When the center cannot hold

The collapse of state authority and rise of ISIS in Syria reveal gaps and challenges to international law. To better understand the issues that the situation in Syria raises, Richmond Law sat down with associate professor Chiara Giorgetti, author of A Principled Approach to State Failure: International Community Actions in Emergency Situations.

You’ve studied state failure extensively. What defines a failed state?
There is no legal, internationally agreed upon definition of what a failed state is, which is part of the challenge. The Montevideo Convention says that to be a state you must have a defined territory, a defined population, a government, and the capacity to enter into international relationships. But the rules are confined to making you part of the club, not getting you out of the club. Once you are a state, you are a state.

So failed and failing states are more of a political category, something the international community has come to understand as states that cannot fulfill the social contract. These states cannot provide basic rights and services to their populations, nor can they play their role in the international community.

Generally speaking, what challenges do failed states pose for the rest of the international community? For their own people?
One is the development of terrorism and other severe security threats. Al-Shabab, the extremist terrorist organization in Somalia, affiliated with al-Qaida, has been able to become so strong in Somalia, even also threatening Kenya, because Somalia lacked a strong government and was unable to stop its growth.

Failed states also don’t participate in the international community in general. So, for example, think about commercial flying. Every country has the legal responsibility to control its air space, but a failed state cannot do that.

There can also be health repercussions. You’ve seen Ebola, right? One big concern was that the health systems of the countries affected were quite weak, but at least they had an infrastructure. A failed state cannot give warnings about possible health emergencies.

They also can’t control their borders, which means they are susceptible to piracy, as we saw in Somalia, and the illegal trafficking of people, drugs, and arms. These are all dangers when the state cannot fulfill its international obligations.

The citizens in failed states don’t get their part of the state bargain. The entire human rights infrastructure operates through the idea that states guarantee rights to their own people. The populations in failed states suffer humanitarian and development deficiencies. Typically, economic development is very low. There is no schooling, no health system, no physical or even legal infrastructure, no roads, and such.

Let’s turn to Syria, which seems to be falling apart. Is it more like a failed state than not?
Failed and failing states exist on a continuum. Implicit in the notion of state is this notion of territorial integrity. In the case of Syria, you have some areas that are under the control of the central government and some areas that are not. You may not like the central government but it’s a government, so Syria as a whole is not a failed state. The Syrian state still has a lot of power. It still participates in the international community.

Areas where the government has lost control are closer to meeting the definition of a failed or failing state. One thing to consider when you think about state failure is that the entire state does not have to have failed. Part of it can be failed and part of it not.

ISIS claims it has set up a new state in the areas that it controls. Obviously, no one is about to recognize it. Is statehood a legal question, or is it purely diplomatic?
There is no legal obligation to recognize a new state. The Montevideo Convention doesn’t say you have to recognize a new state, nor are there consequences to other states for not doing so. Theories on recognitions are broadly divided into declarative theory, which provides that recognition is merely a declaration that does not influence the existence of the state, and the constitutive theory, which holds that recognition is required to be considered a state.

But in the case of ISIS, the real question is what is a state? ISIS controls territory and calls itself a state. Around the world, there are a lot of insurgent movements asking for recognition, and some of them have control of a small, defined territory, like Somaliland. But ISIS is in a whole different category because of its very dangerous politics and the fact that it’s a very violent group. There is an urgency to try and stop ISIS because of the danger it poses both in the territory that it controls and to the wider international community.

What really makes you a state in the sense of being recognized as a player internationally is admission to the United Nations, which is a legal process. It’s also political, but it has legal provisions. You have to go through the General Assembly and then the Security Council. The Security Council is the body that finally admits countries, but tensions exist within the United Nations and within the Security Council.

What are some of the other challenges to international law that the conflict in Syria poses?
There is the important issue of whether there is a duty to intervene to protect people who are suffering. The responsibility to protect has been recognized as an important guiding principle by the international community, including the United Nations. The secretary-general has issued a big report about it. The idea is that the responsibility to protect people lies first with the state itself and then with the international community. It is not an obligation, though some argue it should become one. But it’s not at the moment.

Do you mean a legal obligation or a moral one?
I’m noting the difference. There might be a moral duty to protect, but there is no legal duty. As international law now stands, a state has to call on you to intervene within its borders. If Syria says, “OK, come help me,” then the international community can go. But if Syria doesn’t call, then they can’t go. It’s all based on the idea that states decide what happens within their borders.

That’s the difference between international involvement in Iraq and Syria, then? The Iraqi government has asked for intervention.
Exactly. It’s all state-based.

On the main page of its website, the International Criminal Court lists nations in which there are “situations under investigation” or where the ICC has begun “preliminary examinations.” Syria is conspicuously absent from either list. Why?
This is a question about jurisdiction. The jurisdiction of the ICC is limited by the Rome Statute, which created it. The statute provides that the ICC can act if a certain crime is committed in the territory of a signatory country or by a national of one of these countries. Under very specific cases, the Security Council can ask the ICC to investigate a situation, which has happened twice, in Sudan and Libya. The problem with Syria is that they haven’t signed the Rome Statute.

But aren’t some crimes so horrific that they supersede any state jurisdiction?
This is a very interesting question. The question is this: The crimes exist, but who has the jurisdiction to prosecute them? This is a huge distinction. We say that the core crimes of international humanitarian law are genocide, crimes against humanity, and war crimes. The international community has decided that these are horrific and always against the law. But what does it mean to say that these are against the law? It doesn’t mean that the ICC has jurisdiction.

There is another way in which jurisdiction can be attached, and that’s universal jurisdiction. This was used by the Belgians for a period of time. They said that regardless of where a crime was committed, or by whom, or who the victim was, some crimes are so horrible that any court should have the right to investigate and prosecute. But it’s very limited. Only the Belgians and, to a certain extent, the Spanish have decided to use it.

That gets us to another question. In Syria there are plenty of foreign fighters, many of them coming from the West. Do they have a different legal standing than Syrian fighters?
Again we see the difference between the crimes themselves and the question of the ability to prosecute them (the question of jurisdiction). For example, let’s take a British citizen who goes to Syria and commits horrible crimes. He could be prosecuted by the ICC because the UK has signed the Rome Statute. But at the ICC there is also the principle of complementarity. This means the ICC will prosecute only if domestic courts won’t or can’t do it. It would be expected for a British citizen to be prosecuted in Britain first.

So what about the Syrian citizen?
The Syrian could not be prosecuted under the ICC because Syria hasn’t signed the Rome Statute, unless there is a Security Council resolution, which is unlikely. Of course, the Syrian could be prosecuted by Syria later or be prosecuted under universal jurisdiction in domestic courts by the Belgians or whomever.

Does that mean that a British fighter committing international crimes in Syria is in greater legal jeopardy than a Syrian national?
Yes. Or let’s say that the legal system provides more avenues for prosecuting the British citizen. The term “jeopardy” sees the situation from the offender’s point of view.

It is possible that once fighting concludes, there might be some form of a tribunal or a truth commission constituted to investigate the crimes. Very often when fighting terminates nowadays, you have the establishment of a truth and reconciliation commission or some form of international or semi-international tribunals that try to find out what happened and sometimes prosecute. In Rwanda, it was interesting because you had the International Criminal Tribunal for Rwanda, but then you had a lot of prosecutions in Rwanda itself and a unity and reconciliation commission. Just because things are not happening now in Syria doesn’t mean they won’t happen in the future.

Photo: Kobane, Syria, March 2015 (Yasin Akgul/AFP/Getty Images)