Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia:

1. … the right to move into the Syrian Arab Republic and move out from the Syrian Arab Republic any equipment, ammunition, shells and other materials required for the aviation group, without any fees or duties…

3. Personnel of the Russian aviation group shall be able to freely cross the border, upon presenting travel documents valid for exit from Russia, and shall not be subject for customs or border control.

While the first paragraph of Article 5 may be read narrowly to just be about the lack of “fees and duties” on the movement of equipment and ammunition, another reading may be that, in light of paragraph 3, that Russian personnel and equipment for the aviation group can enter and leave Syria as long as they have valid Russian documents. Compare this with Article 9 of the 2008 Iraqi SOFA, which, although it also allows for significant US flexibility, envisions the use of coordinating committees and procedures and contains more detail. Once again, given the fact that the US had already been in Iraq for five years and, by contrast, the Assad regime may have been desperate for military assistance, the contrast is not surprising, but it does show once again how the differing strategic needs lead to agreements that have different characteristics.

One of the key issues in SOFAs are issues of jurisdiction and immunity. Article 6 of the Russia-Syria agreement states:

1. The Russian servicemen shall respect the laws, customs and traditions of the country of sojourn, of which they will be informed upon their arrival in Syria.

2. The Russian military contingent shall be immune from Syria’s civilian and administrative jurisdiction.

3. Movables and immovables of the Russian aviation group shall be inviolable. Representatives of the Syrian Arab Republic shall not have the right to enter the place of deployment without prior agreement with the commander.

4. The servicemen and their families enjoy all the privileges under the 1961 Vienna Convention on Diplomatic Relations.

5. Any property belonging to the Russian aviation group has been declared immune and inviolable.

Syria has also pledged to exempt the Russian air group from any direct and indirect taxes.

This should be read in conjunction with Article 7 concerning potential claims related to Russian activities:

1. The Syrian Arab Republic shall not lodge claims to the Russian Federation, the Russian aviation group and its personnel, and shall not file any suits related to the activity of the Russian aviation group and its personnel.

2. The Syrian Arab Republic assumes responsibility for settling all claims that could be put forward by third parties as a result of damage caused by the activities of the Russian air group and its personnel.

Taken together, these paragraphs emphasizes the immunities of Russia’s forces in Syria and Syria’s indemnification of  Russia for “all claims” that may arise from Russia’s intervention.

By comparison and contrast, Article 12 of the 2008 Iraqi SOFA, which covered jurisdictional issues, ran two single-spaced pages. And Article 21 of the Iraqi SOFA, covering claims, did not have a blanket indemnification but rather stated:

1. With the exception of claims arising from contracts, each Party shall waive the right to claim compensation against the other Party for any damage, loss, or destruction of property, or compensation for injuries or deaths that could happen to members of the force or civilian component of either Party arising out of the performance of their official duties in Iraq.

2. United States Forces authorities shall pay just and reasonable compensation in settlement of meritorious third party claims arising out of acts, omissions, or negligence of members of the United States Forces and of the civilian component done in the performance of their official duties and incident to the non-combat activities of the United States Forces. United States Forces authorities may also settle meritorious claims not arising from the performance of official duties. All claims in this paragraph shall be settled expeditiously in accordance with the laws and regulations of the United States. In settling claims, United States Forces authorities shall take into account any report of investigation or opinion regarding liability or amount of damages issued by Iraqi authorities.

3. Upon the request of either Party, the Parties shall consult immediately through the Joint Committee or, if necessary, the Joint Ministerial Committee, where issues referred to in paragraphs 1 and 2 above require review.

In short, the situation in Iraq led to a US/Iraqi document was more complex and envisioned a variety of different scenarios. The Russian agreement with Syria is terse and gives Russia maximum leeway. As always, the political reality frames the bargain and each party will drive for the best bargain that it can get under the circumstances. If anything, these  terms speak to the relatively weak bargaining power of the Syrian regime.

http://opiniojuris.org/2016/01/18/32350/

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