Syria and New Scholarship in International Law

The many tragedies that have unfolded in Syria and particularly, the failure of the international community to intervene in a prompt manner, have led to a series of new analyses on the scope and application of certain doctrines in international law.

Take for example, the argument made by Laurie Blank and Geoffry Corn, in their forthcoming Vanderbilt Journal of Transnational Law Article “Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition” that the “elements” approach used in determining the existence of an armed conflict delayed the application of IHL in Syria by at least fifteen months, until the ICRC concluded a non-international armed conflict existed in July, 2012.

The upshot, according to the authors, was that the main goals of IHL were compromised because of an overly legalistic approach to determining the nature of the conflict.

Similarly, there was an interesting post on the IPI’s Global Observatory by Jérémie Labbé and Tilman Rodenhauser  that cross-border humanitarian assistance in rebel controlled areas should be permissible regardless of Syria’s consent, because Syria does not effectively control those areas.    Drawing on Article 3 and Additional Protocol II of the Geneva Conventions, which permits humanitarian agencies to offer their services in times of conflict, the authors argue that:

A progressive interpretation of international humanitarian law does not consider state consent as a strict legal requirement for the delivery of humanitarian relief into territories that are not under state control. Therefore, states willing to support organizations that engage in cross-border humanitarian relief into opposition-held territory in Syria could make a sound—if arguably quite progressive—legal argument in support of their position.

Information on the humanitarian response to the conflict is available here.

Stephan Talmon’s new article in the Chinese Journal of International Law broaches the important issue of recognition of opposition forces in Syria.  He writes:

State practice in the cases of Libya and Syria shows that for an opposition group to be recognized as the legitimate representative of a people constituting a State, four criteria must be fulfilled. The incumbent government of the State must have lost legitimacy and the opposition group must be representative, broad, and enjoy a reasonable prospect of permanence.

In international law, the representative of a people constituting a sovereign and independent State is, as a rule, the government of that State. A government need not be representative or democratically elected. International law accommodates despots, dictators and democrats alike. But, a government that turns against its own people, that uses heavy weapons, fighter aircraft and tanks to fire on its people, may lose its legitimacy. While international law does not yet provide any clear rules for the assessment of governmental legitimacy, the Libyan and Syrian situations show an emerging consensus that governments which use excessive force against their own population to secure their position lose their legitimacy and must or should go. 

This analysis raises the issue of control over territory in international law and invites us to think about what level of control is required, and what values are served by high or low thresholds in each instance.

Finally, there are a spate of new reports out about the situation in Syria.   Two which I have found particularly insightful are The Syrian Heartbreak by Peter Harling and Sarah Birke, and the International Crisis Group’s new report Syria’s Metastasizing Conflict.    

Have you read anything on the legal implications of the Syrian conflict you would recommend?  Please use the comments box to add to this list.