Legal Opinion ALSA LC UNUD Volume 02 No. 2

Volume 02 No. 2

SYRIA’S WAR: FROM THE GOVERNMENT’S INHUMAN ACTS TO THE INTERNATIONALIZED ARMED CONFLICT?

ALSA

English Development Division

LC UNUD LEGAL OPINION

Author : I Komang Ayu Nuriasih Universitas Udayana

ǀ ALSA LC UNUD LEGAL REVIEW

ALSA LC UNUD LEGAL OPINION SYRIA’S WAR: FROM THE GOVERNMENT’S INHUMAN ACTS TO THE INTERNATIONALIZED ARMED CONFLICT? Komang Ayu Nuriasih Universitas Udayana

I. Overview and Subject of the Case The present case concerns about both human rights and humanitarian law, where the peaceful protests erupted in Syria on March 2011 had resulted in many oppressions by the governmental authorities. Such situation was followed by the defections from their military; establishing a four-year-conflict between the rebel group and the government before it culminated in the military interventions from another States supporting each party.

II. STATEMENT OF FACTS 1. Following the detention and torture against 15 boys who wrote graffiti supporting Arab spring (one of them were killed), peaceful protests were brought by the people of Syria on March 2011. Responding to the protests, the protests, the Syrian government killed hundreds of demonstrators and

ǀ ALSA LC UNUD LEGAL REVIEW

imprisoned many more under the authority of President Bashar al-Assad.

2. A rebel group called The Free Syrian Army (“TFSA”) was announced on July 2011, followed by the “war” between TFSA and the governmental authorities.

3. A stark sectarian tension was also shown throughout the conflict, as most Syrians are Sunni Muslims while the Alawi sect (of which Assad is a member) has been dominating Syria’s security establishment.

4. The governments of majority-Shia Iran and Iraq, and Lebanon-based Hezbollah have been supporting Assad, while the anti-Assad rebels have been supported by the Sunni-majority countries including Turkey, Qatar, and Saudi Arabia.

5. Since 2016, several operations have been launched by the Turkish troops against the Islamic State of Iraq and the Levant (“ISIL”), as well as against Kurdish groups armed by the US. Furthermore, US has armed anti-Assad groups and led an international coalition bombing ISIL targets since 2014.

6. Israel carried out air raids inside Syria, reportedly targeting Hezbollah and pro-government fighters and facilities. Israeli warplane was first shot down by the Syrian air on February 2018.

(Referring to the source provided: https://www.aljazeera.com/news/2018/4/14/syrias-war-explainedfrom-the-beginning)

III. ISSUES Having established the aforementioned facts, three issues will be raised in this writing. First, is whether there is any justification for the response of the Assad government; second, is whether the intervention from another States is justifiable, and; third, is whether the attacks against ISIL and the attacks carried out by Israel are legitimate.

IV. APPLICABLE LAWS 1. Charter of the United Nations (1945) 2. The Geneva Conventions of 12 August 1949 (1949) 3. International Covenant on Civil and Political Rights (1976) 4. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) 5. United Nations Convention on the Rights of the Child (1990)

ǀ ALSA LC UNUD LEGAL REVIEW

6. Universal Declaration of Human Rights (1948) 7. United Nations General Assembly Resolution A/RES/2625 (1970) 8. Constitution of Syria (2012) V. ANALYSIS I.

Peaceful Protests and the Response from the Assad Government It is a common sense that torture and inhuman treatment have no place to be

justified. As a clear benchmark for the universal human rights standards, 1 the Universal Declaration of Human Rights (“UDHR”) explicitly enshrined in Article 5 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Moreover, no one shall be subjected to arbitrary arrest, detention or exile,2 and the freedom of opinion and expression is entitled to every person.3 The Peaceful protests brought by the Syrian people after the detention and torture of 15 boys were the acts justifiable as the Assad government had violated the State’s duty towards their own people. It is already to be acknowledged that the victims were all children who are entitled to substantial protections under the United Nations Convention on the Rights of the Child (“CRC”), or at the very least, the 13-year-old killed were so.4 The convention clearly set out in Article

2(2) that all State parties, therefore Syria, shall take all appropriate measures to 1 Amnesty International, “WHAT WE DO: Universal Declaration of Human Rights”, URL: https://www.amnesty.org/en/what-we-do/universal-declaration-of-humanrights/#:~:text=The %20UDHR%20is%2C%20as%20its,constitutions%20and%20domestic%20legal%20framew orks (Accessed November 20th, 2020).

