Letter to the Editor: Syria and the “Implicit Consent” Myth–A short reaction to Ford (and Goodman)

In a recent post on Just Security (available here), Chris Ford raises the issue whether the Syrian government may or may not have ‘implicitly’ or ‘tacitly’ consented to US-led coalition operations in Syrian territory, precluding wrongfulness of the operations under the jus contra bellum (“law against war”) framework. The possibility of such implicit consent by the Assad regime to coalition operations was raised previously by several scholars, including in a prior post on this blog by Ryan Goodman (see here). Writing in late 2014, Goodman (correctly) found a striking difference between the strong opposition by Damascus to bombings by Israel as well as Turkish incursions, on the one hand, and the much more muted stance vis-à-vis Operation Inherent Resolve, on the other hand. Two years later Ford draws attention to the fact that ‘Syria has never formally objected to the U.S. activities in its country,’ observing that ‘[a] letter to the Security Council would be a clear manifestation of its [lack of consent]’.

What Ford appears to overlook, however, is that such letters have effectively been sent to the UNSC (as was previously stressed, for instance, by Van Steenberghe in a post at EJIL:Talk! – see here). In fact, ever since the start of coalition operations against Daesh on Syrian territory, the Damascus regime has on multiple occasions voiced its position that the coalition intervention is incompatible with international law (including, for instance, in an interview of Assad by Paris Match, available here). In a letter to the UN dated September 17, 2015 (UN Doc S/2015/719), Syria “informed” the Security Council that “the United Kingdom, Australia and France are currently taking military measures against the Syrian Arab Republic” relying on a “distorted reading of the intention of Article 51 of the Charter of the United Nations.” Syria further expressed surprise 

“that certain States, some of which are permanent members of the Security Council, are violating international law and the Charter of the United Nations and have the temerity to explain their actions by distorting the meaning of [Article 51] in a manner that risks causing chaos and wars across the world. Syria has not made any request to that effect.”

In another letter dated 21 September 2015 (S/2015/727), one finds the following passage:

“The United States, Britain, France, Canada and Australia have sought to justify their intervention in Syria by citing the fight against ISIL. They have invoked Article 51 [UN Charter], but have not consulted with the Syrian Government. That course of action distorts the provisions of the Charter and manipulates international law.”

The language of these letters – even if admittedly ‘softer’ in tone than Syrian UN letters pertaining to Israeli and Turkish operations – simply forecloses the possibility of Syrian ‘consent’ to Operation Inherent Resolve (at most the Syrian position could perhaps be qualified as a waiver of claim).

On a more general note, I’ve been surprised on more than one occasion how some, more ‘restrictionist,’ scholars have expressed sympathy for a flexible interpretation of the ‘intervention by invitation’ doctrine in situations of alleged ‘passive’ or ‘tacit’ consent. Such approach is seen as a useful alternative to embracing the Pandora’s Box that is the controversial ‘unable and unwilling’ doctrine of self-defense. Yet, such approach – at best – simply trades one slippery slope for another. It seems at times as if we’ve forgotten the hard lessons of past days when the Soviet Union saw itself fit to intervene in Hungary (1956) and Czechoslovakia (1968) and the United States for its part set up controversial interventions in the Dominican Republic and Grenada. Take the Soviet intervention in Czechoslovakia for one. When in 1968, troops of the Warsaw Pact States flooded Czechoslovakia, President Svoboda publicly declared that the Czechoslovakian army would not resist the invading troops. Should such reaction be regarded as ‘passive’ or ‘tacit’ consent, rendering the Soviet intervention lawful? Like Ford, the present author strongly believes the question must be answered in the negative if the prohibition on the use of force is to retain any normative value. Recent years have (again) seen an epidemic of interventions justified at least in part by reliance on ‘intervention by invitation,’ including, for instance, the Saudi-led intervention in the Yemeni civil war which has caused widespread suffering for the Yemeni population with no political solution in sight. The last thing we need is a further erosion of an ‘intervention by invitation’ doctrine that is already highly indeterminate and prone to abuse. 

About the Author(s)

Tom Ruys

Professor of International Law at Ghent University, Founder of the Ghent Rolin-Jaequemyns International Law Institute (GRILI)