Taking the Weight off of International Law: Has Syria Consented to US Airstrikes?

US airstrikes in Syria have raised significant questions about whether the US actions violate international law. That controversy would evaporate if Syria took a path of consenting, of its own volition, to the US military action. A close examination of statements by Syrian government officials since the strikes actually began suggests that we may be further down that road than some think.

If true, we may then also be closer to a case of military intervention by consent (perfectly legal under international law) than a case of the United States’ having to claim that it can use military force when another state is “unwilling or unable” to quell a threat from a terrorist group (a controversial proposition under international law). That would take pressure off of the international legal system, which has had to cope with a situation in which much of the world may support this particular exercise of US power as a matter of policy but many, including natural US allies, have doubted the legality of the operations.

Another way of framing the point: if the US airstrikes are still under the umbrella of an unwilling or unable test, it would become a far less controversial application of that doctrine if the situation involves the territorial state (Syria) approaching a line of fully consenting to the military actions.

If Assad has moved toward consent, then any notion that the US intervention in Syria showcases growing international acceptance of the unwilling or unable test (see Ashley Deeks’ post over at Lawfare) should be approached more cautiously. We may be operating in the realm of some form of consent or an invocation of an unwilling or unable test with a fairly unique set of facts.

So have the Syrians come around? Were previous statements by the regime in advance of the airstrikes a form of strategic posturing (e.g., an attempt to get the US to militarily cooperate with Assad)? Can we consider any Syrian statements now in favor of US actions a form of genuine and voluntary consent since they are made under the condition of repeated military force by a far more powerful state? Are Syrian statements in support of the strikes thus just a form of face-saving–and not true consent?

Those are hard questions. But regardless of the answer to them, here’s the record that suggests a considerable shift in the Syrian position.

Before the strikes began the Syrian government had essentially stated that it was willing and able to cooperate with the United States in carrying out strikes against the Islamic State. And the Syrians added, “Any strike which is not coordinated with the government will be considered as aggression.” (See me earlier post evaluating the legality of US actions in light of those statements.)

As far as I can tell such a hostile statement—including the reference to “aggression”—has not been repeated since the strikes commenced.

Syria has not been quiet when it opposes the actions of others inside its borders. In the past three months, the government submitted several letters to the United Nations complaining about bombings by Israel (labelling them “criminal aggression against the territory and sovereignty” of Syria), hostile actions by Turkey (labelling them “a bare-faced violation of the Charter of the United Nations”), and UN support for NGOs providing humanitarian assistance without Syria’s approval (labelling it “a flagrant violation of the Charter of the United Nations and international law”).

In a letter to the UN in October the government also complained about the arming and training of rebel groups by “certain states” (presumably including the United States):

“[C]ertain States have adopted double standards in their response to terrorism. They have armed, funded, harboured and trained terrorist groups under various pretexts, such as support for the moderate armed opposition. That practice must stop ….”

But what about complaints concerning US airstrikes against the Islamic State (or, for that matter, the Khorasan group)? Answer: a deafening silence in the Syrian letters to the UN.

That silence should be interpreted against the background of Syrian statements in late September following the launch of the US air campaign. The Assad government’s position was signaled in an interview in Reuters with the Syrian minister for national reconciliation.

“A Syrian government minister said U.S.-led air strikes against militants are going in the “right direction” because the government had been informed before they started and they were not hitting civilians or Syrian military targets.
“What has happened so far is proceeding in the right direction in terms of informing the Syrian government and by not targeting Syrian military installations and not targeting civilians,” Ali Haidar, minister for national reconciliation, told Reuters on Wednesday.

It was unclear if the minister for national reconciliation spoke for the whole government, but on September 29, 2014 the Foreign Minister of Syria, Walid Al-Moualem addressed the UN General Assembly. To close observers, his statement “appeared to give tacit approval of U.S. and Arab airstrikes in Syria.” Specifically, he said that ISIS was “unleashed like a monster against Syria, Iraq, and Lebanon. Let us together stop this ideology and its exporters.” He also called for integrating the airstrikes with UN resolutions prohibiting support for foreign fighters (by which he meant all rebels in Syria): “Military strikes should coincide with the implementation of Security Council resolution no. 2178.”

What was tacit became more explicit in an interview the Foreign Minister gave the Associated Press:

Syria’s foreign minister said Monday that the U.S.-led bombing campaign should be expanded to target other militant groups besides the Islamic State group, noting that the fight against terrorism has aligned the Syrian regime with its Western and Arab opponents in a fight against a common enemy.

“They have the same ideology. They have the same extremist ideology,” Walid al-Moallem told The Associated Press in urging a widening of the U.S.-led aerial campaign to include all Islamic rebel factions fighting President Bashar Assad’s government.

In the interview, al-Moallem tried to position his country as being on the same side as the U.S.-led coalition. Asked whether Syria considered itself now aligned with the West because both were fighting the same enemy, al-Moallem replied: “This is the fact.”

In light of this evidence, the US strikes in Syria are on a better legal footing than what first appeared when the US submitted its letter to the UN invoking the controversial unwilling or unable test. That is a relief for the United States. It may also be some relief for the international legal system that aspires to prohibit military force without state consent. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.