Russia’s Intervention in Syria

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Previous posts on Syria (see for example here and here) have commented on the air strikes by the US-led coalition, but the Russian air strikes on Syrian territory (as reported here and here) have been largely left undiscussed. This post will analyse the legality of Russia’s actions. Russia has been acting upon the request of President Assad (see here and here), which means that the international legal basis for Russia’s use of force is intervention by invitation. First, the concept of intervention by invitation itself needs to be addressed. Second, it is contested whether an intervention is even allowed during a civil war.

Intervention by Invitation

There is no explicit reference to intervention by invitation in the UN Charter nor is it covered by article 2(4). Pursuant to that article, states shall refrain from using force “in their international relations”. Using force upon an invitation, however, is not using force in international relations as no force is used by one state against another, but the two states are working together, using the force on one side. This falls outside the scope of article 2(4). Therefore no prohibition comes into play and this type of force is allowed. The importance of valid consent (the invitation) was addressed by the ICJ in the case DRC v. Uganda. The Court dealt with the situation after the consent had been withdrawn by the DRC, thereby emphasising the importance of valid consent, yet also indirectly making clear that before the withdrawal no violation of international law occurred. Thus, intervention by invitation falls outside the scope of article 2(4), as long as the consent is valid.

Intervention in a Civil War?

The second issue, which is a contemporary topic of international law as evidenced here, questions the legality of an intervention by invitation in a civil war. As Gregory H. Fox has indicated “‘civil war’ is not a critical term of art in international instruments” and it is therefore subject to different interpretations. The one followed here is from the 1975 Resolution and 2011 Resolution of the Institut de Droit International, which follow the definitions of non-international armed conflicts provided for in Common Article 3 and Additional Protocol II to the Geneva Conventions respectively. The threshold of a civil war is not met when “situations of internal disturbances and tensions, such as riots […], as not being armed conflicts” are involved. As the situation in Syria clearly goes beyond mere disturbances, it is hereby classified as a civil war.

Concluding that it is a civil war entails that there are two or more parties fighting for power. It could therefore be questioned who is entitled to issue an invitation for an intervention in Syria. It is argued here that Assad is still the correct issuing authority. First, in these situations there is a presumption of legitimacy towards the government as opposed to the opposition (see paragraph 246 of the Nicaragua judgement and e.g. De Wet). Second, while some states have ‘recognised’ the main opposition group, the Syrian National Coalition, they have only done so as “the legitimate representative of the people” (see also here and see here for a discussion on ‘recognition’ of the NTC in Libya). This ‘recognition’ was merely meant as political support for the Syrian people, not as legal recognition of a particular legitimate authority.

The subsequent issue to address is whether there is a rule that prohibits an intervention in a civil war. Two previous posts, one by Dapo Akande and Zachary Vermeer and the other by Raphael Van Steenberghe have already addressed the possible existence of such a rule. Both posts refer to governmental statements that justify the recent air strikes in Iraq against IS as evidence of state practice and opinio juris, but they reach opposite conclusions. It seems that an analysis of these two elements of customary international law is inconclusive. The reasoning of the ICJ might be of assistance.

The view that there is no prohibition to intervene during a civil war (as concluded by Akande and Vermeer) seems to be supported by the Court. In paragraphs 206 and 246 of Nicaragua, whilst not expressly referring to civil war, an intervention upon request of the opposition is said to be prohibited, while it is allowed on the side of the government. In paragraph 165 of DRC v. Uganda, the Court states that an interference in a civil war had occurred. However, in paragraphs 42-54 where the Court discusses consent, it rules that Uganda overstepped the boundaries of the consent given and that the consent was withdrawn at a certain point in time. The Court therefore seems to accept an intervention in a civil war when the consent is still valid. Combining the reasoning in these cases, it is concluded here that there is no such rule that prohibits an intervention during a civil war as long as the invitation comes from the government. Nevertheless, it must be noted that these cases were decided several years ago and the exception of fighting terrorism (as argued by Van Steenberghe and also here) could be a recent development. For this to be an exception to a rule, however, there must first exist a rule, which the Court does not seem to accept. In conclusion, there is no rule that prohibits an intervention by invitation in a civil war if the invitation comes from the government.

This conclusion is supported by the responses of other states to recent interventions by invitation. Fox (see above) has concluded that with the French intervention in Mali, no state argued that it was illegal, not for reason of there being a civil war nor for other reasons. Responses to the Russian intervention in Syria were numerous. A joint statement by several governments and a statement by NATO expressed deep concern about the intervention. Their concern, however, was directed to the fact that Russia was not exclusively attacking IS, but also the Syrian opposition. President Obama described the actions as leading to a quagmire. Yet no state disputed intervention by invitation as a valid legal basis for the intervention in this particular situation.

