Many are debating whether the Obama administration should essentially go to war with Syria in an effort to halt the atrocities that Assad is committing in Aleppo and elsewhere in the country. Meanwhile, the White House seems disinclined to admit that recent U.S. military actions have already crossed the threshold of what international lawyers would see as an “armed conflict” between the United States and Syria. Why doesn’t the Administration admit it, and what’s at stake in failing to do so?
A cruel irony is that acceptance that an armed conflict exists between the two countries could have significant advantages for addressing Assad’s flagrant violations of humanitarian law. States that have signed up to the Geneva Conventions, which now includes every nation on the planet, are legally obligated to hunt down suspected war criminals who pass through their country and then prosecute or extradite them. Think what that might mean for Syrian officials, and for handing diplomats a new stick in efforts to confront Damascus and Moscow. The Geneva Conventions’ system of enforcement, however, applies only to war crimes committed in conflicts between two or more states (think: United States vs. Syria), and does not apply in conflicts between a state and a nonstate actor (think: Syria vs. rebel groups).
Why do I say that recent military actions cross the line of an international armed conflict, and not the thousands of American bombs that haven been dropped on ISIL targets over the past two years? It may come as no surprise that international lawyers dance on the head of the question of when confrontations should be called an “international armed conflict.” When U.S. forces first started bombing ISIL in Syria, we lawyers debated (and continue to debate) whether that meant the armed conflict was just between the United States and the armed group or directly between the United States and Syria. The more conservative approach holds that such strikes result in an armed conflict only between the United States and ISIL. On this view, an international armed conflict would exist only if two government forces directly clash with one another, or if one state takes control over the territory of the other. That said, even on this view, it does not require a significant level of force between two states to trigger an armed conflict. Even the detention of a single soldier would do the trick.
That’s where recent U.S. military activities have changed the equation. Since I left the Pentagon, three groundbreaking events have occurred in this space.
First, the U.S. military has enforced what many consider essentially amounts to no-fly zones that demand the Syrian air force avoid airspace over areas in which US-supported coalition forces and US personnel are operating.
Third, the United States appears to have directly bombed Syrian military forces. Damascus says this was no accident, and they might very well believe that. To be sure other countries, including even U.S. allies in the region, have held more paranoid thoughts about our motives and our actions.
The Administration might be reluctant to admit these events amount to an armed conflict with Syria, because such an admission could lead to an uncontrolled escalation of hostilities. If the President walked out onto the Rose Garden tomorrow and announced that the United States was in an armed conflict with Syria, just imagine the results. The Defense Department’s recent Law of War Manual acknowledges this political reality as a general feature of international affairs. “Government officials may deny that an armed conflict exists,” the manual explains, “to avoid an escalation in fighting and to facilitate a diplomatic resolution.”
To say we are in an armed conflict, however, is not to say we are at war. The definition of an “armed conflict,” which preoccupies humanitarian lawyers who want to know if the Geneva Conventions apply, is not the same as the political state of affairs involved in “war.” Remember even the detention of a single soldier would presumably be enough to trigger the protections of the POW Convention, yet that is nowhere near a sufficient amount of force to be considered a war between two states. Indeed, as odd as it might sound to a policymaker, a detained soldier may properly be classified as a “prisoner of war” even when there isn’t a war.
In some respects, we have been here before. In 1983, American Lieutenant Robert Goodman was shot down over Lebanon and captured by Syrian forces. At a news conference, a reporter asked whether Lt. Goodman was a POW, and President Reagan denied it. “I don’t know how you have a prisoner of war when there is no declared war between nations,” he said. The President may have wanted to avoid the suggestion that the United States was now in direct armed conflict with Syria, which was strongly backed by the Soviet Union at the time. Years later, a senior Pentagon lawyer revealed that the administration had, days before Reagan spoke, secretly insisted to the Syrians that they classify Lt. Goodman as a POW. The Pentagon official explained, “The one-hour air strike probably did not meet the general criteria for a war, but it did cross the threshold for application of the 1949 Geneva Convention.”
The Obama administration is right to think that these distinctions—between “international armed conflict” and “war”—may be lost on the public, and likely even among many diplomats and other world leaders. If the President, however, were to acknowledge the current state of legal affairs, it may go a long way to advancing his humanitarian goals for Syria. Among other effects, it would help set in motion the Geneva Convention’s global war crimes enforcement regime. Part of that announcement, however, might require an element of public education. Perhaps essays and the like by independent legal experts may help jump start that process.