

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Humanitrian Intervention in Libya 2011

UN NATO Intervention in Libya

After Qadhafi’s regime large-scale killing of civilians during February 2011, NATO addressed the United Nations’ (UN) call to the international community to secure the Libyan citizens from the drastic situation they were living in. The situation in Libya became increasingly since the revolution of February 2011; the Libyans protested against Qadhafi and called for the removal of the regime, leading to a civil war. Fifteen member of the UN Security Council voted for the military intervention in Libya as to remove Qadhafi’s regime (Resolution 1973). On 19 March 2011, a multi-state coalition started a military intervention in Libya to execute the Security Council Resolution. The UN called for a cease fire in Libya as Qadhafi was committing crimes against humanity and imposed sanctions over Qadhafi’s regime. NATO began military strikes as a UN authorized Humanitarian intervention in Libya.
The United Nations Security Council resolution 1973 formed the legitimate premise for military intervention in the Libyan Civil War, requesting an immediate ceasefire and approving the international community to create a no-fly zone and to utilize all methods necessary short of foreign occupation to protect civilians from Qadhafi. The resolution was adopted under chapter VII of United Nations charter, which allows the http://www.un.org/en/documents/charter/chapter7.shtmlUN Security Council to maintain and restore international peace and security. It permits the Council to respond to “any risk to the peace, break of the peace, or act of aggression” and to make military and nonmilitary moves to “restore global peace and security”(United Nations).
The United Nations Security Council resolution 1973 listed eight points during the intervention in Libya: it demanded the immediate enforcement of the cease fire and complete end of violence against civilians, imposed a no fly zone over Libya, authorized all necessary means to protect civilians, enforced the arms embargo against Qadhafi, imposed a ban on all Libyan flights, forced an asset freeze on assets owned by the Libyan authorities and the Libyan regime, so that these assets could be used for the benefit of the Libyan people. The resolution also provided for the arming of anti-Gaddafi forces, but this point brought massive controversy as some people argued it was illegal.” David Cameron and Hillary Clinton who both warned Muammar Gaddafi that he would face continued military action if he refuses to abide by UN Security Council resolutions 1970 and 1973” (Gabbat, Wells). Both of David Cameron and Hilary Clinton warned Qaddafi form using armed forces against civilians because this will be a breach to the UN Security Council resolution 1970 and 197; Qaddafi totally ignored the warning of both of them. The Libyan opposition forces cheered and celebrated as soon as the resolution was adopted.
There is massive distinction between UN authorized action and unilateral humanitarian intervention. According to the UN charter chapter seven ” The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”(United Nations). Humanitarian intervention could sometimes be considered legal under international law and other cases could been seen unlawful. In the Libyan case Humanitarian Intervention is considered legal because it has been proven that Qaddafi’s regime committed massacre against civilians therefore terms of intervention prevails. The situation in Libya was severe as Gaddafi was killing his own citizens without mercy and casualties were rising highly. The situation came to point that there must be an international intervention in Libya to prevent from an occurrence of a possible genocide (Kuperman).
Do we consider the intervention in Libya as a legal action? The intervention in Libya prevented a looming bloodbath in Benghazi and encouraged the ouster of Libya’s abusive ruler Muammer al Ghaddafi, who had focused on killing peaceful civilian protesters. The timing was additionally opportune, as the UN resolution gained the support of the Arab League, Organization of the Islamic Conference, and Gulf Cooperation Council. All these organizations supported the UN’s no-fly zone over Libya. States which voted in favor of the resolution agreed that the strong action was vital to protect civilians from further harm ” because the Gaddafi administration was going to unleash more savagery on the regular citizens in the restriction fortresses in the Eastern part of Libya (United Nations) Intervention by states in the region of a sovereign state is generally restricted in international law by the doctrine of non-intervention, but humanitarian intervention has been defined as the utilization of force in purpose of protecting the people of another state from treatment which is so arbitrary and persistently abusive as to surpass limits of power inside which a sovereign is alleged to act with reason and equity.
To be more specific, the starting point of the lawful investigation is the basic prohibition in international law on the utilization of armed power against the territorial reliability or political freedom of any state. The two essential special cases to the dis-allowance are self-preservation, which is clearly not applicable here, and operations approved by the United Nations Security Council in response of a danger to global peace and security. There is no doubt, subsequently, that if the U.N. Security Council passed a resolution approving the imposition of a no-fly-zone to keep up peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do as such with the full imprimatur of international law. The humanitarian intervention In Libya considered legal due to the targeting of civilians by Qaddafi’s regime and according the security council qaddafi was pressured by the US and international community to take actions to take actions to protect people.