Conclusion

Russia’s intervention in Syria is in accordance with the concept of intervention by invitation and President Assad is still the legitimate authority to issue such an invitation on behalf of Syria. State practice and opinio juris are inconclusive and scholars are divided on whether there is a rule that prohibits an intervention in a civil war. On the basis of the reasoning of the Court and the responses of states to the recent interventions in Mali by France and in Syria by Russia, it is argued here that there is no such rule that prohibits an intervention in a civil war if the invitation comes from the government. It is thus submitted that the Russian intervention in Syria is in accordance with international law.

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    Kevin Jon Heller says

    November 25, 2015

    Excellent post, but I'm surprised you didn't even mention Saudi Arabia's ongoing intervention in Yemen. Assuming the Saudis are intervening on behalf of the Yemeni government -- which has not always been clear, given that the Houthis have had more effective control of the government than the Hadi regime at certain points -- the Yemen situation would seem to provide important additional support for the right to intervene in a civil war, especially given that the US (and other states) are actively assisting Saudi Arabia.

    Abdullah T. says

    November 25, 2015

    It is to be noted that though international law permits states to invite military intervention onto its territory, whether the inviter government is legitimate or not has lately gained importance. There has been an increasing willingness of States to accept the legitimacy of the government as a condition of intervention by invitation. For instance, the Canadian government referred to the argument of the “request from the democratically elected government of Iraq” in order to justify its airstrikes targeting ISIS in Iraq.

    Featured factors concerning the legitimacy of the government are democratic elections; protection of human rights; and responsibility to protect the population from atrocities. Bashar al-Assad’s government does not protect Syrians, it is in fact a perpetrator of untold atrocity crimes and war crimes against its own population. Despite the fact that Bashar al-Assad invited the United States to use force against ISIS, President Obama rejected this request. The illegitimacy of Syrian government explains Obama’s rejection in legal terms.

    I claim that Russian intervention in Syria is open to discussion regarding the legal aspects. Instead, UN should have got in the act in the Syrian crisis. The main obstacle for the UN Security Council’s failure to decide the authorization of the use of force pursuant to VII Chapter concerning the Syrian crisis was the Russian veto. Even though Russia has changed its attitude, the UN Security Council has not taken any action in the Syrian crisis. Primary way of the intervention in Syria should be the UN Security Council’s decision.

    Francesca G. says

    November 25, 2015

    Great post, although I do agree with Abdullah T. on the need for a greater specification on why Assad was actually empowered to issue an invitation. I feel the issue is of tremendous importance, and that a more in depth analysis would be beneficial.
    You do mention the fact that there is a presumption of legitimacy towards the government in international law (i.e. that a third party should only intervene in internal struggles on behalf of the central government) but then again "which government is the government" could be open to a greater discussion in my view. Are we talking about the democratically elected President? Are we talking about the government in effective control? Can Assad fit into either or both of these categories?
    I'd say these specific aspect is crucial given also Russia's recent orientation with respect to interventions by invitation (see e.g. Crimea).

    Brad Roth says

    November 25, 2015

    Although I agree with the bottom lime that state practice fails to evidence a norm precluding intervention in civil wars on the side of the recognized government, the conceptual story is more complicated.

    The Assad regime’s claim to confer consent on behalf of Syrian sovereignty is predicated on the traditional test of “effective control through internal processes,” combined with a traditional “rule against premature recognition” that allows the government’s standing to persist, notwithstanding civil conflict, until it has been definitively defeated. Although the non-intervention doctrine ascribes to each state – the principal (the political community), not the agent (the government) - the “inalienable right” to choose its political system, this “choice” traditionally ends up reducing (absent agreed-on criteria of popular sovereignty, let alone agreed-on facts) to widespread acquiescence in whatever effective order is not the product of inadmissible foreign impositions.

    This logic suggests, as the Institut de Droit International affirmed in 1975, that where the government no longer maintains widespread popular acquiescence – i.e., faces an opposition sufficiently efficacious as to engage in a full-fledged civil war, rather than a mere rebellion or insurgency – the government loses the standing to consent unilaterally to intervention. For foreign forces to maintain a regime in power against an efficacious insurrection contradicts the justifications for acknowledging the regime’s standing to exercise the state’s sovereign rights. (This is not so of evidently popular governments – especially those owing their power to decisive victories in internationally observed elections – which have an additional basis to maintain their standing.)