2 UDHR, Article 9.

3 UDHR, Article 19.

4 Pursuant to the CRC, Article 1.

ǀ ALSA LC UNUD LEGAL REVIEW

ensure the child’s protection against any discrimination or punishment, inter alia, on the basis of their activities and expressed opinions. Crucially, Syria is also obliged to recognize the right to life entitled to every child and to maximally ensure their survival, to take the appropriate measures to protect them from all forms of violence, as well as to ensure the absence of the child being subject to torture or other cruel treatment or punishment.5 On the child’s side, the victims were entitled to the right to freely express themself in all forms including art,6 thus the examination of whether writing graffiti allegedly supporting Arab spring constitutes a sufficient restriction ground to protect the national security or public order7 shall require further investigation.

Albeit it is proven that they had infringed the penal law, they shall remain to be treated in a manner consistent with the promotion of their sense of dignity and worth.8 Having their heart moved by such emergencies, the Syrian people who brought protests that is in the nature peaceful were seeking justice to the governmental authorities, yet the Assad government took such immediate and violent handling inconsistent with the human rights law, especially that not only Syria is an original members of the United Nations (“UN”), 8 but also a State party to the International Covenant on Civil and Political Rights (“ICCPR”) and the United Nations Convention against Torture (“UNCT”).

So what is ‘torture’? This term covers any act by which severe physical or mental pain or suffering is intentionally inflicted, inter alia, to punish that person, and that such act is done with the consent of public official. 9 Does then a peaceful protest, by any legal view, constitute a criminal offence? It is rather a violation to prohibit such protest as the concrete form of ‘freedom of expression’ protected by Article 19 of both UDHR and ICCPR.10 Carrying UDHR principles, ICCPR and UNCT set forth to the large degree the provisions that condemn the government’s act. It is clear, again, that no person shall be arbitrarily deprived of his/her life, or to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.11 Syria has indeed a duty to take effective measures to prevent acts of torture, as no exceptional circumstances, not 5 CRC, Article 6, 19(1), 37(a).

6 CRC, Article 13(1).

7 Pursuant to the CRC, Article 13(2)(b).

8

CRC, Article 40.

8 United Nations, “Growth in United Nations membership, 1945-present”, URL: https://www.un.org/en/sections/member-states/growth-united-nations-membership-1945present/index.html (Accessed November 23rd, 2020).

9 UNCT, Article 1.

10 UDHR, Article 19; ICCPR, Article 19.

11 ICCPR, Article 6&7.

ǀ ALSA LC UNUD LEGAL REVIEW

even a state of war or a public authority; can be invoked as a justification of torture.12 ICCPR

Article further

9

of

set

the

provisions against arbitrary arrest

and

detention,

including the importance of valid reasons and charges being informed to the arrested, the right to take proceedings before a court, and most importantly, that the victim of unlawful arrest or detention shall have an enforceable right to compensation.

As the list goes long, it is rather coherent that the act of Assad government has violated the State’s very own constitution. It could not be stated clearer in the Constitution of Syria,13 that: “Society in the Syrian Arab Republic shall be based on the basis of solidarity, symbiosis and respect for the principles of social justice, freedom, equality and maintenance of human dignity of every individual”. The Constitution also condemns the act of torture,14 recognizes the freedom as a sacred right and obligates the State to guarantee the personal freedom of citizens and to preserve their dignity and security.

