In Tuesday’s provocative entry, “Is the United States Already in an ‘International Armed Conflict’ with Syria?,” Ryan Goodman states not only that the US is engaged in armed conflict in Syria – a claim about which there can be little doubt – but also, that the armed conflict may well be international (between the US and Syria) rather than merely non-international (between US and one or more non-State armed groups). While acknowledging that legal scholars differ on this question, Ryan asserts several factors that could support a finding of “international.” Ryan also seems to favor “international” over “non-international” because “international” means that the universal jurisdiction provisions of the Geneva Conventions would apply to (certain) war crimes, thus making the perpetrators prosecutable throughout the world.
That’s a worthy result, but there are also costs of going “international.” For example, the US would then have no ability to object to Syrian forces targeting and detaining US troops. Syria could also target US civilians who participate in hostilities and indefinitely detain US civilians who it deems pose a security threat (think private military contractors). Perhaps of greater consequence and in light of very direct support that Russia provides to the Assad regime, it could well mean that the US would then be at war with Russia, as well as Syria, triggering the same targeting and detention rules that would apply between the US and Syria. The application of those rules might not be limited to Syrian soil, but could possibly be asserted wherever US and Russian interests rub up against each other – not unlike how the US claims that its powers to use force against certain terror groups is global, even though those conflicts are non-international rather than international. In the grander scheme, the US assertion that it is “at war” with Syria, and US military action consistent with that assertion, could trigger arguably legitimate counter-assertions that the US is, in fact, engaged in aggressive war against Syria, in violation of a cardinal prohibition of the UN Charter. It could also serve to weaken the international prohibition against aggression – prohibition that has proven so important to the re-establishment and maintenance of international peace and security (such as it is) in the wake of World War II.
Ryan claims a distinction between “armed conflict” and “war,” but does not explain the difference between the two. There may well be one for purposes of US domestic law, but for purposes of international law, they mean the same. At least, so says the ICRC. Indeed, the reason international law has moved on from “war” to “armed conflict” is to avoid any suggestion that a State’s declaration or other acknowledgment (of war) is necessary to trigger the protections of the Geneva Conventions (which speak not of “war,” but of “armed conflict”).
I share what I assume to be Ryan’s sense of outrage, desperation and desire to do something – anything – about the horror that is Syria. The world, in its collective wisdom, has determined that that’s a job for the Security Council, which, by virtue of the veto power accorded its permanent members, is proving worse than useless. While I’m not nearly as open as are some, e.g., Harold Koh, to the assertion that humanitarian intervention is lawful even in the absence of Security Council approval, I do believe there are alternatives. For example, France has floated a proposition, endorsed by the UN High Commissioner for Human Rights, that Security Council voting practices be changed to take veto powers off the table where serious violations of human rights and humanitarian law are in play. Admittedly, it’s a proposal fraught with difficulties. And while such a long-term gambit for Security Council reform may be of little solace to the Syrian people, it may be more likely to yield long-term benefits, and to avoid more imminent and globally catastrophic consequences, than upping the legal ante through declaration of international armed conflict.