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Is the Expanding U.S. Military Presence in Syria Legal?

In July, the White House [1] and Pentagon requested [2] authority from Congress to build further “temporary intermediate staging facilities” inside Syria in order to combat ISIS more effectively. This request, it must be noted, comes in the wake of devastating ISIS defeats in Syria, mostly by the Syrian Arab Army (SAA) and its allied forces.

Shortly afterward, the Turkish state-owned Anadolu news agency revealed previously unknown details and locations of ten U.S. bases [3] and outposts in northern Syria, several of them with airfields. These are in addition to at least two further U.S. outposts already identified in southern Syria, on the Iraqi border.

When asked about these military bases, a CENTCOM (U.S. Central Command) spokesman told me: “We don’t have bases in Syria. We have soldiers throughout Syria providing training and assist to the SDF (the mainly Kurdish Syrian Democratic Forces in the north of the country).” How many soldiers? “Roughly 1,200 troops,” says CENTCOM.

Yet when questioned about the international law grounds for this U.S. military presence inside Syria, CENTCOM didn’t have a response on hand. They referred me to the Office of the Secretary of Defense whose spokesman obstinately cited U.S. domestic law—an issue quite irrelevant to Syrians. He, in turn, referred me to the White House and State Department on the international-law angle. The State Department sent me back to the Department of Defense, the White House pointed me in the direction of the National Security Council (NSC), and the Department of Justice’s Office of Legal Counsel blankly ignored my repeated requests.

It isn’t hard to conclude that official Washington simply doesn’t want to answer the “international law” question on Syria. To be fair, in December 2016, the Obama administration offered up an assessment [4] on the legalities of the use of force in Syria, but perhaps subsequent ground developments—the SAA and its allies defeating ISIS and Al Qaeda left, right, and center—have tightened some lips in the nation’s capital.

[5]

U.S. military bases and outposts in Syria identified by media and independent sources as of July 26. (Commissioned by the author from M. Fahd and Z. Adra.)

The map of U.S. bases in Syria is confusing. For starters, it reveals that many of the US outposts—or “staging facilities”—are nowhere near ISIS-controlled areas. This has generated some legitimate suspicion about U.S. motives in Syria, especially since American forces have begun to attack Syrian military targets with more frequency. This summer saw U.S. strikes [6] against Syrian allied forces, drones, and a fighter jet all in the space of a few weeks. And most memorably, in September 2016, Coalition fighters killed over 100 SAA troops [7] fighting ISIS in Deir Ezzor, paving the way for a brief ISIS takeover of strategic points in the oil-rich province.

It appears that U.S. intentions may go beyond [8] the stated objective of fighting terrorism in Syria—and that Washington’s goals are also territorial and political and seek to retain post-conflict zones of influence [9] within the country: in the south, north, and along the Syrian-Iraqi border.

Former Obama White House and NSC senior legal official Brian Egan believes the coming challenge for U.S. policymakers—in terms of international law—will be to justify clashes with Syrian forces and their allies.

“I think the harder international law question to defend is with respect to use of force against the [Syrian President Bashar] al-Assad regime,” warns Egan. “For example, the U.S. strike in response to the [alleged] chemical weapons attack. There’s no self-defense justification, there’s no UN Security Council resolution. It’s an open question what the U.S. depends on in terms of international law.”

“Theories that might be applicable against terrorist groups like ISIS don’t appear to apply for U.S. military ops against Syrian forces. The more that U.S. forces are in-theater in Syria, the greater the chance of conflict between the U.S. and Syrian forces, which makes it essential that [this administration] explains its justification for potential operations in Syria,” emphasizes Egan.

But it’s not only Syrian forces and military targets [10] that have come under American fire. In a stream of letters to the UN Security Council this year, the Syrian government asserts U.S. air strikes have also “systematically” destroyed vital infrastructure and economic assets throughout the country for months, and complains that the attacks are “being carried out outside the framework of international legality.” The Syrians claim that these infrastructure targets include the Ghalban oil collection branch station, Umar oilfield, wells and facilities, electrical transformer stations, Tanak oil field and facilities, Izbah oil field and installations—all in Deir Ezzor governorate—a gas plant and bridges and structures of the Balikh Canal in Raqqa, buildings and facilities belonging to the General Establishment of Geology and Mineral Resources in Homs, Furat and Baath Dam facilities, the Euphrates Dam, the Tishrin Dam and their reservoirs, irrigation and power generation facilities, and many other vital sites across the country.