15

Not to question nor neglect that,

substantially, to assemble and to peacefully demonstrate is a right of the citizens,16 thus no punishment shall be subjected to them.17 Should it be necessary, investigation and arrest of a person shall only be issued by the competent judicial authority,18 and the arrested must again be informed of the reasons for such arrest and of his/her rights.19 Having all the legal basis explicit and consistent, it might only be one thing assumptive, that Article 117 of the Constitution grants the President of the Republic, therefore Assad, an immune from the responsibility for the acts he does in carrying out his duties. However it shall be beyond doubt that, referring to both international and national laws, no duties shall allow a President to justify the commission of violence being contrary to the State’s principles, as Article 96 also 12 UNCT, Article 2.

13 Constitution of Syria, Article 19.

14 Constitution of Syria, Article 53(2); as obliged in Article 4 of the UNCT to ensure all acts of torture are offences under each State Party’s criminal law.

15 Constitution of Syria, Article 33(1).

16 Constitution of Syria, Article 44.

17 Constitution of Syria, Article 51(1); ICCPR, Article 15.

18 Constitution of Syria, Article 53(1).

19 Constitution of Syria, Article 53(3).

ǀ ALSA LC UNUD LEGAL REVIEW

obliged Assad to insure respect for the Constitution. Notwithstanding any needs for further investigation, the acts carried out under Assad’s authority; killing hundreds of his people and imprisoning many more, are indeed sufficiently alarming to be constituted as high treason.

Taking into account all the controversial and inhuman acts committed by the Assad government, there exists no justification to the present issue; not even the immunity entitled to Assad as the President under the Constitution of Syria.

II.

Intervention from Another States Moving on to the next issue emerging from the continuance of Syria’s

internal conflict, the analysis will generally focus on the legality of the States’ intervention and examine whether such act happening often in the field can be justified.

To start the analysis, what does this term ‘intervention’ refer to? It may refer to many things, including interference in domestic affairs or foreign affairs; specific forms of action; foreign penetration with unworthy motives; coercion; and any act of influence among sovereign state.20 In a particular context, military intervention can be defined as the beginning of blatant acts of military force in another country.21 Such intervention, indeed, can be found mainly in IHL field theory; as for example is regarding the internationalized character of an armed conflict, where IHL cases like Prlić,22 Tadić,24 and Čelebići23 explicitly ruled that the existence of intervention from another States in a conflict through its troops renders an internal armed conflict to an international one.

It is said that in the past, States brooked no interference in the way they dealt with their domestic affairs including internal conflict, as the principle to refrain from intervening was widely accepted.24 Such principle is set forth in the Charter of the United Nations (“UN Charter”), as first and foremost, it is stated in Article 2(1) of the Charter that the UN is based on the principle of the sovereign equality of all States. Moreover, it is substantially stated in Article 2(4) that: “All Members shall refrain in their international relations from the threat or use of 20 Tillema, H. K., & Wingen, J. R. V. (1982). Law and Power in Military Intervention: Major States after World War II. International Studies Quarterly, 26(2), 223. DOI: https://doi.org/10.2307/2600650.

21 Ibid.

22 International Criminal Court, Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, para. 85. (“Prlić Case”) 24 International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, para. 84.

23 International Criminal Tribunal for the former Yugoslavia, The Prosecutor v. Mucic et al. (“Čelebići”), Case No. IT-96-21-T, para. 208.

24 International Committee of the Red Cross. (2002). “(Lesson 10) The Law of Armed Conflict: Non-international armed conflict”, p. 3. (Retrieved from: https://www.icrc.org/en/doc/assets/files/other/law10_final.pdf )

ǀ ALSA LC UNUD LEGAL REVIEW

force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Given these principles, it is clear that the idea of intervention particularly involving the use of force contradicts the fundamental respect towards the States sovereignty, and thus no members shall orientate to do so, not even the UN itself. 25 The principle of non-intervention is also declared in the UN General Assembly Resolution of 24 October 1970.26 In attribution to that, it is explicitly ruled in Nicaragua Case27 that the principle of non-intervention forbids al1 States to directly or indirectly intervene in the internal or external affairs of other States; particularly in which such intervention is achieved through the use of force, either directly (through military action) or indirectly (through support for subversive or terrorist armed activities).