    However, this norm is less and less in evidence in state practice. One reason is that sufficiently efficacious armed opposition to externally-supported regimes can almost always plausibly be attributed to the former having obtained inadmissible foreign support, allowing further support for the government to be justified as “counter-intervention.” This tendency has become so routine that the norm against aid to governments in civil wars, even if it once could be said to have taken hold in practice, gives the impression of desuetude. The Russians in Syria and the Saudis in Yemen do assert this, though they do not seem to have bothered to place the point front and center, and the international community has not insisted on interrogating those assertions, seemingly implying that the norm against aid to governments in civil wars is no longer taken seriously. This marks a lamentable deterioration of use-of-force norms.

    Jordan says

    November 25, 2015

    and it is not a "civil war," or as Brad implies, it is not an "insurgency," especially regarding common Article 3 of the 1949 Geneva Conventions -- because common Article 3 applies to an insurgency taking place entirely within one country and the war against ISIS is taking place in Syria, Iraq, and elsewhere.

    Jordan says

    November 25, 2015

    p.s. I assume that once in a while the Russians are targeting ISIS, not just other Syrian opposition groups. The armed conflict that exists against ISIS is one of an international character (see also NIAC Nonsense, the Afghan War, and Combatant Immunity, at http://ssrn.com/abstract=2689642 -- comment welcome).

    Luca Ferro says

    November 26, 2015

    The ICJ does not accept (or deny) an intervention in a civil war with valid government consent in the Armed Activities case. The phrase ‘interference … in a civil war’ (para. 165) refers to Ugandan support for armed groups which sought to overthrow the Congolese government (paras 148-65), whereas the government’s consent for Ugandan use of force on its territory was restricted to (assist in) acting against anti-Ugandan rebels on the eastern border (paras 48-54). The intervention by invitation framework therefore does not seem to apply.

    The prohibition on intervention in a civil war is supported, inter alia, by the right to self-determination, with ‘counter-intervention’ as its best established exception (the fight against terrorism potentially constituting an additional one). However, to preserve a people’s right to freely determine their own political status, without outside interference, even counter-interventions should exclusively aim at undoing prior outside assistance. Such a proportionality requirement is common in all forms of self-help, including the right to self-defence and countermeasures.

    From that perspective, the Saudi-led military intervention does not provide additional support for the right to intervene in a civil war, but rather exposes it as a violation of the jus contra bellum, considering that its scope (air strikes, air and naval blockade, boots-on-the-ground) dwarfs any (alleged) prior Iranian support to the Houthi rebels (i.e., was manifestly disproportionate). This framework should equally guide the analysis pertaining to the legality of Russian air strikes in Syria.

    On most of these issues, in particular on the Saudi-led intervention in Yemen, see a soon to be published article by Prof. dr. Tom Ruys and me, accessible through SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2685567.

    Brad Roth says

    November 26, 2015

    Luca, I agree with everything you say here, and in your superb forthcoming article, which I recommend to all. However, as the article points out (pp. 8-9):

    “Having regard to the fierce debates that similar interventions have given rise to in the past, the utter lack of in-depth debate and legal analysis regarding Operation Decisive Storm is flabbergasting. Besides the cited handful of unequivocal statements by state officials and a few (brief) legal opinions circulating the blogosphere, the silence on the legality of the operation is indeed deafening.”

    In this and in other recent cases, “the dog has not barked.” That bodes ill for the future of the norm.

    Raphael van Steenberghe says

    November 26, 2015

    Dear Laura, thanks for this post and sorry for my long response.

    I am not sure that all the issues that you address and the interpretations that you make are as clear as you suggest. In my view, things are much more complicated.

    1 – I share the comments made above, according to which it is doubtful that the Assad regime was indeed the valid authority which could request an intervention on the Syrian territory. This is at least highly debatable given that its legitimacy as the authority representing the Syrian people is contested – precisely because the Syrian National Coalition (SNC) is considered by several States as the legitimate representative of the Syrian people.

