(Zaman Al Wasl)- By reading the deal signed between the Syrian opposition factions, Turkey, and Russia we can conclude that this agreement is at its core a political deal and not an agreement to a ceasefire. The aim of the agreement is for both sides to form a delegation to participate in the Astana negotiations, and it is not deal regarding a ceasefire, but the regime announcement of its willingness to engage in a ceasefire. The regime’s announcement received opposition support, but the opposition is not a party to this ceasefire or bound to uphold it as the two parties did not arrive at a ceasefire agreement.
Perhaps this quintessential difference becomes clearer when we compare between the texts each side signed. The differences in the texts are not formalities, but fundamental issues related to legal concepts and legal basis of both texts.
In our current situation what happened can be described in the following legal terms:
The regime released an announcement of a one-sided ceasefire, and that it will work to form a delegation for the Astana negotiations.
The opposition aided the ceasefire announcement as per its agreement with Turkey and Russia. Based on the agreement, the opposition is obliged to form a delegation to participate in the Astana negotiations.
In legal terms, the regime is obliged of its own will to uphold the ceasefire and not due to a contract or agreement with the other party. We are not before a contractual situation, but face two different legal operations. The first is the regime commitment to the ceasefire which it can retract at any point in time since it agreed of its individual will. The second operation is the opposition’s agreement with Russia and Turkey to adhere to the ceasefire which the opposition are obliged to uphold based on their contract with Turkey and Russia, and not with the regime.
The Issue Becomes Clearer by Analyzing the Two Signed Documents
1- The regime document is entitled: “An announcement to form a delegation to begin negotiations for a political settlement for a comprehensive solution to solve the Syrian crisis in peaceful ways.” Whereas the opposition document is entitled: “An announcement to form a delegation to begin special negotiations for a political solution to comprehensively solve the Syrian crisis in a peaceful way.” The variation in the titles defines the nature of each document as separate considering the regime document an announcement released by the regime while the opposition document is an agreement with Turkey and Russia and not the regime. According to the regime’s document, the announcement aims at communicating for a peaceful political settlement, and the “peaceful ways,” the plural used, is important as it indicates that more than one method to reach peace is possible. The opposition document identified the aim of the agreement as the beginning of negotiations for a political solution aiming to solve the Syrian crisis peacefully. The specification of the singular “a peaceful way,” must be understood according to the words that follow it where the opposition defined the peaceful method as beginning with the political operation relying on the Geneva document.
2- The regime document begins by saying that the government of the Syrian Arab Republic announced the ceasefire system to begin on 30 December 2016. “Ceasefire system” indicates that the ceasefire is not comprehensive, but is limited to a system that allows the military forces to undertake military action according to a specific apparatus that is not specified in the agreement, but is mentioned in another unpublished document which the opposition delegation says it did not sign.
The opposition document begins by saying that the armed faction commanders support the halt in fighting announced in Syria on 30 December 2016, and they join the ceasefire. This clarifies that the opposition is not a party to the ceasefire, but merely supporting the ceasefire singularly announced by the regime. Secession of fighting operations holds different meanings than the term ceasefire incorporated in the regime text. There are various opinions among international law experts regarding the inclusiveness of the term fighting operations, whether include all forms of military activity, and does it mean a ceasefire or just a secession in hostile acts which is a narrower scope of action than ceasefire.
3- The regime document says that the government, “Confirms that there is no alternative for a comprehensive solution for the Syrian crisis, and that it must begin with a political operation in Syria taking guidance from the United Nations Security Council decision 2254.” The term political solution was not included indicating that the government wants a comprehensive solution without specifying if it is political or not; the text only specifies that there must be a political solution.
The opposition document states that the opposition faction commanders, “Confirm that there is no alternative for a comprehensive political solution for the Syrian crisis, and that they must quickly begin work in the political process in Syria in the form dictated by the Geneva 2012 statement and the United Nations Security Council decision 2254.” The Geneva 2012 statement was omitted from the regime text, and the political process mentioned in that text will only take guidance from the UN Security Council decision 2254. The regime document is not based on the UN decision, but merely draws from it for a directional framework for the political process. This difference between the two texts, clarifies that the texts have separate reference and frameworks.
4- The regime document states, “The complete respect for the sovereignty and unity of the territories of the Syrian Arab Republic.” While the opposition document says, “The opposition admits it respects the complete sovereignty of the Syrian Arab Republic.” In legal language, ‘admits’ can be understood as the opposition not previously respecting Syrian sovereignty, and admitting it now respects the sovereignty and unity of the Syrian territory. This obligation will have future legal ramifications.
5- The regime’s text says that its announcement came as a result of its respect for sovereignty, secrecy, to guarantee the interest of the Syrian people, ending the bloodshed, preserve the independence of the state, and to stabilize the country quickly in coordination with the Russian Federation representatives who are referred to later as the guarantors. On the other hand, the opposition document states, “The opposition admits its complete respect for the sovereignty of Syria, the unity of its lands, the need to provide for the interests of the Syrian people, put an end to the bloodshed, ensure the independence of the state that represents all the Syrian people, and they announce their comprehensive interest in stabilizing the country’s situation with the participation of Russian Federation representatives and Turkey as the guarantors.
The opposition text makes them party to the bloodshed and the instability. This legal language confirms that the regime is the legitimate institution responsible for the solution in Syria. The opposition is then positioned as concerned with issues considered at the core of the regime’s specialization implicitly indicating the legitimacy of the government’s actions because it seeks to achieve stability, maintain independence and stop the bloodshed. The language of the texts is not only different, but the opposition obliged itself and took on responsibilities without any realistic or legal justification.