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The unheard voices

In 1951 Egypt signed then ratified in 1981 the 1951 Convention Relating to the Status of Refugees (Refugee Convention) in. Article 33 of the 1951 Refugee Convention states that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (Convention and Protocol 32). This blog will address the question of whether Egypt has failed to demonstrate its commitment to article 33 of the Refugee Convention in dealing with Sudanese refugees, specifically with regard to non-refoulement and legal aid. Despite Egypt’s promise to adhere to this article, it has proven itself neglecting on numerous occasions.

  1. The Legal Framework

In 1951 an  international conference held in Geneva resulted in the adoption of the 1951 Refugee Convention, which aimed to ensure the rights and adequate treatment of persons that became refugees “as a result of events occurring before 1 January 1951”, i.e. European refugees resulting from the Second World War. In 1967 a Protocol to the Convention was adopted to expand the definition of refugee to include people fleeing persecution in the rest of the world. The definition of a refugee in the refugee convention is when a person is in jeopardy of being persecuted. Persecution must be centered on the bases of religion, race, nationality, political opinion, and membership in a certain group. The main determinant of the whether the person will be considered a refugee or not Refugee Status Determination (RSD) office through the guidelines made by the UNHCR. (The protection of refugees: The case of Egypt)  States are responsible for providing protection to its citizens; however, when they are refugees this protection fades. As in most cases, their own states are the ones performing the threat of persecution. Therefore, they will need protection from other states. The protection is basically guarantying the basic human rights for the refugees in the states of asylum and that they will not be refouled to their home state where they will face persecution. Also offering the refugees durable solutions to their problems by integrating in states of asylum or in some cases resettling in another country. The protection is provided by the UNHCR staff all over the world. Their main objective is to provide physical and legal protection. (UNHCR Protection)

  1. Article 33 of the Refugee Convention PROHIBITION OF EXPULSION OR RETURN (REFOULEMENT)
  2. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
  3. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly of a particularly series crime, constitutes a danger to the community of that country. (The Refugee Convention 1951).

Any refugee, who is physically in a country regardless of being a legal refugee or not, cannot be refouled as long as his/her return to would threaten his/her life, security, or freedom. The only limitation on this principle is the so-called ‘criminal offence exception’, namely i.  If the restriction applies to the individual that is seeking asylum then the state where the refugee is seeking asylum has the right to either refuse or arrest the refugee, more than likely to deport him. The principle of non-refoulement has the status of jus cogens. It is a peremptory norm in international law that no interpretation or derogation is allowed. As the principle stresses on the right of individuals to move to seek asylum and not be refouled to where their freedoms or lives may be in jeopardy. Therefore, the jus cogens nature of the non-refoulement is preserved. (The jus cogens nature of non-refoulement)

Egypt signed the Geneva Convention in 1951 and ratified it in 1981 with the consideration of five reservations on provisions. The reservations are basically limiting the Egyptian role into just being a host with no duties to offer to the refugees. For example, Article 22 section 1 of the Geneva Convention of depriving the refugees from the right of getting education in Egyptian public schools, article 24 of the convention (social security and labor legislation), article 12(1) (personal status), and article 23 (public relief and assistance). From these examples we could understand that Egypt is excluding itself from any services that could be offered. This is Egypt’s main arguments that it uses to legally maneuver its way out of any accusations

  1. Case study: South Sudanese Refugees in Egypt

Before the secession of South Sudan from the Republic of Sudan there was a civil war from 1983 till 2005. One of the main reasons for the civil war was religious intolerance. The northern leaders were in favor of implementing religious rule and policies and the southern population had different religious beliefs and culture. Crops were burned down, Villages were destroyed, at least millions were killed and double that number fled to neighboring countries either by force or by evading from unfortunate conditions, and indeed this led to the separation of many families. The civil war led to flee of around four million, including families that were separated, and children without adults to take care of them. People escaped from Sudan due to the mass persecution. (Fleeing the homeland) One of the most attracting states is Egypt for several reasons and most importantly a good UNHCR office which gives the refugee better changes of resettling in a western country. The Sudanese refugees that are registered in the UNHCR are 25000; however, the estimated numbers of only Sudanese are one to four million living with no education, no money, no jobs, and no rights. These refugees live in extremely inhumane conditions, degrading treatment ex: racism, rape, discrimination.