    2 – I share your view that state practice may be considered as not being fully conclusive with respect to the existence of a prohibition on interventions in a civil war. I agree that one must be cautious in that respect. Yet, the absence of such prohibition could not be founded only upon the ICJ case law that you mention. Such case law is not entirely conclusive either. It may also be subject to different interpretations. In the Nicaragua case, the relevant ICJ statement is part of an obiter dictum. As supported by scholars who have written several papers on this topic (Christakis and Bannelier), by stating that “intervention .. is … allowable at the request of the government of a State”, the Court did not say that “it was necessarily always allowable”, the Court having only expressed a general principle. Regarding the DRC v. Uganda case, I refer to Luca’s comment. Therefore, my conclusion would be less emphatic than yours: the prohibition on interventions in a civil war at least remains controversial. It is a step too far to conclude, especially in light of the ICJ case law and recent practice (see infra 3) that you mention, that there is no such prohibition.

    3 – Indeed, regarding the Russian intervention in Syria (“Syrian case”), I think that you should have distinguished between the Russian intervention against those who are unanimously considered as terrorists, including mainly ISIS (“terrorist groups”), and the Russian intervention against the others, who claim to represent the Syrian population and fight for the self-determination of that population, including mainly the SNC’s forces (“insurgent groups”).

    In that respect, the Syrian case has some similarities with the case of Mali, to the extent that, in both these cases, the foreign States (Russia and France, respectively) intervened at the request of the authorities of another State (Syria and Mali, respectively) while these authorities were fighting against both “terrorist groups” and “insurgent groups”. Declarations made in both these cases seem to confirm the position adopted by a significant part of legal scholarship on the subject, that the legality of an intervention by invitation is dependent on the purpose of that intervention.

    In particular, interventions by invitation whose purpose is only to fight against “terrorist groups” (as defined above – i.e. unanimously considered as such) are not contested. This is clearly apparent in the Syrian case and the case of Mali (as well as the case of Iraq – see my post). There was no criticism of the Russian intervention against ISIS and the French intervention against the terrorist groups in the north of Mali. However, interventions by invitation whose purpose is to fight against “insurgent groups” (as defined above) – which, in my view, may amount to interventions in a civil war (see infra 4) – are much more controversial. This is apparent in the Syrian case: first, as you mention, although the Russian intervention directed against ISIS has not been criticized, its intervention against those considered by several States not as terrorists but as fighting for the self-determination of the Syrian people has been highly criticized; second, in its official justification given to the UNSC (UN Doc. S/2015/792), Russia takes care to emphasize that the purpose of its intervention in Syria is to combat those that it considers (as the Assad regime does) as terrorists. The case of Mali is also illustrative of the crucial role played by the purpose of the intervention by invitation with respect to its legality. The French authorities were cautious to emphasize that their intervention was only directed against those (unanimously considered as) terrorists and not against the Azawad National Liberation Movement (MNLA), precisely because of the well-established French policy of non-intervention in civil wars. The French Minister for Foreign Affairs indeed expressly stated in January 2013: “[J]’ai dit que l’action devait être menée contre les groupes terroristes, et pas du tout contre le Nord ! Il y a, depuis longtemps, un problème qui, malheureusement, n’a pas été réglé, entre le Nord du Mali et puis la capitale. Il faut prendre en considération – et c’est aux Maliens de le faire – les réalités du Nord. C’est ce à quoi invitent d’ailleurs les Nations unies dans les résolutions [2071 (2012) et 2085 (2012) du Conseil de sécurité]. Et bien sûr, il faut faire cela [mais] sans confondre le Nord et les groupes terroristes”.

    4 - Regarding the fight against terrorism as an exception to a potential prohibition on interventions in a civil war, there are two possible views, depending on your interpretation of the notion of “civil war”.

    a) In my view, the notion of civil war in the sense of the Institut de droit international (IDI) and with respect to which several scholars consider that there is a prohibition on interventions is a war opposing the official authorities of a State and armed groups fighting for their right to self-determination. This is precisely because (as it clearly stems from the preparatory works of the 1975 IDI resolution and legal literature) such prohibition would violate this right to self-determination. As a result, one should not consider that there is any intervention in a civil war if that war is opposing the government of a State and people who are unanimously considered as terrorists (i.e. people who are not fighting for their right to self-determination). The legality of such intervention should not be considered as resulting from an exception to any prohibition on interventions in a civil war since there is no intervention in a civil war.

    b) In another view, since, as mentioned by H. Fox, the notion of civil war “is not a critical term of art in international instruments”, you may consider that there is a civil war whenever there is a non-international armed conflict. In that case, assuming the existence of a prohibition on interventions in a civil war, the legality of an intervention by invitation directed against “terrorist groups” should be considered as an exception to this prohibition.

    In any case, the question of the valid authority for requesting an intervention will normally not arise when the aim of the intervention is to fight against “terrorist groups”, since, as evidenced in the case of Mali, both the official authorities (the Malian government) and the “insurgent groups” (MNLA) will agree on such intervention.