Clear Disparity Between the Texts
1- In the 1st paragraph of the regime document was the following, “The government is committed to forming a delegation at a date no later than 31 December 2016 to conduct special negotiations for a political settlement, and the government independently assigns the government delegation members.” The counterpart paragraph in the opposition document says, “The opposition commits to forming a delegation to conduct special negotiations for a political solution aiming for a comprehensive solution for the Syrian crisis using a peaceful way by 16 January 2017, and with the direct participation of the guarantors.” Regardless of variation in the aforementioned dates, the objective of forming the delegation is different. For the regime, the aim of forming the regime delegation is to undertake negotiations for a political settlement whereas the opposition document states that forming the delegation aims at undertaking a political solution with the object of reaching a comprehensive solution for the crisis using a peaceful means.
The most dangerous aspect incorporated in the opposition text is that the opposition obliged itself to forming a delegation, “with the direct participation of the guarantors.” According to the agreement, Russia and Turkey have the right to play a direct role in forming the delegation. In contrast, the concluding sentence in that paragraph states that the opposition will determine its delegation singularly contradicting the preceding phrase. Legal interpretation for any text dictates that agreement between the two related and contradictory sentences must be found. The agreement gives the guarantors the right to oppose the nomination of specific persons as delegate members and the right to suggest names. Forming the opposition delegation will be a joint work between the opposition, Russia and Turkey. The clause signals the end of the High Negotiation Committee’s role for Russia and Turkey to take its place.
2- In the 2nd paragraph of the regime’s document came the following, “The delegation begins joint work with the opposition delegation at a time no later than 15 January 2017 in Astana with the contribution of the United Nations.” The 2nd paragraph of the opposition document says, “The delegation will begin joint work with the other delegation starting from 23 January 2017 in Astana with United Nations participation.” These two sentences clarify that at hand is not a negotiation operation but “joint work” between the two sides; it is closer to a joint workshop than a negotiation. Regardless of the difference in the expected start dates, the documents assign different roles to the United Nations. Participation is used in the opposition document while contribution is employed in the regime document. Contribution is a lesser degree than participation indicating that the UN presence will be a formality as per the regime document.
3- In the 3rd paragraph of regime document came, “Based on the results of the joint work between the delegations at a deadline of no later than… 2017, a road map for a political settlement for the internal crisis in Syria will be reached.” In contrast, the 3rd paragraph of the opposition document included the following, “As a result of the joint work both delegations prepare a road map to solve the Syrian crisis in the shortest time possible.”
There are perhaps the most dangerous of all paragraphs in the texts. The two texts differ fundamentally in terms of the objective and approach to the process. The regime’s text sets the road map as contingent on the results of the delegation’s joint work. The regime’s text does not specify that both delegations will draw up the road map whereby the regime can potentially draw up a road map singularly. According to the regime document, the joint work in Astana aims at establishing a basis to draw up a road map, but does not aim to draw up this road map. The road map is an independent operation to the joint work. The opposition text is more inclusive, stating that both delegations will draw up a road map.
There remains one more fundamental comment to make. Although the term “negotiation” comes in the title of both the regime and opposition documents, and it appears in the 1st paragraph, the term “joint work” is used in the 2nd and 3rd paragraphs. This discrepancy is most apparent in the 2nd, 3rd, and 4th paragraphs of both documents.
4- The 4th paragraph of the regime document included the following, “The work of both delegates will happen with the support of the guarantors.” The opposition text says, “The work of both delegations will happen with the guarantors’ sponsorship.” The variation highlights the different roles assigned to each guarantor. Sponsorship includes the concept of suggestion, approximating points of view, and participation in the talks whereas support means supporting the joint work and its outcomes without intervening.
5- The 5th paragraph of the regime text says, “Identical documents of the text were signed and they are legally effective in Russian and Arabic independently,” whereas the opposition document states that three copies signed enjoy the same legal weight in Russia, Turkish and Arabic. The regime is committed to the Arabic and Russian text, but it is not committed to the Turkish document. The Russian document is identical to the regime’s Arabic document, but it is different to the opposition document. In the event of a conflict or dispute regarding the two texts, the opposition will not be able to draw on the Turkish text as the regime did not sign it and is not obliged with it. The regime can protest drawing on the strength of the Russian text since the opposition signed it. Effectively, the regime is not obliged to commit to any documents except those its delegation signed which are different to the opposition texts. The opposition on the other hand, is obliged to adhere to the Russian document which is identical to the regime document. The ramification of this deficiency will emerge in the coming days.
Results and Conclusions
The documents signed by the opposition have massive problems, namely:
- The legal language of the documents is filled with legal doubts.
- The differences in the Arabic, Turkish and Russian texts.
- The differences in the Arabic text signed by the regime and that signed by the opposition.
- The opposition is obliged to adhere to the Russian text which is identical to the regime text, but the regime is not obliged with either the opposition text or the Turkish text as it did not sign the Turkish version.
- The aim of the agreement is joint work and through its results will lead to placing a road map without identifying who will be drawing up this road map.
- To summarize, what happened is merely a summons for the opposition to go Astana without any guarantees which will lead to the destruction of the High Negotiations Committee, and cancellation of all international and legal references that were protecting the opposition. According to the texts signed, operation Astana is an entirely new operation that is not based on any prior international references with the aim of establishing a new base to draw up a road map to solve the crisis.
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