Iranian, Russian and Turkish Foreign Ministers meet before Astana
As Turkey, Russia and Iran attempt to reconcile their differences and organise a meeting in Kazakhstan between Syria’s Assad government and the opposition, now is a good time to consider the ways in which international law is featuring in the ongoing attempts to achieve a ceasefire and a political solution to the devastating war in Syria.
Gilbert Achcar has accurately described the war as a ‘three-cornered struggle’ between one revolutionary pole and two rival counter-revolutionary camps: both the Assad regime and its jihadist antagonists are ‘inimical to the emancipatory aspirations of the “Arab Spring”’ (to this we might add the Kurdish Spring). He points out that Assad has strained every sinew to ensure that the only plausible alternative to Baathist rule is an extremist Sunni theocracy while the Gulf monarchies (and here we must add Turkey), similarly worried about the dangerous possibility of an outbreak of democracy in the region but unwilling to support Assad, fund and support all sorts of groups that are willing to raise a religious banner. In Achcar’s words:
As a matter of fact, adopting an Islamic fundamentalist profile and growing beards – often for purely opportunistic reasons – became the easiest way to secure funds on the side of the Syrian opposition, resulting in the proliferation of Islamic fundamentalist groups in its midst.
As the situation stands, Syria is being carved-up into spheres of influence. Russia and Iran are providing crucial support to the Assad regime while Turkey and the Gulf states have been long-time supporters of Syrian rebels of various different shades. Among other things, Iran eyes a long route to the Mediterranean via Iraq, Syria and Lebanon; Russia eyes influence over whatever is left of Assad’s territories; and Turkey’s President Erdogan makes no secret of his goal to “crush the heads” of the Kurdish PYD in the north and to prevent them from establishing a contiguous federal region in northern Syria or, indeed, any kind of self-governing region at all.
In the midst of great power machinations, in September 2013, the UN Security Council adopted Resolution 2118 which fully endorsed the Geneva Communique. The Communique states: “any political settlement must deliver to the people of Syria a transition that offers a perspective for the future that can be shared by all in Syria.” One of its most crucial provisions uses the language of the right of self-determination:
It is for the Syrian people to determine the future of the country. All groups and segments of society in Syria must be enabled to participate in a National Dialogue process. That process must not only be inclusive, it must also be meaningful…
The right of self-determination
The right of all peoples to self-determination is often understood as a right to independent statehood for sub-state groups defined by objective characteristics such as language or culture. But state practice suggests that this version of self-determination did not survive World War II. Whether rightly or wrongly, international law consistently favours territorial integrity over secession even in the most dire circumstances. The respected international lawyer James Crawford points out that since 1945 no state created by a unilateral declaration of independence has been admitted to the UN against the declared wishes of the predecessor state.
Instead, there is a line of argument in the academic literature on self-determination to the effect that the right is primarily about broad processes of participation within existing states. The UN’s former Special Rapporteur on the Rights of Indigenous Peoples describes it as a standard of governmental legitimacy. States ought to allow individuals and groups to make meaningful choices in matters touching upon all spheres of life, and the creation of a governing order ought to be the result of processes guided by the will of the peoples governed. In a country like Syria which contains more than one nation, this means that any effort to draft a new constitution and redefine the state as one which is not the sole property of the majority Arab population or of one ruling family should include the Kurds.
In simple terms, self-determination applies within the borders of existing states but it applies to all groups and segments of society, not just the monolithic majority. In Syria, self-determination can justify all kinds of constitutional arrangements to redefine the state and share-out state power. The PKK often opposes the concept of monism, which can be broadly understood as the idea that there is one nation, one state, and one centre of power all tied up with the single nation. Instead of this, self-determination can support arrangements that recognise the existence and value of more than one nation and more than one centre of power within the same state. This can take the edge off the destructive influence of the nation-state, which has a tendency to ignore or paper over cultural differences and, in Benedict Anderson’s memorable phrase, stretch the short skin of the majority nation over a vast and diverse state. Some form of self-government, all the way up to federalism of various stripes, seems in principle like a sound way of securing greater equality between the numerically inferior Kurds and the rest of the population.
Self-determination and the Geneva Process
Although the word ‘self-determination’ is never used in the Geneva Communique, it does express the requirement that all groups and segments of Syria should participate in a National Dialogue process, and that any political settlement should deliver to the people of Syria a transition that “offers a perspective for the future that can be shared by all in Syria,” not just by the majority or by a dominant minority. Whatever that perspective may be, the Communique is clear that it must respect the sovereignty, independence and territorial integrity of Syria (which is compatible with things like federalism and autonomy: the USA is sovereign and has a right to its territorial integrity, but it is a federal state). Thus, the Geneva Communique adopts the language of self-determination without using the word, perhaps because the word self-determination is so bound-up with ideas about independence and secession.
When the UN Security Council, in Resolution 2336, endorsed the Russian-Turkish plan to organise a peace conference in Kazakhstan, it recalled the Geneva Communique and stressed the importance of its full implementation whilst ‘looking forward to’ the meeting in Kazakhstan and viewing it as an important part of the negotiations under UN auspices in Geneva. The last part was added at the insistence of the USA, whose UN Ambassador pointed out that there is a need to ‘wait to see how the arrangement is implemented before casting the full weight of the Security Council behind it’. In other words, the meeting in Kazakhstan is an important part of the negotiations which are supposed to involve discussions between all groups and segments of Syria and which are supposed to result in a perspective for the future that can be shared by all in Syria.