    5 – Regarding the Saudi-led intervention in Yemen, I share the opinion voiced in Luca's comment, that it does not provide additional support for asserting the absence of any prohibition on interventions in a civil war. The purpose of that intervention was to respond to a prior outside interference (UN Doc S/2015/217). It may be considered as amounting to a counter-intervention. The legality of such intervention (as an exception to the prohibition on interventions in a civil war) is well established.

    olivier corten says

    November 26, 2015

    Thanks for your post, Laura. I agree with your conclusion, but I think the main argument to justify the Russian intervention is probably the following: the rebels (ISIS but also other irregular groups) have previously been militarily supported by foreign State (Saudi Arabia, Turkey among others, in the former case; United States, UK, France, among others, in the latter). Against this background, the Russian operation may be considered as amounting to a counter-intervention. And, as Raphaël rightly pointed out, the legality of such intervention (as an exception to the prohibition on interventions in a civil war) is well established.

    Raphael van Steenberghe says

    November 26, 2015

    Just to note that, in its official letter sent to the UNSC (S/2015/792), Russia does not make reference to any prior interference to justify its intervention – although it is true that Syria repeatedly criticizes that foreign States support all those that it considers as terrorists. This contrasts for example with the official letter sent to the UNSC to justify the Saudi-led intervention (S/2015/217).

    olivier corten says

    November 26, 2015

    Ok, but I'm not sure that it has any repercussion on the legality of the intervention. Anyway, the legal basis remains the government's consent, and that appears expressly in the Russian letter…

    Raphael van Steenberghe says

    November 26, 2015

    Maybe not. But it may be interesting for the identification of the "opinio juris" of the concerned State (Russia).

    Laura Visser says

    November 27, 2015

    Dear all,

    I sincerely thank you for your comments, they have been most insightful.
    Most of you commented on the lack of a discussion on the legitimate authority of President Assad to issue an invitation. I left this out of this post, because I feel that at this point in time only Assad and no other authority could be seen as the legitimate authority to issue an invitation on behalf of Syria. Quoting paragraph 246 of the Nicaragua judgement “it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition”. But indeed, who is to be considered as the government? In the situations of Haiti and Sierra Leone the presidents were ousted in a coup and they lost the effective control over the state territory, yet both were still seen as the government. This can be juxtaposed with the situation of Libya where Qaddafi’s forces had lost the effective control over a large part of the territory to the National Transitional Council, which was swiftly recognised by several states as the new legitimate government. So there is no clear cut answer to the question what determines the title to legitimate authority. Recognition seems to play a major role, although this is of course a very complex concept within international law.

    Upon applying this to Syria, I reach the conclusion that Assad is still the legitimate government. First, he is still seen as the President of Syria. Even though some states ‘recognised’ the Syrian National Coalition at the end of 2012, this was merely meant as political support for the Syrian people, not as legal recognition of a particular legitimate authority. It has no influence on the representation of the regime in relation to those states (for this analysis I again refer to Stefan Talmon’s article, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2227615). Secondly, Assad is still exercising effective control over large parts of Syria, most notably the capital, as this map shows (http://www.understandingwar.org/sites/default/files/Russian%20Airstrikes%206-17%20NOV.pdf). Moreover, none of the other opposition groups including IS can be considered as a challenging authority as they are not exercising sufficient effective control over Syria.

    Concerning the lack of reference to the concept of counter-intervention (which has already been addressed in many of the comments), this was beyond the scope of this blog and I agree with Raphael that it might not be relevant here, since Russia did not refer to this concept in its official statements. Therefore, a reference to the situation in Yemen is not necessarily relevant here either.

    Raphael van Steenberghe says

    November 27, 2015

    I should have added some specific comments on the legality of the Russian intervention in Syria – my previous (long) comment was more about the opinio juris/legal position of the concerned States deriving from their declarations and the lessons which could be drawn from such declarations with respect to the prohibition on interventions in a civil war.

    I think that one should also distinguish in that respect between two aspects of the Russian intervention, i.e intervention against those unanimously considered as terrorists (mainly ISIS) and intervention against those not considered as such (mainly the SNC’s forces).