Refugees are among one of the most vulnerable individuals in the world and therefore, they seek asylum. When they come to find no rights, host that refuses to help them, unfortunate circumstances (Sudanese struggle in the streets of Cairo). Regardless of the inopportune conditions there is a much worse problem which is not getting accepted as a refugee from the UNHCR. The chance of interview is possible; however, a refugee would never know the reason for getting rejected. On a factual level there are many things that negatively influence the performance of the refugee while conducting the interview such as: Trauma from the tragedy that they lived, not able to fluently express why they are seeking asylum in a different language, or even lack of resources (for example, the interviewer could be concerned with finishing the interview quickly in order to be able to conduct another interview).   How the process is implemented puts the refugee in jeopardy and rises the chances of not receiving the physical protection. This leaves the applicants with the risk of refoulement

Mr. Faisal Mohamed Haroun refugee from Darfur and are registered in the UNHCR, was detained. The Egyptian government has made a decision to deport him on the 16 January 2011 at 11:00 from Cairo Airport in the Administrative Court case no. 47889. He was accused by the Egyptian authority of trying to cross the border with Israel illegally from the city of Sheikh Zuwayid. Also later the Egyptian authority claimed that he has a hand in the refugee and weapon trafficking in this area. As this human trafficking process happens in this area almost every day, thousands are arrested, and some could die before even going to court. When refugees are detained in police stations they are at risk of being refouled. Since it is stated in the Sudanese constitution the citizens are not allowed to go to Israel then this gives the Sudanese government a reason to execute them. In this case, the acts of the Egyptian government are a pure breach of Article 33 of the Geneva Convention as it sends to a state where there is a threat to his life or security. Detention without evidence of the accusations, mistreatment, refusing to allow his family or even lawyers to see him, and threat of refoulement makes up a violation of his human rights and as refugees, including violations of the obligations promised to him by the Egyptian state by virtue as it signed the convention related to the status of refugees and additional international treaties.  I interpret the Egyptian government’s ambiguous position as an act of political favor to the Sudanese government. The detainee’s families are notorious of opposing the Sudanese government and are leaders of an association that aid the darfuri refugees. (EFRR-Egypt) Unfortunately this has not been the first case to be treated in this manner with the same accusation and with no evidence.

As a conclusion, Egypt has breached Article 33 of the 1951 Geneva Convention which Egypt signed and ratified. Firstly, Egypt detained refugees arbitrarily. Secondly, threatening refugees with removal by force back home to where they will face persecution (A clear act of refoulement).

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Controversial Renaissance Dam?

Introduction

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The River Nile is a common river between eleven states; the Nile Basin states. The upstream countries are Kenya, Ethiopia, Uganda, Tanzania, Rwanda, Burundi, and the Democratic Republic of Congo, while the downstream states are Egypt, Sudan, and South Sudan, and Eritrea. Lately, and especially after the 25 January 2011 uprising in Egypt, the case of building the Ethiopian Renaissance Dam on the Nile has come to surface. The issue is that in 2011, Ethiopia announced publicly the initiative to construct the Grand Renaissance Dam, despite having been in the works since December 2010. The first negotiations between the two most concerned countries; Egypt and Ethiopia started in January 2014.

AFRICA: Nile River basin water dispute

Opinions within and amid states directly concerned; Ethiopia, Sudan, and Egypt differ on whether Ethiopia has the right to build the dam. The discussions center on the interpretation of previous agreements, in addition to national security, political and economic reasons. This case has witnessed aired debates, research debates, political negotiations, technical meetings, and even popular visits to avoid what seemed to be an approaching clash after a rise in the tone of verbal statements from both Ethiopian and Egyptian officials.