It is also emphasized that no such “general right of intervention, in support of an opposition within another State” exists in international law. 30 The explicit provision of non-intervention in humanitarian law is set forth in Article 3 of Protocol Additional II to The Geneva Conventions of 12 August 1949, of which, however, Syria is not a State party.31 On the other hand, there is also an intervention that is by the nature called “humanitarian”, although the doctrine of

“humanitarian

intervention”

itself

remains

a

controversial subject until today.28 As no generally accepted definition exists on such intervention, one possible definition runs as follows: “the theory of intervention on the ground of humanity (...) recognizes the right of one State to exercise international control over the acts of another in regard to its internal 25 UN Charter, Article 2(7).

26 UN General Assembly, Resolution A/RES/2625 (XXV) of 24 October 1970 on “The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States”.

27 International Court of Justice Reports, 1986, pp. 14, 108. (“Nicaragua Case”) 30 Nicaragua Case, 109. 31 International Committee of the Red Cross, “Treaties, States Parties and Commentaries: Syrian Arab Republic”, URL: https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SY (Accessed November 22nd, 2020).

28 Ryniker, A. (2001). The ICRC’s position on “humanitarian intervention”. International Review of the Red Cross, 83(842), 527. DOI: 10.1017/S1560775500105826. 33 Ibid, p. 528.

ǀ ALSA LC UNUD LEGAL REVIEW

sovereignty when contrary to the laws of humanity”.33 In short, it aims to prevent or stop a gross violation of human rights in a State, where it is either incapable or unwilling to protect its own people or is actively persecuting them. 29 However, as it is said from the viewpoint of humanitarian law, “humanitarian intervention” which subsequently refers to armed intervention often carried out with a political agenda contradicts the essence of the term “humanitarian” which describes action intended to alleviate the suffering of the victims.30 Moreover, there remains no place for “humanitarian intervention” in the system established by the UN, and legal doctrine rejects the legitimacy of “humanitarian intervention” in both very general and restricted sense.31 In this case, the intervention both supporting the Assad government and the anti-Assad TFSA has clearly been involving the use of force as Turkey have launched several operations since 2016, not to mention the US who led an international coalition using such force since 2014 and Israel who carried out air raids inside Syria. Given these circumstances, no grounds can be raised to justify such interventions; even if the “humanitarian” ground may seem to meet the internal situations in Syria, it is based on the facts provided that other States were mainly attacking their opponents without aiming to provide humanitarian assistance. It can also be underlined that such interventions were most likely based on the existing “sectarian divisions” between Sunni Muslims and the Alawi sect, which may suffice to prove that they were not based on a neutral aim to strive for peace.

III. The Legality of the Attacks against ISIL and the Attacks Carried out by Israel Having established the analysis for the second issue, this last issue shall not raise a harder question but may allow another perspective to be opened. As the idea of the interventions in Syria’s war is unjustified by law, it is to be based on further facts of whether the operations and bombings against ISIL may in any view become legitimate. One of the possible perspectives is that, embracing the fact that the interventions subsequently existed (although the States were obliged not to), their interference may determine the legitimate parties to the ongoing 29 Kirthi Jayakumar, 2012, “Humanitarian Intervention: A Legal Analysis”, URL: https://www.eir.info/2012/02/06/humanitarian-intervention-a-legal-analysis/#_ftn13 (Accessed November 24th, 2020).

30 Op.cit., p. 529.

31 Yves Sandoz, 1992, “"Droit" or "devoir d'ingérence" and the right to assistance: the issues involved”, URL: https://www.icrc.org/en/doc/resources/documents/article/other/57jmaq.htm (Accessed November 24th, 2020). 37 International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, para. 38.

ǀ ALSA LC UNUD LEGAL REVIEW

conflict.

