14 Oct A Syrian IAC?
Like Gabor Rona, I, too, found Ryan Goodman’s post yesterday at Just Security intriguing. Further to our ongoing discussions here (e.g.) and there (e.g.) about the classification of armed conflicts, Ryan’s claim is that in light of three recent events (noted below), the armed conflict in which the United States is engaged in Syria (a conflict I think most have understood as a non-international armed conflict (NIAC) between the United States and certain non-state groups (including ISIL and Al Qaeda and associated forces)) is now international in nature – a conflict between (among others) the United States and Syria. He further argues that the ability to now classify the fighting as an international armed conflict (IAC) is a good thing for two main reasons: (1) the IAC designation triggers an obligation among all states (under the Geneva Conventions) to try or extradite those suspected of war crimes in that conflict, with the effect, he argues, of ratcheting up the diplomatic pressure on Syrian officials; and (2) it is possible for the United States (and presumably others) to reap the benefits that come with the legal classification “IAC” without also absorbing the burdens associated with (I take him to mean) the legally meaningless but politically weighty description, “war.” I disagree with Ryan’s analysis that the conflict is, for the reasons he gives, now an IAC. More, I tend to see the relative political and legal consequences of a U.S. recognition of such a conflict as having exactly the opposite effect he anticipates. Here’s my thinking.
The evidence Ryan advances for the existence of an IAC between the United States and Syria is threefold: (1) that “the U.S. military has enforced what many consider essentially amounts to no-fly zones” in Syria; (2) that the United States has “militarily supported Turkey’s ground invasion” of Syria; and (3) that the United States “appears to have directly bombed Syrian military forces.” But as far as I can tell, each of these events is ambiguous at best. The article to which Ryan links for the proposition that the U.S. “has enforced” a no-fly zone features the U.S. military categorically denying the existence of any no-fly zone, and likewise contains no indication that the U.S. military has (in the course of defending its own forces’ activities against other actors in the asserted ‘no-fly’ areas of Syria) fired on any Syrian aircraft or other Syrian assets. The U.S. has, to be sure, asserted its right to defend its forces in the region from Syrian attack, and has in particular highlighted a geographic area where U.S. forces are operating actively as an area in which it will assert this right of self-defense if attacked by Syria, but this sounds very much like the claim the United States has been making about protecting its troops in Syria all along. Likewise, the claim that the United States has “militarily supported” Turkish operations in Syria is true as far as it goes; The Times has reported Turkish tanks rolled into Syria “under cover” of U.S. aircraft. But the Turkish operation was, like all stated U.S. operations in Syria, aimed (in different ways) at various non-state actors in theater. And while Syria expressly objected to Turkey’s operation, I have found no mention of Syria’s objection to the U.S. role in the operation. In all events, there is no indication that either Turkey or U.S. forces engaged in hostilities against Syrian forces in those operations. As for the U.S. strike on Syrian forces, the United States formally expressed regret for the “the unintentional loss of life of Syrian forces fighting ISIL,” claiming that it had thought the position had been occupied by ISIL forces, at which coalition forces were aiming. While that incident – alone among the three examples –involves the actual use of armed force by one state against another, it is entirely unclear whether an “unintentional” use of force should be understood to give rise to the recognition of an IAC, and at least some evidence that it should not (for instance, Pictet’s characterization of the requisite force as the result of “[a]ny difference arising between two States…” – the action here being the apparent result of inadvertence, not ‘difference’; or, for instance, the word “conflict”).
Now all of the foregoing of course ignores the effect of the ICRC’s putative position, subject to much discussion and debate already (relevant post and links to other posts here), that “[a]ny unconsented-to military operations by one State in the territory of another State should be interpreted as an armed interference in the latter’s sphere of sovereignty,” and thus giving rise to an IAC. If this is right, and if Syria can be understood not to have consented to U.S. operations against ISIL to date, then arguably the United States and Syria have been in an IAC from the very beginning. Without fully engaging the merits of the debate over the ICRC’s putative position, I might note that what ICRC says about such unconsented-to operations is at most that they “may be an international armed conflict” – not that they invariably are. In any event, that is not the argument I take Ryan to be making about the existence of an IAC here.
So this brings us to the normative case, i.e., that even if current evidence of an IAC is ambiguous at best, we should favor the characterization because while an announcement by the U.S. president (as I take Ryan to recommend) that there is a Syrian IAC carries marginal political consequences, it has significant legal advantages, most especially in enhancing the potential for criminal accountability (and therefore upping the near-term pressure on Syrian officials). All apart from my skepticism about the potential benefits in criminal accountability (about which I’ve written previously), I think it is clear that what a state says about the existence of an IAC carries essentially no weight in determining whether, as a matter of law, such a conflict exists. In other words, a presidential statement changes the legal status of the conflict not at all. On the other hand, the political stakes of such a statement are potentially enormous. This may perhaps be visible domestically; although I share Ryan’s skepticism about the public’s general awareness of the legal distinction between an IAC and a NIAC), any publicized presidential discussion of the nature of the conflict is sure to draw at least some attention (where there is often little) to the fact that there’s a war (of one kind or another) on. Far more important, though, are the potential international political consequences, by which I mean the risk that, at a minimum, Syria and Russia would view such a statement as provocatively signaling a U.S. intention to embark upon a new and different course of hostilities – a risk that attaches among sophisticated states like these whether the President uses the word “conflict” or “war.” It is possible, I suppose, that some Syrian diplomats may find the more certain prospect of eventual war crimes liability a relevant incentive. But in a conflict in which the Syrian government has proven impervious to years of international approbation, or to existing threats of criminal liability (in foreign courts at the least), I fear this additional source of liability will at best have marginal effect. Worse, it could well provide justification to some in the Syrian government to dig in even further.
I think the involvement of international criminal law is unlikely to have any deterrent effect. If anything, being captured by some war crimes tribunal, the ICC, or even some European Country is probably a fall back position for most Syrian regime elites. If they lost the war, a quick death for them and their families was the best they could probably hope for. For Assad and a few others, perhaps asylum in Russia or something is an option, but probably not anymore. Absent some sort of war crimes trial in the United States, and I don’t know if that’s possible, Assad and his top cronies would enjoy comfortable living conditions during their trial, which would probably last several years, they’d be convicted under some innovative legal theories designed to generate new precedents. They would then be sentenced to 10-15 years in a rather comfortable European Prison of some kind after which point they would be released. After staying in power, that’s probably Assad’s best option.
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