Agreements

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Previous agreements regarding the use of the Nile waters were concluded in 1889, 1891, and 1902 between the British and the Italians and later Ethiopia that acknowledged Egypt’s natural and historic rights to its fair share of the Nile’s water. In 1929, Britain (during its military occupation of Egypt) concluded a treaty with Egypt that was the culmination of all the previous agreements that stated that “no work could be undertaken on the Nile and its tributaries without Egypt’s acceptance”. No specific cases or characteristics of work were mentioned. In 1959, Egypt and Sudan re-negotiated the 1929 agreement for building the High dam in Aswan. This treaty was beneficial for both countries and increased their shares of the waters. No other states of the Nile Basin (including Ethiopia) were included in either of the 1929 and 1959 agreements, and no other agreements were concluded after 1959 agreement concerning the waters of the Nile as per Egypt’s share.

In 1999, the Nile Basin Initiative (NBI) was formed as to enhance basin-wide technical cooperation in the Nile basin. In May 2010, the upstream basin states signed a Cooperative Framework Agreement (CFA), the Entebbe agreement provides that states are entitled to an equitable and reasonable use of the Nile waters subject to the principles of not causing significant harm to other basin states. Egypt and Sudan refused to sign this agreement with reservations related to the guarantee they would still have of their existent shares of waters. Also, Egypt had a reservation that conditioned a notice prior to constructing any projects on the Nile, (which according to the upstream perspective meant that Egypt and Sudan would have a veto).

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The Grand Ethiopian Renaissance Dam (GERD)

 In March 2011, and right after the uprising in Egypt and the toppling of the Egyptian president, Ethiopia started to build the Renaissance Dam on the Blue Nile; one of the two main tributaries of the Nile, without endorsement from either Egypt or Sudan. Opinions varied on the consequences of building this dam and its expected effect on the Egyptian share of water during and after constructing the dam.

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In a visit to Ethiopia in May 2011, an official delegation consisting of a group of popular Egyptian figures managed to negotiate delaying the ratification of the CFA until the election of a new Egyptian parliament and president, and suggested the formation of a tripartite committee to study the effect of building the Renaissance dam and to give a technical opinion of its impact on water distribution. And according to Brooke Kantor in Harvard Political Review, the tripartite committee concluded that the dam will not do any significant harm to any of the basin states and that Ethiopia will use the water to generate electricity and not for irrigation; so, no water will be consumed. The Committee also concluded that studies were still needed and that Ethiopia had not presented enough studies to show that Egypt and Sudan would not be harmed. Also, it said that the current design of the dam was not optimal to avoid harm.

 

 Legal Analysis

This issue has affected international relations between the riparian states for years, and it underwent many studies and researches as per the legality of building GERD. Legal perspectives considered interpretation of 1902 agreement, the impact of independence on the treaty, if the treaty binds non-party states, and if it is legal for Egypt and Sudan to practice monopoly over the Nile.

  • Interpretation:

According to Vienna Convention on the Law of Treaties (VCLT), Article 31 deals with the interpretation of treaties and contains the principle of pacta sunt servanda; interpretation in good faith. But according to Africa Spectrum Journal, the problem in this agreement is that the meanings are different between the texts of the two different languages; English and Amharic. As while the English version reads:

“His Majesty the Emperor Men[e]lik II, King of Kings of Ethiopia, engages himself towards the government of His Britannic Majesty not to construct or allow to be constructed any work across the Blue Nile, Lake Tana, or the Sobat which would arrest the flow of their waters except in agreement with His Britannic Majesty’s Government and the Government of Sudan.”

 The Amharic version reads:

“His Majesty, King of Kings of Ethiopia, has entered into the commitment of not giving permission to any work that fully arrests the flow of the Blue Nile, Lake Tsana or the Sobat, which empty into the White Nile, without making a prior agreement with the British government.” (Author’s translation)

 So, the English version states that for Ethiopia to construct anything on the Nile, It must first take permission from both the British and the Sudanese government, while the Amharic version states that the permission should only be taken from the British government. Another point is that the English version prohibits any construction before taking permission, while the Amharic version states “any work that fully arrests the flow”. It shows then that this is a controversial issue already.