With U.S. legal arguments supporting military presence in Syria unravelling, the Pentagon’s untenable position has become noticeable, even within its own ranks.

“Here’s the conundrum,” explained [11] U.S. Special Operations Command Chief Army General Raymond Thomas to an Aspen gathering last week, in response to a question about whether U.S. forces will stay in Syria, post-ISIS: “We are operating in the sovereign country of Syria. The Russians, their stalwarts, their back-stoppers, have already uninvited the Turks from Syria. We’re a bad day away from the Russians saying, ‘Why are you still in Syria, U.S.?’”

The Russians, Iranians, Hezbollah, and other allied Syrian forces are in Syria legally, at the invitation of the UN-recognized state authority. The United States and its coalition partners are not.

At the moment, the latter are trying hard to ignore that elephant in the room. But as ISIS collapses, the question “why are you still here?” is going to rise in volume.

When the U.S.-led coalition first launched overt military operations inside Syria in September 2014, various western governments [12] cited both the recently-passed UNSC Resolution 2249 and Article 51 (Iraq’s invitation for “collective self-defense”) as their legal justification for doing so.

Neither of these justifications provided legal grounds for use of force in Syria, however. There are basically only three clear-cut international law justifications for use of force: a UN Security Council (UNSC) resolution providing Chapter 7 [13] authority, self-defense against an act of aggression by a territorial state, and an invitation by the legitimate authority of a sovereign state for foreign troops to act within its borders—“consent of a territorial state.”

While UNSC Res. 2249 called upon member states to “take all necessary measures” against ISIS in Syria and Iraq, it explicitly stated that any such measures must be “in compliance with international law, in particular with the UN Charter”—which requires consent of a territorial state, in this case, the Syrian government.

And while Iraq did invite the Coalition to militarily engage ISIS within its territory, its “collective self-defense” argument does not justify the use of force inside Syrian territory—because Syria did not attack Iraq.

To make up for the gaping holes in its international-law arguments, the U.S.-led Coalition performed some legal acrobatics. The “unwilling and unable” theory posits that the Coalition could engage militarily in Syria because the legitimate government of Syria was either unable or unwilling (or both) to fight ISIS.

An onslaught of media articles and carefully-framed narratives were employed to set the scene for this theory. Recall, if you will, the slew of articles claiming [14] that ISIS controlled around 50 percent [15] of Syria—areas which were outside of Syrian state control—all meant to guide us to the conclusion that Syria was “unable” to fight ISIS. Or the narratives that insisted, until ground evidence proved otherwise, that the Syrian government aided ISIS, that it never fought the terror group, that it only targeted “moderate rebels”—all intended to persuade us that Syria was “unwilling” to target ISIS.

In fact, the Syrian Arab Army (SAA) and its allies have fought ISIS throughout this conflict, but were often distracted by more urgent battles against U.S., Turkish, British, French, Saudi, UAE and Qatari-backed Islamist militants in the western corridor of the country, where Syria’s main population and infrastructure hubs are located. ISIS-controlled territories, it should be noted, were mostly in the largely barren, sparsely populated and desert regions in the north-east and east of Syria.

The NATO-Gulf Cooperation Council strategy appears to ping-pong Syrian troops from east to west, north to south, wearing them down, cleverly diverting them from any battle in which they were making gains. And it was working, until the Russians stepped into the fray in September 2015 and sunk the Coalition’s “unwilling and unable” theory.

As Major Patrick Walsh, associate professor in the International and Operational Law Department at the US Army’s Judge Advocate General’s Legal Center and School in Virginia, wrote [16] that October:

“The United States and others who are acting in collective defense of Iraq and Turkey are in a precarious position. The international community is calling on Russia to stop attacking rebel groups and start attacking ISIS. But if Russia does, and if the Assad government commits to preventing ISIS from attacking Syria’s neighbors and delivers on that commitment, then the unwilling or unable theory for intervention in Syria would no longer apply. Nations would be unable to legally intervene inside Syria against ISIS without the Assad government’s consent.”