    As far as the first aspect of the Russian intervention is concerned, in my view, there is no “intervention in a civil war” in accordance with the Institut de droit international (IDI) and scholars who consider that there is a prohibition on interventions in a civil war. The very purpose of that intervention is indeed not to “settle an exclusively internal political strife in favor of the established government” (see the post of Christakis and Bannelier) but to fight against persons universally considered as terrorists. Therefore, there is no need to resort to any exception to the prohibition on interventions in a civil war, including the exception of “counter-intervention”, to justify that aspect of the Russian intervention. One can then dispense with discussing the problematic issues related to “counter-intervention”, such as the substantial nature of the foreign support given to those terrorists, the existence of such support at the time of the Russian intervention and the proportionality of the “counter-intervention”. The Russian intervention would be indisputably legal if it was only directed against those unanimously qualified as terrorists.

    As far as the second aspect of the Russian intervention is concerned, this seems to amount to an intervention in a civil war and, if one assumes that a prohibition on interventions in such a war exists, an exception to this prohibition is needed for the Russian intervention to be justified under international law. Such exception may well be that of “counter-intervention”, since it is well-known that moderate rebel groups are/were supported by foreign States. However, this does not necessarily mean that the Russian intervention would be legal. According to Luca’s interesting argument regarding the needed proportionality of any “counter-intervention”, the legality of the Russian intervention remains disputable. This may be the reason why Western States criticized the fact that Russia conducted airstrikes even against armed groups that those States considered as insurgents (and not terrorists).

    Finally, coming back to the general issue of the existence of a prohibition on interventions in a civil war under international law, I agree with Luca that the existence of such prohibition is indirectly supported by the fact that counter-intervention is a well-established exception to it.

    Kevin Jon Heller says

    November 28, 2015

    Raphael,

    One question about your proposed distinction between intervention in a civil war and intervention against those "unanimously considered" to be terrorists: does that mean US and western intervention on behalf of Iraq against ISIS is prohibited, given that ISIS controls significant territory and intends to set up its own state -- ie, secede from Iraq? ISIS unquestionably uses terroristic methods, but their organization and aims much more closely resemble those of a traditional rebel group (one whose proposed state simply has a transnational element). So does it matter, in your view, that they are "unanimously considered" to be terrorists and not rebels fighting a civil war? If so, why do the subjective views of states trump the facts on the ground in terms of how the jus ad bellum applies?

    Raphael van Steenberghe says

    November 30, 2015

    Sorry for responding so late.

    I do not believe that one should distinguish between ISIS in Syria and ISIS in Iraq. ISIS is the same terrorist armed group with the same claims and ambitions regardless whether it is located in Syria or Iraq. In addition, I do not share the view that the ISIS claims and ambitions are similar to those of traditional armed groups, in particular those which want to secede from existing States, i.e. “secessionist entities”. Generally, such entities want to be recognized as a State by other States. They seek such recognition. This is not the case of ISIS. It is illustrative that the sole Ministry which does not exist within the ISIS main authorities/government is a Ministry for Foreign Affairs.

    In actual fact, the ISIS claim to be a State is very unusual. Although the terrorist group refers to the notion of State (“dawlah” in Arabic), the State that it wants to create is a State to which all others should pledge allegiance and on which they would be dependent. In other words, this would be the only State, as a State defines itself by being independent. Such an aim is absurd as an entity can only be independent vis-a-vis another entity having the same status. It cannot be independent alone. This proves that the notion of State to which ISIS refers bears little relation to the classical conception of State under international law, which implies the existence of an entity living on an equal footing with and among other entities of similar status.

    That having been said, what matters with respect to the issue of intervention by invitation is not the ISIS claim but the fact that ISIS is unanimously considered as a terrorist armed group regardless whether its fighters are located in Syria or Iraq. There is no objection among States against that qualification. Therefore, of course, the airstrikes conducted by Western States against ISIS in Iraq on behalf of that State are legal under jus ad bellum, in the same way as for the Russian military operations against ISIS in Syria. In addition, making the legality of the intervention by invitation dependent on the qualification of the targets as universal terrorists is not “subjective” to the extent that such qualification is not only made (for example) by the intervening State(s) and the State requesting the intervention but by all the States. Such qualification becomes “objective” since it is shared by all the States. Admittedly, such situations are not frequent but they exist (see Christakis and Bannelier for more state practice).

    Finally, beside the international criticism with respect to the Russian intervention, which only concerns the military operations against the moderate rebel groups and not ISIS, the case of Mali is very illustrative of the distinction that I make between intervention against those universally considered as terrorists and intervention against others. After the request of Mali, France did not carry out military operations against the Azawad National Liberation Movement (MNLA), although the Malian authorities were fighting against that armed group, and because France did not want to intervene in a civil war. The French authorities emphasized that they were only targeting the terrorist groups, as such intervention did not amount to an intervention in a civil war in their view. The French intervention was not criticized. It was even welcomed by the UNSC.

