23 Jun The Downing of the Syrian Fighter Jet and Collective Self-Defence
[Kinga Tibori-Szabó is the author of the monograph Anticipatory Action in Self-Defence, which won the 2012 Francis Lieber Prize. She currently works at the Kosovo Specialist Chambers. The views expressed herein are those of the author and do not necessarily reflect the views of the employing organization.]
On 18 June 2017, a US Navy Super Hornet shot down an SU-22 fighter jet of the Syrian government south of Tabqah, in Syria. The US-led anti-ISIS Coalition’s statement indicated that the Syrian fighter jet was shot down after it dropped bombs near Syrian Democratic Forces (SDF) positions in the area. The Coalition statement averred that the action was taken
“in accordance with rules of engagement and in collective self-defense of Coalition partnered forces”.
Let’s analyse that statement. The action seems to have been a standard exercise of unit self-defence, a tactical level application of national or collective self-defence. It allows commanders to defend their unit, other units of their armed forces as well as other specified units (friendly forces) against hostile acts or hostile intent (see annex D of the San Remo Rules of Engagement (ROE) Handbook). But as aptly discussed in a post on Opinio Juris, unit self-defence should be viewed as a ROE concept that has underlying legal consequences but is not a legal term in and of itself. So the fact that the downing of the Syrian aircraft was in accordance with ROE does not answer the question of its legal basis in jus ad bellum. That brings us to the second part of the statement, the reference to collective self-defence.
According to the statement, the Coalition acted in collective self-defence to protect the SDF against an attack by the Syrian regime without itself seeking to fight that regime.
First, a few points need to be made regarding the reference to collective self-defence to underline that the Coalition does not seek to fight the Syrian regime.
- The jus ad bellum basis of Coalition actions on Syrian territory has attracted criticism because of reliance on a controversial interpretation of collective self-defence. In a nutshell, the request of Iraq for the assistance of the international community to fight ISIS was interpreted as a legal basis for the exercise of collective self-defence not only on the territory of Iraq, but also on the territory of Syria (see opinions on this here, here and here)
- Be that as it may, the Coalition has repeatedly emphasized and the quoted statement expressly states that “[t]he Coalition does not seek to fight [the] Syrian regime”. This cautious approach was somewhat overshadowed by the evident US support for ‘vetted Syrian opposition forces’, but until recently, the US and its Coalition partners had avoided direct confrontations with the Syrian regime. However, the US strikes against the Syrian airbase in early April amounted to use of force against the Syrian regime and have initiated an international armed conflict between the two states in the sense of Common Article 2. The downing of an Iranian UAV in early June and of a second one two days after the shooting of the Syrian aircraft made it clear that these confrontations are no longer isolated incidents, but clashes in the context of an international armed conflict between Syria and the leader of the Coalition (US).
- Nonetheless, the existence of an armed conflict between the US and Syria is a separate issue from the question whether (collective) self-defence can be invoked by the Coalition as a justification for some of the clashes within the context of that armed conflict. Simply put, the invocation of collective self-defence in the Coalition statement does not protect the US from the obvious: that it is now in armed conflict with the Syrian regime and potentially with its allies.
Second, the exercise of collective self-defence requires, in addition to the core conditions of self-defence, at least a request for assistance from a state. This is unsurprising, as the right of self-defence enshrined in Article 51 of the UN Charter pertains to states rather than armed groups. While it is widely accepted that an armed attack may be carried out by an armed group and self-defence may be exercised against such a group, the possibility of armed groups having the right to invoke self-defence is not contemplated. Nonetheless, it seems that the Coalition invoked collective self-defence to protect a ‘friendly’ armed group notwithstanding the fact that such a group does not have the right to invoke self-defence in the first place and request assistance on that basis. The question thus arises whether there is room for an expansive view on the right of self-defence permitting a state to invoke ‘collective’ self-defence on behalf of an armed group and assist the group on that basis. The wording of Article 51 of the UN Charter leads to a prima facie negative answer. Nonetheless, the proliferation of conflicts involving armed groups and the current reality of states defending such groups without themselves being the target of the same attack may bring this question to the fore and further complicate the interpretation and application of self-defence in relation to non-state actors.
Would want to know whether Syria can be considered as a state under International Law because some of the attributes of statehood like defined territory and government seem to be absent.
The questions of failed states and statehood are separate. A failed state, despite its incapacity
to perform State functions, remains a state entitled to sovereignty and territorial integrity, with international law applying accordingly. Additionally, in my opinion, Syria is not a failed state, even if some of the relevant factors are present. The incumbent Syrian government is still performing a multitude of state functions, including control over its military and representation at the international level. In any case, these are very interesting questions.
The reason I asked this question is because the territory controlled by the Assad government is negligible; this situation has been ongoing since 2014. Multiple state and non-state actors are in control of large swathes of land. The Kurds, I believe are also going to declare independence sometime in September. And the IS made the border between Iraq and Syria redundant.
Self-defense is a justification, that is legally-warranted exception to a general prohibition. As such, it is a way out of illegality. The rules of engagement are authorization to use force in circumstances other than self-defense, issued by the military. ROE do not influence the right to self-defense, which is regulated by a different set of rules. During an attack or when an attack is imminent, ROE do not apply. They apply in case of hostile intent or a hostile act, which are situations other than attack.
In a non-international armed conflict, such as the struggle in Syria, non-State actors are not legitimate to participate in combat. Consequently, they are acting unlawfully. Self-defense can be invoked only against an unlawful aggression or imminent threat of aggression. In the case of Syria, according to international law, State actors are acting lawfully to put a rebellion to an end. Non-State actors cannot invoke self-defense, in the same manner I cannot invoke a self-defense against a policeman who is arresting me because I just committed a crime.