Syrian President Bashar al-Assad’s interview with Foreign Affairs’ Jonathan Tepperman provides several important nuggets for international lawyers and policymakers to analyze. Chief among them are Assad’s suggestion that he will fight an army of 5,000 moderate rebels that the US is training to do battle with ISIL, even if it brings Syria into direct confrontation with the United States.

Here is the key exchange:

Tepperman: The United States is currently training 5,000 Syrian fighters who are scheduled to enter Syria in May. Now, U.S. General John Allen has been very careful to say that these troops will not be directed at the Syrian government, but will be focused on ISIS alone. What will you do when these troops enter the country? Will you allow them to enter? Will you attack them?
President Assad: Any troops that don’t work in cooperation with the Syrian army are illegal and should be fought. That’s very clear.
Tepperman: Even if this brings you into conflict with the United States?
President Assad: Without cooperation with Syrian troops, they are illegal, and are puppets of another country, so they are going to be fought like any other illegal militia fighting against the Syrian army.

In an earlier post, Michael Schmitt and I discussed the international legal prohibitions on training and arming rebel forces in another country (“Having Crossed the Rubicon: Arming and Training Syrian Rebels”).

Tepperman’s question refers to Gen. Allen’s assurance that the rebels will not be directed against the Syrian government. But, as Mike and I pointed out:

“[R]ecent congressional legislation for Syrian rebels provides funds for multiple purposes including ‘securing territory controlled by the Syrian opposition’ and ‘promoting the conditions for a negotiated settlement to end the conflict in Syria.’”

What is more, whether or not arms that the rebels receive are used against Assad’s forces, how exactly do you train this group of fighters and not expect that enhanced military effectiveness to translate into a direct threat to the Syrian military? As Mike and I wrote:

“Somewhat paradoxically, surgical and limited airstrikes against ISIS are arguably a lesser violation of Syria’s sovereignty than arming and training rebels to fight ISIS when those rebels will also use the arms and training in operations against the government.”

Today’s Wall Street Journal story (highly recommended reading) details the separate C.I.A. program to arm and train rebels to fight Assad directly and suggests the enormous difficulties of any program to guarantee such groups will be steered toward one enemy and away from another. Not to mention what might happen if you have two programs running simultaneously, one by the C.I.A. tasking rebels to fight Assad specifically and one run by Gen. Allen to get rebels to fight ISIL.

Mike Schmitt and I took no position on the advisability of arming and training the rebels. And, indeed, one might even conclude that since the United States has already pursued this path in Syria, Congress and the Obama administration have crossed a line and should not shy away from doing more. Our point was to understand the legal implications of ongoing military actions; and, on the basis of Assad’s interview with Foreign Affairs, the point here is to understand the potential scenarios unfolding on the ground.

U.S. airstrikes operating without Syrian “permission”

That brings us to a second key nugget in the Assad interview. In an earlier post, I analyzed a series of actions by the Syrian government, which had been noticed as well by some close observers, suggesting that Syria might be inching closer to a form of consent for U.S. airstrikes. That analysis was drawn from the fact that the strikes targeted ISIL directly and not Assad’s forces, along with a set of positive statements made by Syrian officials since the strikes began.

However, it looks like we may be back again to square one. At the start of the interview, because of the way Tepperman constructed a question it first seemed like Assad was reiterating the line that Syria was effectively cooperating with the US strikes against ISIL. However, later in the interview Assad stated flatly that the ongoing strikes are taking place without his government’s “permission” and are accordingly “illegal.”

Here is the key exchange on lack of Syrian permission for the airstrikes:

Tepperman: So what would you like to see from the United States? You mentioned more pressure on Turkey …
President Assad: Pressure on Turkey, pressure on Saudi Arabia, pressure on Qatar to stop supporting the rebels. Second, to make legal cooperation with Syria and start by asking permission from our government to make such attacks. They didn’t, so it’s illegal.
Tepperman: I’m sorry, I’m not clear on that point. You want them to make legal … ?
President Assad: Of course, if you want to make any kind of action in another country, you ask their permission.
Tepperman: I see. So a formal agreement between Washington and Damascus to allow for air strikes?
President Assad: The format we can discuss later, but you start with permission. Is it an agreement? Is it a treaty? That’s another issue.

Assad’s statement about lack of permission for U.S. airstrikes undoubtedly raises questions about the legality of ongoing U.S. operations. We are thrust back into questions about the legal viability of the US doctrine asserting that the United States can use force if a host state is “unwilling or unable” to quell a threat from a terrorist group inside its borders.  Jen Daskal, Ashley Deeks and I discussed those issues in a post back in December. And Monica Hakimi wrote a nuanced analysis of those issues last week. (Also check out this debate at Just Security which includes a diverse set of viewpoints on the unwilling or unable test.)