The UK’s leading security and defense analyst firm IHT Markit observed in an April 2017 report [17] that during the time period in which ISIS suffered its most crippling defeats, Syrian allied forces fought the terror group two and a half times as often as U.S.-backed ones. With the Russian air force providing Syrian allied troops with game-changing air cover, the battle against ISIS and other terror groups began to turn decisively in Syria’s favor. And, with that, out went even the “theoretical” justification for U.S. military intervention in Syria.

As ISIS and Al Qaeda are beaten back in Syria, the American conversation about what comes next is missing a most critical point. In terms of international law, Washington has gone rogue in Syria. Will the world take notice?

Sharmine Narwani is a commentator and analyst of Mideast geopolitics, based in Beirut.

22 Comments (Open | Close)

22 Comments To "Is the Expanding U.S. Military Presence in Syria Legal?"

#1 Comment By Charles Cosimano On August 4, 2017 @ 1:47 am

“No one ever got a ticket for violating International Law.” Mike Royko

#2 Comment By EliteCommInc. On August 4, 2017 @ 6:54 am

“As ISIS and Al Qaeda are beaten back in Syria, the American conversation about what comes next is missing a most critical point.”

Here’s the critical point. As i understand it the US is no longer engaged in supporting efforts at regime change. We intend to respect the sovereignty of Syria and what happens next is essentially none of our business based on the realities on the ground.

Any military command structure encouraged or engaged in violating the sovereignty of Syria will face the wrath of the executive branch.

#3 Comment By EliteCommInc. On August 4, 2017 @ 7:00 am

And by the way,

Washington has been rogue for twenty years.

#4 Comment By Michael Kenny On August 4, 2017 @ 10:24 am

Does it matter? Putin’s annexation of Crimea is illegal. Putin’s support of supposed “rebels” in the Donetsk-Lugansk “sausage” is illegal, most notably his threat to make war on Ukraine if it seeks to re-assert control over its sovereign territory. Putin is propping up Assad in Syria in the name of the very same principles he is violating in Ukraine. He cannot claim the benefit of rules of international law which he himself fails to respect and by allowing Putin to become his protector, Assad has made himself and the Syrian state complicit in Putin’s illegal activities in Ukraine. To my mind, as a lawyer, that resolves the question.

#5 Comment By ken On August 4, 2017 @ 10:52 am

when world citizens were asked a series of word association responses on the subject of the USA,the expression “international law” did not come up once EVER ….

#6 Comment By sid_finster On August 4, 2017 @ 11:02 am

What kind of question is that?

*Of course* our war on Syria is not legal, and no amount of spin can turn nonsense into Egyptian cotton, but discussing things like law, ethics and morality with a sociopath is a waste of time, both for you and the sociopath.

Better to discuss reward and punishment. Those are things that sociopaths understand.

#7 Comment By Mark On August 4, 2017 @ 12:48 pm

Great article. Of course, anyone who has followed Obama’s aggression against Syria (or Libya), or Bush’s aggression against Iraq, realizes that the US has been a rogue state forever. At least Trump has ended Obama’s treasonous support for the Islamists, seems to be focused on ISIS, and obviously wants to work with Russia to end the war. That won’t occur until all rebel factions either surrender/take amnesty, or are wiped out.

The complete takeover of Idlib by HTS (al-Nusra) may help that along. Already we hear the warnings of doom from US officials. Under Obama those officials would be appealing to Obama for more support for the jihadis they support, and they might have received it. Under Trump, it’s sayonara for the jihadis, al-Nusra, Ahrar al-Sham, it doesn’t nmatter.

#8 Comment By ISIS ‘n Out On August 4, 2017 @ 2:59 pm

Every day that Trump lets the generals and the neocons keep US troops in the Middle East is another day closer to the collapse and failure of his presidency.

He should finish cleanup operations against ISIS and then pull us out. Any further commitment there is insane.

#9 Comment By The Wet One On August 4, 2017 @ 3:12 pm

Regarding the titular question, in case the author hasn’t noticed, no one has cared about the answer to this question for quite a long time.

I’m reasonably sure that no one is going to care about it anytime soon either.

Cheers!

#10 Comment By Jared Kushner On August 4, 2017 @ 5:44 pm

Re. “It appears that U.S. intentions may go beyond the stated objective of fighting terrorism in Syria—and that Washington’s goals are also territorial and political ”

Uh, like securing Israel’s “territorial & political goals,” such as its nemesis Syria’s Golan Heights?

