The Illegality of a Continued U.S. Presence in Syria post ISIS

The Illegality of a Continued U.S. Presence in Syria post ISIS

House destroyed by a Syrian army tank shell in Al Qsair. Jan. 25, 2012

With Bashar al-Assad’s increasing control over the Western half of Syria, and the advance of U.S. backed forces in the East, the Syrian civil war has entered a new phase. To date, these two campaigns have managed to largely remain separate, but as the ISIS threat shrinks, Syrian and U.S. backed forces are converging on the same cities. With every passing day, the apparent legitimacy of a U.S. led intervention in Syria decreases. This piece shall attempt to analyze the possible justification for the U.S. intervention in Syria and assess if those justifications are still valid considering the Assad Regime’s increasing control over the country.

While the U.S.’s active military involvement in Syria began with the September 2014 strikes on ISIS forces in Syria, it has been careful to avoid providing any explicit legal justification for the same. This leaves in question the legal backing of the U.S.’s military intervention in Syria.

In November 2015, the Security Council adopted resolution 2249, which called upon member states to “take all necessary measures, in compliance with international law, in particular with the United Nations Charter,” against ISIS on Syrian and Iraqi soil. One justification provided for the US intervention is that it has been authorised by the resolution.

This justification is however contestable. While the Resolution does use language like that used in Chapter VII Resolutions, it makes no mention of Chapter VII in the document. If a Resolution is not constituted under Chapter VII, the general prohibition on the use of force, as enshrined under Article 2 of the Charter shall still apply. Resolution 2249, thus cannot operate in a manner to authorize military intervention, as it is bound by the restrictions laid down in Article 2.

A further issue with relying on Resolution 2249 as an authorization is that even if it were to be accepted as a legal justification, it would only apply while ISIS retains control over substantial portions of Syria. This is because resolution 2249 explicitly calls on states “to eradicate safe havens they (ISIS) have established in Iraq and Syria”. Currently, Assad, backed by Russia and Iran, is on his way to a resounding victory over both ISIS and the U.S. backed rebel forces. It appears that the days of a strong ISIS presence in Syria is almost over. Once Assad does regain control over the remaining ISIS held regions, the United States would lose any justification for further presence in Syria.

Thus, the question remains – In the absence of such authorization from the Security Council, does the U.S.- led coalition have a legal basis for military action in Syria?

In 2014, Iraq requested the U.S. to lead the fight against ISIS and provided express consent for a U.S. led intervention in Iraq. In a letter addressed to the United Nations, Iraq emphasized that: “with due regard for complete national sovereignty and the Constitution, we have requested the United States of America to lead international efforts to strike ISIS sites and military strongholds, with our express consent.” The U.S. airstrikes thus begun against ISIS in Iraq based on the legal justification of ‘Intervention upon invitation’.

There was however no invitation nor express consent from the Syrian government for the U.S. led air strikes. The justification rather, stems from an invocation of Article 51 of the U.N. Charter, by claiming that the U.S. led coalition was exercising collective self-defense against ISIS.

This justification is problematic, as the ‘unwilling or unable’ doctrine has not been widely accepted except by the U.S. and its allies, and is quite contentious. The ICJ has consistently held that Article 51 of the UN Charter limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed attacks are in any way imputable to the state whose territorial sovereignty is being violated. This was the Court’s position in Nicaragua, which was thereafter reaffirmed in both the Palestinian Wall Advisory Opinion and DRC v. Congo.

To analyze this claim, the first test would be to consider the requirements for invoking self-defense against a non-state actor. First, it would have to be shown that the state in which the armed force is operating (Syria) is unwilling or unable to prevent the actor (ISIS) from attacking other states. Thus, self-defense was permissible as Syria was unable to prevent ISIS from attacking other states (such as the U.S.). This defense was strengthened by the fact that Syria had at that point of time had large portions of territory controlled by ISIS forces.

However, this justification stands on shaky footing. It would be a long stretch to hold that the inability of the Syrian regime to counter ISIS on its soil has allowed it to attack the U.S., especially since ISIS had maintained a large presence in Iraq, along with significant insurgent cells operating in Algeria, Pakistan, Tunisia, the Caucasus, the Philippines and Saudi Arabia.

Even if we are to accept this justification, it would soon become problematic for the U.S., as with the looming defeat of ISIS in Syria, the U.S. would have to end its intervention. Once Assad has defeated ISIS, the only thing in his way would be the rebel forces, and the U.S. would have no justification for actively backing them.

Another justification for the intervention is the claim that the U.S. recognizes the National Coalition of Syrian Revolutionary and Opposition Forces (the rebels) as the sole legitimate representative of the Syrian people, and that it has ‘given consent’ to the U.S. to help in overthrowing the erstwhile Assad regime. This stance is especially problematic, as consent can only be given by the legitimate government of a State. The National Coalition lacks cohesiveness and more importantly, sufficient territorial control, and thus any recognition of them is a mere political act.

A majority of the U.N. member states still recognize the Assad regime, and continue to share diplomatic relations with it. Thus, the legal recognition of the regime as the legitimate government of Syria is still intact. Bearing this in mind, any act of forcible intervention in Syria to aid the opposition against the Assad regime would be in direct violation of the principle of non-intervention, as recognized by the ICJ in Nicaragua. Therein, the Court had held that “the principle of non-intervention involves the right of every sovereign state to conduct its affairs without outside intervention”.

The final legal justification provided for the U.S. intervention is the prevention of use of chemical weapons. The use of chemical weapons constitutes a violation of customary international law. It should be noted that although Syria is not a party to the 1993 Chemical Weapons Convention, it is bound by the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The U.S. reliance on this justification can be seen in the draft submitted to Congress by the Obama Administration regarding authorization for the use of U.S. Armed force in Syria. The preamble of the draft reads:

The objective of the United States’ use of military force in connection with this authorization should be to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction

It has been further asserted that the use of force in such a case is justified as the prohibition on the use of chemical weapons is a jus cogens norm. The problem with this however is that using force to enforce international obligations would amount to a forcible reprisal, which is also widely accepted as prohibited under international law.

In conclusion, when the U.S. led intervention began in 2014, it was justified on flimsy grounds. If these justifications are to be assessed in the present day, there can be no legal basis for continuing the U.S. intervention in Syria. While the Syrian war is still in flux, the United States must seriously consider withdrawing from Syria – even if it would involve making tough choices about a regime that it does not recognize. The challenge now is to recognize the continued violation of international law and remedy it while the opportunity still exists.

About the Author: Yash Karunakaran is a student and researcher at the National Academy of Legal Studies and Research, India. He often writes on international law and foreign affairs and is a guest contributor for the Berkeley Journal of Internal Law’s Blog. He can be contacted via email.