On Friday, Syria’s Ambassador to the United Nations stated that a U.S.-backed assault on ISIL’s capital city of Raqqa would be illegitimate unless militarily coordinated with Assad’s government. “Any military presence on our territory without the approval of the Syrian government is an illegitimate presence,” Syria’s Ambassador to the UN Bashar al-Ja’afari told reporters. This statement harkens back to statements made by the Syrian government in August 2014, days before the United States first launched strikes inside the country. At that time, Damascus declared, “Any strike which is not coordinated with the government will be considered as aggression.” The Syrian government’s position, however, is on shaky legal grounds, and the United States may be legally precluded from accepting such a demand.

We have been down this path of legal analysis before–with respect to the Secretary John Kerry’s consideration of military cooperation with the Russian military inside Syria. This issue has also been directly discussed at Just Security by the highly respected Claus Kreß. In his piece, Professor Kreß addressed the question whether the United States could accept Syria’s invitation to militarily coordinate strikes against ISIL given the Assad regime’s commission of war crimes. Here’s the key paragraph in Kreß’s analysis:

To start with the first scenario, it is submitted, that a State must not rely on the legal title of “intervention by invitation” where the acceptance of the invitation by a “criminal regime” would amount, by virtue of the conditions attached to the invitation by the regime, to a violation of the duty not to assist another State in the commission of serious violations of international law, including war crimes and actions rising to the level of crimes against humanity. As I have detailed in a recent article, while States may continue to be reluctant consistently to assert this duty, it flows from the customary rules on State responsibility. In a very enlightening recent article, Professor Monica Hakimi has usefully connected this body of law with the concept of the Responsibility to Protect. Yet, whether the acceptance of President Assad’s condition of “coordinated action” would entail the high risk for the accepting State to become engaged in a course of conduct amounting to internationally wrongful assistance to Syria’s violations of international law, is not easy to say.

Professor Kres refers to “the customary rules of State responsibility” as the source for this legal prohibition. The elements of the relevant rule are fourfold:

  1. The State aids or assists another State in the commission of an internationally wrongful act;
  2. Such aid or assistance contributes to the commission of that act;
  3. The assisting State has intention to facilitate and/or knowledge of the circumstances of the internationally wrongful act; and
  4. The recipient State’s act would also be wrongful if committed by the assisting State.

An important caveat: One must appreciate the particular U.S. position on the third element of the rule. As Miles Jackson and I have explained, there is an ongoing debate in legal circles as to whether the assisting State must have an intention to facilitate the wrongful act. As we noted, “the United States, for one, stated its support for some element of intent (the exact contours of its expressed position are not clear).”

Miles and I also explained that there may not be much of a difference in the U.S. and other States’ views of the third element in a particular set of circumstances: when a State acts with knowledge that there is a practical certainty that the other State will engage in the wrongful conduct. We wrote:

Nonetheless, it is worth noting that the two positions may not be that far apart (as is often shown in domestic law on complicity). Even if intent were required, if the assisting State’s knowledge of the circumstances approaches something close to practical certainty that the principal wrong will occur, it may be possible to make an inference of intent. Professor Vaughan Lowe QC argues that “as a matter of general legal principle States must be supposed to intend the foreseeable consequences of their acts.” If this is right, whatever the assisting State’s overall purposes, if it knows that its assistance is significantly contributing to the commission of the principal wrong it may be legally responsible.

A final note: this analysis would also apply to proposals for US cooperation with Russian forces in fighting ISIL or Al Nusra in Syria. Indeed, I originally wrote the same analysis in connection with Secretary of State John Kerry’s attempt to broker such a deal with Moscow in September 2016. What other legal options remain open to the United States in fighting ISIL and al Nusra inside Syria is a separate question. The point here is simply to identify the weak legal foundation of Syria’s position on the question of military coordination with their government due to their record of systematic war crimes violations.

Photo: United Nations