Known as the Wissenschaftliche Dienste, or Scientific Services of the Bundestag, their thorough report makes clear that Russia was asked by the recognised government of Syria for help. Its presence in Syria is without doubt legal under International Law.
On the other hand, US activities in Syria can be seen as two phases, the report states. The first is an attempt at “regime change” and the second involves ISIS.
The provision of arms to insurgents in Syria by the US (and others) was and remains illegal. It is a breach of the Prohibition on the Use of Force in international law specifically of the UN Charter Article 2(4):
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The US has long argued that its presence in Syria was in collective self-defense under Article 51 of the UN Charter because the Islamic State in Syria threatened to attack the United States. That, in itself, would be insufficient as Syria is a sovereign state. The US therefore additionally claims that the Syrian state is “unwilling or unable” to fight against the Islamic State.
The Scientific Services says that the claim of “unwilling or unable” was already dubious when the US operation started. The report cites two reasons.
The first is that it is not a law or an internationally accepted legal doctrine, as at least 120 UN members have argued strongly against it.
The second reason is that the Syrian government itself have been fighting ISIS, but it could not operate in large parts of its territory since the Islamic State had taken control. This fact does not justify the “unable” argument. Moreover, ISIS has been largely defeated and it no longer has any significant territorial control, making the argument redundant.
The already tenuous legal case for the presence of the US and its coalition troops in Syria can no longer be made, and it is clear that their presence in Syria is illegal, the report states.
The report also highlights Israel’s attack on Hizbullah and Iranian units and installations in Syria, as well as against Syria itself, claimed by Israel to be “anticipatory self-defense” under UN Charter Article 51.
But “anticipatory self-defense” can only be claimed when attacks against Israel are imminent, and the report states that the case has not yet been made. “Pre-emptive self defense” is therefore not an accepted doctrine of International Law.
The service was not asked for an opinion on Turkey’s incursion into Syria but it notes that claims of “self defense” by Turkey are dubious and may eventually hide geostrategic motives.
The Scientific Services of the German Bundestag is the equivalent to the Congressional Research Service in the United States. Members of the Bundestag rely on the Services to give their neutral expert opinions on legal questions and other issues. Opinions by the Scientific Services are generally held in high esteem.
The stated legal arguments are not new, but the report has added an authoritative voice to many misgivings. The German parliament will now unlikely renew the mandate for their operation in Syria. If Germany walks away, other countries will likely follow and end their participation in the US coalition, as Germany has been a key partner of the US coalition of the willing against ISIS. Its military has flown reconnaissance missions from Turkey and Jordan in support of the US operation using the same legal argument as the Americans.
While this is will not change the situation on the ground in Syria, it does signal a change on the international political radar, because the Syrian government will no longer be viewed as illegitimate.