Referring back to the IHL cases, State’s intervention is the ground which establishes the escalation of an armed conflict. In assessing such intervention taking form in the indirect participation, it is necessary to pay attention to the “overall control” test being set in Lubanga Case,37 that such State must have a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. These thresholds, along with further facts, can be used to assess the interference of the States who indirectly support the parties in Syria’s war.

However, given the facts where Turkey and the US (along with its coalition) launched operations against ISIL, as well as Israel who carried out air raids inside Syria; it can be acknowledged that they were directly participating to the conflict.

Thus, through such direct participations in Syria’s internal conflict, it is sufficient to say that the conflict had indeed escalated to the international one.

This finding is pursuant to Common Article 2 to the Geneva Conventions which defined the international armed conflict as the one arising between two or more

States, even if the state of war is not recognized by one of them. Moreover in Prlić Case,32 a conflict which pits two or more States against one another indisputably possess an international character. By possessing such character, there is a possibility that the attacks against ISIL and those carried out by Israel became legitimate as the conflicting parties have also became legitimate, and so long as their use of force is consistent with the existing IHL provisions.

V. CONCLUSION

32 Prlić Case, para. 85.

Ç€ ALSA LC UNUD LEGAL REVIEW

Having elaborated the aforementioned analysis, three points can be concluded in this writing: 1. The response of the Assad government against the peaceful protesters is unjustifiable by all means, and no immunity shall relieve Assad from his responsibility on the commission of such inhuman acts under his authority.

2. Notwithstanding its frequent practices, no grounds may justify the idea of intervention, not even if the “humanitarian� ground. Given also the limited facts regarding the present case, it can be concluded that the interventions in Syria were not based on a neutral aim to provide humanitarian assistance.

3. As the idea of intervention is unjustifiable, the attacks against ISIL and the attacks carried out by Israel may only become justifiable if the involving States are proven to be the legitimate parties to the conflict, and if such attacks were carried out in the manner consistent with IHL provisions.

ǀ ALSA LC UNUD LEGAL REVIEW

REFERENCES Publication Anne Ryniker. (2001). The ICRC’s position on “humanitarian intervention”.

International Review of the Red Cross, 83(842), 527-532.

Herbert K. Tillema & John R. Van Wingen. (1982). Law and Power in Military Intervention: Major States after World War II. International Studies Quarterly, 26(2), 220-250.

International Committee of the Red Cross. (2002). (Lesson 10) The Law of Armed Conflict: Non-international armed conflict.

World Wide Web Amnesty International. “WHAT WE DO: Universal Declaration of Human Rights”, URL: https://www.amnesty.org/en/what-we-do/universal-declaration-ofhumanrights/#:~:text=The%20UDHR%20is%2C%20as %20its,constitutions%20and%20do

mestic%20legal%20frameworks

(Accessed November 20th, 2020).

United Nations. “Growth in United Nations membership, 1945-present”, URL: https://www.un.org/en/sections/member-states/growth-united-nationsmembership1945-present/index.html (Accessed November 23rd, 2020).

Kirthi Jayakumar. (2012). “Humanitarian Intervention: A Legal Analysis”, URL: https://www.e-ir.info/2012/02/06/humanitarian-intervention-a-legalanalysis/#_ftn13 (Accessed November 24th, 2020).

Yves Sandoz. (1992). “"Droit" or "devoir d'ingérence" and the right to assistance: the issues involved”,

URL:

https://www.icrc.org/en/doc/resources/documents/article/other/57jmaq.htm (Accessed November 24th, 2020).

International Committee of the Red Cross. “Treaties, States Parties and Commentaries: Syrian Arab

Republic”,

URL:

https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp? xp_countrySel ected=SY (Accessed November 22nd, 2020).

ǀ ALSA LC UNUD LEGAL REVIEW

Case Law International Criminal Court, Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T. International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/0401/06.

International Court of Justice, Nicaragua v. United States of America, Merits, Judgment. 1986, p. 14.

International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić, Case No. IT-94-1-A. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mucic et al. (“Čelebići”), Case No. IT-96-21-T.