  • Ethiopia’s Independence:

In The Vienna Convention on Succession of States in Respect of Treaties, Article 16, it is stated that the state does not inherit the treaty obligations of its colonial power. Applying this rule to GERD case, we find that the 1902 treaty was concluded by Ethiopia and UK while Ethiopia was a sovereign independent state. Also, the treaty is a boundary treaty, which remains in force according to article 11 of the Vienna Convention.

  •  Non-Party States:

According to Articles 34-38 of the Vienna Convention on the Law of Treaties of 1969 that deals with the relationship between treaties and third parties, the non-party states have no positive or negative relations as for the treaty; no rights and no obligations.

  • Practicing Monopoly:

International law is about legally solving debates and disagreements between states. Ethiopia’s argument that a monopoly is being practiced by the downstream states is a matter that should be submitted to the International Court of Justice, which should settle the dispute according to the principles of international law.

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Declaration of Principles

In March 2015, Egypt, Sudan and Ethiopia signed a Declaration of Principles that included principles of:

  • Cooperation
  • Development, regional integration and sustainability
  • Not causing significant damage
  • Fair and appropriate use
  • The principle of the dam’s storage reservoir first filling, and dam operation policies
  • Building trust
  • Exchange of information and data
  • Dam security
  • Sovereignty, unity, and territorial integrity of the state
  • Peaceful settlement of disputes

The details of the principles are so vague with no certain commitments rather than the idea of further negotiations and communication. The declaration mentioned a preparation for two agreements to be concluded between the GERD concerned parties (Egypt, Sudan, and Ethiopia); one of them is for constructing and filling of the dam, while the other is for guidelines and annual operation policy. A time frame was specified for concluding these two agreements as per the reports of the international technical committee. This seems to be a positive development in ending the stalemate between the three states, but the fact that old agreements are still controversial shall be settled too.

 

Conclusion

This is not the first dam for Ethiopia to construct on the Blue Nile, but the others were medium in size and were not expected to affect the flow of water like the GERD. The river Nile is common between many states, and agreements between only three of those states will only act as an instant temporary short-sighted solution. I believe Egypt should submit this case to the International Court of Justice to solve it and that all parties have to submit a well prepared case studies for each of the states’ needed share in water, this in addition to negotiations between all basin states to reach an agreement or more that should be satisfying for each of them.

the Grand Ethiopian Renaissance Dam (GERD)

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International Law and the Preemptive Use of Military Force in Yemen

The government of Saudi Arabia (KSA) initiated a military intervention in Yemen led by a coalition of countries that includes Jordan, United Arab Emirates, Kuwait, Qatar, Morocco, Sudan, Bahrain, Oman, and Egypt (Weizmann, “International Law on the Saudi-Led Military Operations in Yemen.”). According to Cop, in this case one can say that the use of force is legal because:
1. The military intervention was in response to an invitation by the Yemeni president.
The Yemeni president made a request to the Arab leaders to help him against the Houthi rebels’ aggression. He made this request in the name of the UN charter article 51 principle of self-defense. Since the Yemeni president made the request, the intervention by Saudi Arabia is legal and does not pose a violation to the prohibition of the use of force under article 2(4) of the UN Charter (Weizmann, “International Law on the Saudi-Led Military Operations in Yemen.”).
2. Iranian support to Houthi rebels in Yemen poses a direct threat to KSA and the Middle East.
Iran is slowly and steadily trying to revive its Persian Empire glory once again. It has been doing this through the support of Shi’a sects throughout the Middle East. It gave support to the Bashar El Assad regime in Syria, it gave financial support and weapons to the Hezbollah party in Lebanon, it is supporting the Shi’a majority in Iraq, and now it is supporting the Houthi rebels in Yemen to overthrow the government (Denison, “Is Iran Rebuilding The Persian Empire?”).