    Kevin Jon Heller says

    November 30, 2015

    I was obviously not clear about my meaning of "subjective." I used the term to highlight that your view privileges the label states attach to a group over the nature of the conflict between that group and a government. Insofar as "civil war" is a term of art, the existence of a such a conflict has always -- from the Prize Cases onward, from Oppenheim onward -- been determined "objectively," without recourse to how states choose to label the hostilities. Indeed, Visser's post notes that the Institut de Droit International's 2011 Resolution defines "civil war" by reference to AP II, whose application is determined solely by objective criteria. We would never say AP II doesn't apply because states disapprove of the organized armed group engaged in otherwise-qualifying hostilities.

    I see no basis to claim, therefore, that ISIS cannot be in a "civil war" with Iraq simply because it does not adopt the vocabulary of international law or the goals that international lawyers think are appropriate for a modern state. (Germany under the Nazis bore "little relation to the classical conception of State under international law, which implies the existence of an entity living on an equal footing with and among other entities of similar status," but there is no question that it was a state, at least prior to debellatio.) If the permissibility of outside intervention on behalf of a government depends on the non-existence of a civil war, whether such a conflict exists should be determined by the traditional definition of "civil war" and the nature of the hostilities, not by the subjective preferences of (even all) states.

    Jordan says

    November 30, 2015

    Of course one looks at the conflict de facto as well as the traditional criteria for "belligerent" and "insurgent" status whether or not, in this case, the insurgent ISIS is also a terrorist group (because it approves, has adopted use of terrorism as a tactic or strategy). ISIS has the semblance of a government, controls significant territory in at least two states as its own, fields military units in sustained and protracted hostilities, etc. -- but ISIS has no apparent outside recognition as a "belligerent" or a "state" or "nation" and, therefore, cannot have more than "insurgent" status. Yet, the armed conflict is of an international character for several reasons, including the direct participation in the fighting, bombing by a number of outside states and the circumstance that the armed conflict is not contained "within a singled state." Re: these last point and why the conflict with ISIS is not a NIAC, see, e.g., http://ssrn.com/abstract=2689642
    As noted by many above, the self or collective self-defense paradigm applies as well as the law of war paradigm.

    Raphael van Steenberghe says

    December 3, 2015

    Just some final reactions to Kevin’s comments:

    1 – The 2011 IDI Resolution does not define “civil war” as an armed conflict in the sense of APII. Actually, it does not contain any definition of the notion of “civil war”. It only deals with intervention by invitation in situations of internal disturbances and tensions below the threshold of non-international armed conflict in the sense of Art. 1 of APII.

    2 – It is also important to note that the 2011 IDI Resolution is different from the 1975 IDI Resolution to the extent that the former does not contain any general prohibition but rather some prohibitions on interventions, including interventions which are contrary to the right to self-determination or those whose object is to support an established government against its population. This is important for the interpretation of the 1975 IDI Resolution, which contains a general prohibition on interventions in civil wars (infra 3; 4 and 6).

    3 – I agree that an armed conflict under APII is/must be defined according to objective criteria. This is a fortunate general trend of contemporary jus in bello to move from subjective to objective criteria for its application. However, we are not talking here about jus in bello but the legality of interventions by invitation, which is part of jus ad bellum. And, the notion of “civil war”, as we both agree, is a term of art, which may be interpreted in different ways. It must not necessarily be interpreted in light of the jus in bello corresponding notion, as it is well known that similar concepts belonging to different branches of international law may have different meanings, like the notion of armed conflict under jus in bello and the same notion for the subsidiary protection of refugees in European Law. I believe that this notion of “civil war”, as used in the 1975 IDI Resolution, should be interpreted in light of the preparatory works of that resolution and the fact that it contains a general prohibition on interventions – contrary to the 2011 IDI Resolution.