#11 Comment By Henry V On August 4, 2017 @ 6:12 pm

You’re worried about International law that the US might’ve violated? I’m not enthusiastic about getting any more involved militarily in the Middle East but that’s just a flabbergasting remark.

#12 Comment By Jett Rucker On August 4, 2017 @ 9:08 pm

The US is Israel’s giant proxy in the Middle East. Its job – so well performed in Iraq – is to keep countries not enjoying Israel’s favor unstable and distracted from what might otherwise be their interests.The same thing went down vis-a-vis Germany during 1941-1945 AND the subsequent occupation, which also has not ended in the 72 years since.v

#13 Comment By Cornel Lencar On August 4, 2017 @ 11:27 pm

We’ll see if and when an UNSC Resolution asking the coalition, explicitly U.S. to leave Syria…

#14 Comment By Adriana I Pena On August 5, 2017 @ 12:55 am

Since when has the US cared for legality when it came to regime change? They want it, they get it. And they are called patriots and praised.

#15 Comment By polistra On August 5, 2017 @ 5:20 am

By traditional standards of “just wars”, DC went rogue in 1946 and continues going roguer and roguer every year.

#16 Comment By SteveK9 On August 5, 2017 @ 12:16 pm

After the Syrian Arab Army defeats ISIS in Deir Ezzor and peace is established in the ‘rebel-held’ areas (they will eventually put down arms and those who won’t will be killed), China is going to send in battalions of engineers and construction crews to rebuild Syria. The US may stick around and try to establish a mini-Kurdistan in the North, but that will be opposed by Syria, Turkey, Iraq, and Iran. Eventually we will simply leave … I hope.

#17 Comment By Max On August 5, 2017 @ 2:27 pm

Never thought I’d be agreeing with TheAmericanConservative.com I always asked myself “What, precisely, is it that they ‘conserve’?”

#18 Comment By Lee On August 6, 2017 @ 1:02 am

So here I sit reading an Op-Ed about what American’s should be regarding the Middle East, by a frequent writer for Al Akhbar English and Al Jazair.

I mean really WTF? Screw TAC and the goat it road into town on!

#19 Comment By Zakee On August 6, 2017 @ 3:05 am

The only people outside the US who have not noticed that the US is a country of criminals are those lying in a hospital with a coma. The better question would be, regarding the latest in a very long list of criminal actions, will Americans take notice theirs is a criminal country? It seems 50% of Americans are too ignorant to do so (the ones stupid enough to believe the “war on terror” propaganda) and the other 50% is your typical corrupt American who doesn’t care how many crimes and murders the US commits as long as it pockets a buck.

#20 Comment By Hank On August 6, 2017 @ 11:56 am

How can unilateral violation of another nation’s sovereignty be “legal”? What would USA “leaders” say if a foreign nation just decided to start building military infrastructure on American soil without American approval? The biggest problem in the world is the USA’s double standards- they punish other nations for allegedly doing what they do on a normal everyday basis! Syria has NEVER asked the USA for help in fighting the “terrorists” in Syria because it knows full well which side the USA is REALLY on! Building military bases while violating a nation’s sovereignty is no different than raping someone!

#21 Comment By charlie On August 7, 2017 @ 10:49 am

The U.S. hasn’t any right to further develop war stations in Syria. Hasn’t this non-sense been seen in Iraq and Iran? Now we want to arm the rebels with a missile site?? Why? Set up for the world gov to be instilled? Arabia will love it.

#22 Comment By Karen Bartlett On September 25, 2017 @ 10:20 pm

The US military installations in Syria aren’t there for no reason. Neither are the attacks on the Syrian army and infrastructure, especially oil infrastructure. Neither is the convenient emotional appeal of Haley to the supposed monstrous actions of Pres. Assad “against his own people”. The US, imo, is preparing to move in and take the oil by force. Again, imo, the US doesn’t care about international law, as long as they can get away with violating it. If they have the support of the American public, obtained by propaganda such as that staged by Haley, they can “sell” the idea of the NECESSITY of going to war in Syria against the Syrian gov’t. And I bet that’s the plan. None of this siding with “moderate rebels” and histrionics about unproven allegations against Pres. Assad are an accident. And I’m an American. We’re not all “corrupt” by a long s