Is the coalition’s military intervention a lawful use of preemptive force?
Clearly Saudi Arabia is not only intervening because of the Yemeni president’s request but also because the imminent threat that Saudi Arabia and the rest of the Middle East is facing. Iran as a rising superpower is a ‘’nightmare’’ to Saudi Arabia because not only will Iran gain control over the Middle East but also over the Saudi Arabian Peninsula. Thus it is arguable that Saudi Arabia has demonstrated necessity of self-defense (Denison, “Is Iran Rebuilding The Persian Empire?”). But is pre-emptive self-defense legal?

Before the UN charter
Long before the UN Charter was adopted, customary international law accepted the use of preemption in the case of self-defense. The acceptance entailed that the use of preemption in anticipation of self-defense was acceptable (Arend, “International Law and the Preemptive Use of Military Force.”).
Those states that use force to defend themselves need to provide proof of necessity. The state needs to prove that the “necessity of that self-defense is instant, overwhelming, and leaving
no choice of means, and no moment of deliberation.” This means that the state has to provide proof that it had no other choice but use force to protect itself from the imminent threat (Arend, “International Law and the Preemptive Use of Military Force.”).
The second criterion that a state has to follow is proportionality. The state has to act in a manner of proportion to the threat. Assuming that necessity authorized the entry of the enemy’s territory, the state must act in a manner that is not excessive or unreasonable since the entry was supervised by the ‘’necessity to Self-defense’’ therefore the act must be kept within that framework (Arend, “International Law and the Preemptive Use of Military Force.”).
The UN Charter
After the end of World War II, the framers of the UN charter wanted to establish a system that would protect future generations from the scourge of war and they intended to do that through the restriction of the use of force. They created article 2(4) under the UN charter that tells states to ‘’refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations.’’ Use of force is only permissible in two cases: use of force in self-defense (Article 51) and use of force that is authorized by the Security Council (Article 42) (Arend, “International Law and the Preemptive Use of Military Force.”).
Even though the wording of articles 51 is clear it caused a divide between scholars. On one side, there are those scholars, sometimes called the ‘‘restrictionists’’, who interpret article 51 as a restriction to the use of force and limit it only in the case of self defense when the enemy state has already launched a military attack. From this perspective, the use of preemption is prohibited and thus also illegal (Arend, “International Law and the Preemptive Use of Military Force.”).
On the other hand there are other scholars, sometimes called the ‘’counterrestrictionists’’, who believe that article 51 does not restrict ‘’the preexisting customary right of anticipatory self-defense’’. A typical counterrestrictionist would argue that the ‘’inherent right’’ reference in article 51 actually means the continuation of the pre charter context of the use of force which is the ‘’customary right of anticipatory self-defense’’ (Arend, “International Law and the Preemptive Use of Military Force.”).
Counterrestrictionsists emphasize that there are international precedents for the pre-emptive use of military force. After the events of 9/11, US foreign policy shifted away from the policy of deterrence and containment that was used during the cold war. The administration formulated a new national security strategy. A key component of this new strategy is preemption, which basically entails that the US can attack the enemy before the enemy uses force first. Preemption has been hotly debated in the arena of international law and still remains controversial (Arend, “International Law and the Preemptive Use of Military Force.”).
Preemption is only justifiable when it is in conformity with international Law.
The Bush doctrine
The Bush doctrine, which has been expanded and prolonged under the current administration, has serious implications and may jeopardize international peace and security. The doctrine is unable to distinguish between unlawful aggression and preemption. In consequence, other states may believe that it is their right to take any action against an enemy state. The Bush doctrine therefore does not concern itself with the basics of international relations and the advantages of proper multilateralism(Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
The Bush doctrine is very vague about the type of state action towards imminent issues, such as that of weapons of mass destruction. It also does not give any details about the timing or the purpose of a pre-emptive attack. The only point the doctrine was clear about is how the US self-assesses an imminent danger. The US definition of a threat includes an enemy-state increasing it nuclear power capability or adding biological weapons to its stockpiles. From this perspective, North Korea is a clear threat to the US (Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
Many warned against the atrocities that could stem out of the Bush Doctrine. The doctrine gives leeway to ‘’more powerful states’’ to ‘’use it as a rationale to settle scores against weaker states that are deemed to pose a threat to the stronger nation’s security’’. Henry Kissinger was one of the first people to really highlight the dangers of the Bush doctrine when he said ‘’it cannot be in either the American national interest or the world’s interest to develop principles that grant every nation an unfettered right of pre-emption against its own definition of threats to its security’’. US was finally able to recognize the dangers of the doctrine and set out to warn other nations, especially India against the use of preemption but many criticized the US and argued that the US contradicts itself because it is setting to warn others but still reserves the right of preemption to itself (Gupta,”The Doctrine Of Pre-emptive Strike: Application And Implications During The Administration Of President George W. Bush.”).
Was the preemptive invasion of Iraq a violation of international law?
The Anglo-American interference in Iraq in the spring of 2003 has been very controversial and many went into debate on whether the intervention was legal and whether it was justifiable. The intervention in Iraq is debatable because of the discrepancies between preemption and international law (Cop, “Has the Military Action against Iraq Transformed System of Law Governing Use of Force?”).
According to Arthur Schlesinger Jr, former Secretary of State to President Kennedy, The Iraq invasion is not a preemptive war but more likely a preventive war because the ground on which preemptive attack is legal is when the state (US) shows necessity. In other words, for the Iraq invasion to be perceived as a preemptive attack the US should have demonstrated that it had no other choice but attack which was not the case in Iraq (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
The UN should have issued another resolution, says Kofi Anan Secretary General of the UN because ‘’the Security Council indicated that if Iraq did not comply there would be consequences’’. And that it was the Security Council role to conceive those consequences. Since the Security Council did not approve the attack then it does not conform to the UN charter and it is thus illegal (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
According to Erwin Chemerinsky, Professor of law and political science at Duke University, the invasion of Iraq was illegal because nothing under international law gives the right to another state to use ‘’preemptive war to overthrow a government and disarm it’’ and like Arthur Schlesinger said, the attack fit none of the exceptions under which preemption is accepted (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
Having taken the views of these prominent figures and most importantly the view of the former secretary general of the UN, one can certainly say that the invasion of Iraq is certainly a breach of international law (“Was the Preemptive Invasion of Iraq a Violation of International Law?’’).
Conclusion
Preemption is only justifiable when it is in conformity with international Law. By contrasting the case of Yemen to Iraq it became possible to distinguish when Preemption is Justifiable and when it’s not. In one’s opinion, Yemen is a clear case of a justifiable and perhaps a legal use of preemption because Saudi Arabia has demonstrated a necessity of self-defense. Also the invitation Saudi Arabia received from the Yemeni president solidified its position. On the other hand, the invasion of Iraq can serve as an example of a breach to international Law regarding the use of force. In the case of Iraq, The use of Preemption was unreasonable and was not based on necessity of self defense. The US has adopted its own definition of preemption which is discrepant to International law.