    As already shown in my post of 12 February 2015, it is clearly apparent from those preparatory works (see e.g. [1973] IDI Yearbook 443-445; 452-454; 468 and 518; [1975] IDI Yearbook 125; 127; 129; 138 and 151) that the general prohibition on interventions in a civil war contained in the resolution mainly resulted from the assumption that such interventions would violate the right of peoples to self-determination. In that sense, the notion of “insurgent movements” whose fighting against the established government is considered as a civil war according to Article 1, 1), a) of the resolution actually refers to movements exercising their right to self-determination and being, therefore, supported by a significant part of the population. The view expressed by Mr Dietrich Schindler in his interim report presented at the 1973 IDI session in Rome, which seems to have prevailed over contrary views held by other IDI members, is particularly illustrative in that respect ([1973] IDI Yearbook 468): “l’assistance au gouvernement établi en cas de guerre civile ou d’autre conflit non interétatique est illicite […] lorsque les insurgés, sans avoir reçu une assistance étrangère substantielle, ont réussi à établir le contrôle sur une partie considérable du territoire et sont appuyés par une grande partie de la population” (emphasis added). I do not think that ISIS could be seen as exercising any right to self-determination on behalf of the Syrian and Iraqi population. At least, as ISIS is universally qualified as a terrorist group, it cannot claim to exercise any right to self-determination on behalf of a people. In other words, the fight between ISIS, on the one hand, and the Iraqi as well as Syrian governments, on the other hand, would not fall under the notion of civil war in the sense of the 1975 IDI Resolution. Any intervention by invitation whose purpose is to fight against ISIS would not be an intervention contrary to the right to self-determination, i.e. a prohibited intervention in a civil war.

    4 – The interpretation according to which, by prohibiting any intervention by invitation in a civil war, the 1975 IDI Resolution actually prohibits interventions whose purpose is to “settle an exclusively internal political strife in favor of the established government” is also in line with the 2011 IDI Resolution. The latter indeed expressly prohibits interventions by invitation which would be contrary to the right to self-determination or whose object is to support an established government against its population – without prohibiting all interventions by invitation in situations that it deals with (internal disturbances and tensions).

    5 – I also believe that recent practice (Russian intervention in Syria and French intervention in Mali) supports such a view and, therefore, supports the distinction which must be made between a) interventions by invitation against those unanimously considered as terrorists, which are not controversial as they are not interventions whose purpose is to “settle an exclusively internal political strife in favor of the established government”; and b) interventions by invitation whose purpose is indeed to “settle an exclusively internal political strife in favor of the established government”, which are controversial. Russia’s intervention against ISIS has not been contested, while its military operations against moderate rebel groups appear much more controversial in light of the clear disagreements expressed by several States with respect to those operations. The French intervention in Mali against the three terrorists groups in the northern part of that State was welcomed by the UNSC, while France itself refused to act against the MNLA because it considered that it would amount to an intervention in a civil war.

    6 – Of course, you may have another interpretation (which is not mine) of the notion of “civil war” as used in the 1975 IDI Resolution, as referring to any non-international armed conflict in the sense of jus in bello (although I think that, in that case, given the preparatory works of the IDI Resolution, that Resolution would have contained a prohibition on intervention in such a conflict when it would have been contrary to the right to self-determination – in the same manner as the 2011 IDI Resolution does). In any case, if one agrees on such interpretation, since state practice shows that interventions by invitation in civil wars are at least controversial, while clearly evidencing at the same time that specific interventions by invitation whose purpose is to fight against those universally considered as terrorists are not disputed, the undisputable legality of the latter specific interventions should therefore be seen as an exception to the (at least) controversially legal nature of interventions in civil wars.

    7 – Regarding the specific ISIS claim that I described in my answer to your question, I just wanted to show that such a claim was very different from the claims usually made by other armed groups which want to secede from an existing State. Those armed groups generally want the entity that they have created to be recognized as a State by the other States (see Abkhazia, South-Ossetia, …). I did not argue that such a claim mattered with respect to the legality of interventions by invitation against ISIS, as what matters in that respect is not the ISIS claim but the “objective fact” that it is universally considered as a terrorist group. Moreover, I only considered claims made by armed groups which want to secede from an existing State and therefore create a new State. I did not talk about claims made by existing, well-established, States (such as Germany in your example), which would impact upon the disappearance of those States. I did not even argue that the unusual ISIS claim would necessarily prevent it from being considered as a State. I just wanted to highlight the specific nature of that claim, by comparison with claims usually made by secessionist entities.

    8 – Finally, one should not forget that making the legality of interventions by invitation dependent on “the subjective preferences of [all] States” regarding the qualification of the targets of those interventions has no bearing on jus in bello (a pragmatic branch of international which is/should be based on objective facts rather than subjective considerations). Again, the issue at stake is part of jus ad bellum, and, under this branch of international law, there are interstate uses of force whose legality is dependent upon qualifications made by the international community rather than objective facts. One can just think about the qualification by the UNSC of a situation as a threat to international peace and security.

    This will close my participation to the debate on this post. Again, I thank Laura for that interesting post and I thank all for the debate!