One significant problem with this is that the PYD has been excluded from every important Geneva meeting to date due to Turkey’s objections and its insistence that the PYD is a terrorist organisation in the same league as ISIS (in fact, many of Erdogan’s actions demonstrate that he views the PYD as a much bigger threat than ISIS), and it seems likely that the PYD will be excluded from the meeting in Kazakhstan as well. But it might be claimed, as it has been claimed before, that the Kurds are being offered a chance to participate in the negotiations via another Kurdish group, namely the KNC.
The KNC clearly has a support base in Rojava and the PYD is not the only game in town (although it is clearly the strongest and most well organised), but the reason for tolerating the KNC’s presence at the peace talks is relatively straightforward. As Bilal Wahab points out in a book recently published by the Washington Institute for Near East Policy, there are serious divisions in Iraqi Kurdistan between Masoud Barzani’s KDP, on one side, and the PUK and Goran on the other. As is well known, Barzani’s KDP is close to Erdogan’s government and relies on oil exports through the Turkish port of Ceyhan to secure an economic edge over its Kurdish opponents in the PUK and Goran. Barzani is tough on the PKK and the PYD as he attempts to gain some influence over events in Rojava, whereas the PUK and Goran have opened channels to the PYD and recognised its government.
Tolerating the KNC, which was established by Masoud Barzani and has close links with his KDP, over the PYD is an obvious choice for Erdogan.
The wider point is that regional powers are in the process of carving Syria into spheres of influence in order to reflect the new balance of power in the Middle East, and these attempts will be carried over into any negotiations around Syria’s future. Regional powers have propped up certain forces in the Arab opposition whilst trying to crush others and they are attempting to strictly limit the range of possible outcomes at any eventual peace negotiations by controlling who is present at their negotiating table. In the case of the irredeemable Kurdish PYD (irredeemable because no matter how much it offers to be a good neighbour, the prospect of an autonomous Kurdish entity on Turkey’s border is not acceptable to Erdogan, who is always happy to sacrifice peace and security for power) Turkey is attempting to ‘crush their heads’ and play one faction against another. Regional powers, including the KDP and Turkey, have the ability to isolate them in ungovernable cantons and prevent their economic development (and therefore manipulate the populations under their control), while Erdogan betrays his imperialist ambitions by lamenting Turkey’s ‘losses’ in the Treaty of Lausanne and launching military operations in Northern Syria (as a side note, the title Euphrates Shield is pure propaganda. A more appropriate name would be Euphrates Sword, since the core aim is patently to go on the offensive against Kurdish ambitions and to peel away Arab support for the SDF. The so-called aim to remove ISIS from the border regions is a dramatic reversal of Turkey’s previous policy and could probably have been achieved by the SDF without Turkish interference). Whether the PYD will be able to succeed in its goals in the face of these serious obstacles, perhaps through a desperately needed unified Kurdish approach, remains to be seen.
Attempts are being made to justify this process of imperialist meddling by referring to international law and, more particularly, by using the language of self-determination. After all, it might be argued, if carefully selected and empowered representatives of the opposition hammer out a deal with Assad’s forces at the negotiating table, based on the state of affairs on the ground as secured by outside forces, and the proposed deal or new constitution, which includes basic human rights guarantees but fails to implement legitimate Kurdish demands, is approved by the majority of Syrians in a binary yes/no referendum, then everybody has enjoyed their right of self-determination as reflected in the Geneva Communique. We might not agree with that conclusion, and we might contest it, but at least on purely legal grounds the law can be twisted to fit that conclusion. International law is so indeterminate that it can often be used to bolster arguments for liberation and arguments for oppression. To take a striking example, the construction of racist cantons in South Africa was justified by the Apartheid government as a method of securing self-determination for the black population of South Africa whilst Nelson Mandela’s ANC appealed to the right of self-determination to oppose them. Ingenious arguments were made to legally justify the 2003 invasion of Iraq, and good arguments were made to oppose it. States don’t generally aim to produce legal arguments that will convince professional international lawyers: they just need a vaguely plausible interpretation that they can trot out in public to cloak their actions in the language of international law.
Although the precise details of the meeting expected to take place in Kazakhstan are unknown, and the preliminary ceasefire is shaky at best, and Assad might just be biding his time and waiting for an eventual collapse, there are clearly ongoing efforts to portray imperialism as self-determination; to say that carefully managed and manipulated peace negotiations between parties sponsored by regional powers, with positions of influence substantially created by them, and meeting under the aegis of those same powers, is somehow an important step in achieving the self-determination of the people of Syria.
Former US President Woodrow Wilson, often seen as the progenitor of self-determination, once said: ‘Peoples are not to be handed about from one sovereignty to another by an international conference or an understanding between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent’. At least in rhetoric, the utopian ideal of self-determination was supposed to be an alternative to great power politics. The right of conquest was supposed to be replaced by a new right to make decisions free from domination. Almost 100 years after Wilson made those remarks, we have the sad spectacle of the United Nations being forced to give its imprimatur to a process that has alien domination, rather than self-determination, at its very heart.
- Thomas Phillips
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