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Anti-ISIS Coalition Strikes in Iraq and Syria: Legal or Illegal?

 

“Article 51 

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Lawyer and legal analyst, Ashley Deeks,  summarized a number of areas of concern within international law affecting the then proposed US led effort to conduct airstrikes against ISIS last August. These discussions related to a number of options being considered at the time, as justifications under international law, and included among others, the argument for self-defense.

The self-defense argument has multiple sub-arguments under the UN Charter. These include: basic self-defense; anticipatory self-defense, and collective self-defense. The argument that was ultimately chosen by the US, UK and Canada, as well as Jordan, was ‘collective self-defense’.

As Article 51 makes clear, the argument for collective self-defense allows Iraq to ask for other states to help it protect itself from further attacks against it within Iraq by going after ISIS forces in Syria who have attacked in Iraq and withdrawn to Syria. The thinking at the time was that it was not a likely argument because it depends on Iraq’s consent which could be withdrawn and might affect US national interests. So, it is interesting that in fact, that has been the argument chosen to defend the air strikes.

Following the burning by ISIS of a Jordanian pilot, Jordan announced in February 2015 that it would attack ISIS based possibly on a new argument, that of individual self-defense. However, as Deeks points out, the attacks carried out by Jordan would have to be in balance with the type and severity of attack – that of a single pilot – and, as a result would “be more constrained than under an argument of collective self-defense” (Deeks, 2014).

In March, Canada became the third country after the US and Israel to justify its attacks against ISIS in Syria based on an argument for attacking “mischief-making ‘non-state actors’”, an argument similar to the individual self-defense argument but extended to include attacks by states against perceived and specific threats of non-state groups, like ISIS, regardless of arguments regarding sovereignty – which has been floated as an argument for the illegality of the air strikes (Kampmark, 2015).

Key to all these arguments has been Syria’s apparent lack of consent and the invoking of self-defense arguments. James Bezan, Parliamentary Secretary to the Minister of Defense for the Canadian government is quoted in a March 28, 2015 article as justifying their support of airstrikes against ISIS in Syria, saying, “Collectively, the coalition – which includes the government of Iraq – needs to defend themselves and have the right to defend themselves from ISIL [ISIS]” (Kampmark, 2015).  This view was further supported by Foreign Affairs Minister Rob Nicholson who argued, “[i]f Syria is unable or unwilling to prevent ISIL from staging operations into Iraq, that is a legal justification to get involved” (Kampmark, 2015).

The argument against this view, however, is Syria’s sovereignty. The self-defense argument evolved under former US president, George W. Bush and Israel, to justify the invasion of Iraq in the 2001 US Congress Authorisation for Use of Military Force Against Terrorists resolution (Kampmark, 2015). It is an argument that ignores the boundaries between states and gives unlimited power to a government for carrying out acts of retaliation and attacks against those who are perceived to be a threat regardless of the state they are in. It does not require the consent of the local government meaning that any government can attack individuals or groups or any target, in fact, that is perceived to be a threat to the attacking country and its interests. In other words, there is no protection that a state can provide its citizens from attacks against them based on another state’s assessment of their level of threat to that state. No one is protected anywhere. And, there are really no limitations, restrictions or criteria for making that judgement.

How and who defines a group as a threat becomes important. It becomes possible to justify not simply the anti-ISIS coalition attacks, but, theoretically, if ISIS becomes the government of a state, it would be justified in going after the anti-ISIS coalition within the borders of the anti-ISIS coalition member states. And, this is a frightening possibility.

Ironically, it really does not matter much as both sides are carrying out their attacks regardless of the legal arguments in favor or against. The need to defend the self-interest of the members of the anti-ISIS coalition is clear. An attack on the USA, UK or Canada might ensure an all-out and devastating war, some might even say, the feared World War III. On the other hand, the reverse is possible if ISIS manages to create a larger pro-ISIS coalition of forces and argue that they are only acting in self-defense. In either case, the dangers remain as the attacks on both sides continue and are escalating. (Deeks, 2014)

These two camps in the argument regarding the legal justification for the strikes against ISIS, the argument of self-defense and the argument for sovereignty, characterize the debate which has become heated because ISIS is a new type of problem as it is a group that claims the rights of a government and state, justifying its own attacks based on its argument for self-defense and sovereignty. (Kampmark, 2015).

What is interesting about all this is that the American planes/drones are flying over Syria without fear of attack by Syria. In other words, if not formally, then tacitly, it appears, Assad is giving consent to the attacks. Syrian forces have not retaliated even though there has been no formal consent given. In this regard, despite the traditional views regarding sovereignty that focus on if Canada is not attacked by Syria then they cannot attack Syria in self-defense, it can be argued that in real, tangible fact, Syria has given consent to the anti-ISIS coalition to attack ISIS targets within its borders. Assad’s ‘inability to gain control’ over the situation within Syrian borders bolsters the assumption that informally he accepts the help of the anti-ISIS coalition forces.

Legal arguments usually follow acts, situations and policies that have already come into place, as in the last 14 year history of attacks by the US within borders in order to justify them. In this case, it seems also to be true. However, the unique problem created by ISIS as a self-proclaimed sovereign state that has yet to be acknowledged by the rest of the world as a state, using a legitimate state as refuge and home base for its own attacks, requires the development of more appropriate legal constraints that can protect states under threat and intimidation such as Syria as well as the US. The legal arguments for the attacks are undeniably there, if shaky in regards to the defenses of sovereignty. However, regardless of the choices, depending on the strength and ability of non-anti-ISIS coalition forces to engage in further armed conflict, the world is facing a serious and real threat of global conflict.

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