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Home Articles posted by Raphael Van Steenberghe

From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coalition

Published on October 23, 2015        Author: 

Since September 2014, the US and some Arab States have conducted air strikes against Islamic State (IS) in Syria. They have recently been joined by some Western States, including the UK, Canada, Australia and France. The justification given by those States and the US for their military operations in Syria is based on the right of self-defense, enshrined in Article 51 of the UN Charter. Such justification has been contested by some scholars. Yet, this does not mean those air strikes should be considered unlawful. It is argued that they could be justified by the “passive consent” of Syria.

  1. The end of passive consent

Contrary to their reaction to air strikes conducted by States such as Turkey, Syrian authorities did not formally oppose air strikes by the US-led coalition after they occurred – although some limited objections have been formulated in the media. The Assad regime even seems to have welcomed this international effort to fight against IS and expressed its readiness to cooperate with such effort. As a result, although consent has never been expressly given by the Assad regime to the US-led coalition’s airstrikes, the absence of protest by this regime could be interpreted as “passive consent” thereto. Such interpretation could find some support in the DRC v. Uganda case (para. 46), in which the ICJ inferred the DRC’s consent to the presence of Uganda troops on its soil from the absence of any objection to such presence.

Yet, regardless whether “passive consent” is a valid legal basis for justifying the airstrikes conducted by the US-led coalition against IS in Syria, such legal basis seems now to be in great trouble. Read the rest of this entry…

 

The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer

Published on February 12, 2015        Author: 

In a recent post on ‘The Airstrikes against Islamic State in Iraq’ (hereafter “the post”), Dapo Akande and Zachary Vermeer argue that the legal justifications given by the states intervening in Iraqseem to count against the existence of [a prohibition on intervening in civil wars] as part of contemporary international law”. The aim of this post is to question such a conclusion. It will deal with three main issues: the alleged generality of those legal justifications (1); their ability to reveal the opinio juris of the intervening states (2); and the situation in Iraq as a “civil war” in the sense of the 1975 resolution of the Institut de Droit International (IDI), which prohibits any intervention in civil wars (3).         

Generality of the legal justifications

Dapo Akande and Zachary Vermeer’s above-mentioned conclusion is based notably on the alleged “generality” of the legal justifications given by the intervening states in Iraq. After positing that Iraq is engaged in a civil war under the 1975 IDI resolution (an assumption I challenge below), they conclude that the “general” justifications offered for intervention imply that states consider that it is always legal under international law to intervene at the request of a government during a civil war. However, a closer look at the legal justifications offered, including those not mentioned in the post, reveals that, when justifying their intervention, all the states expressly referred to the objective of fighting against the Islamic State (ISIL) as the specific purpose of the consent given by the Iraqi authorities for their intervention. In other words, in the Iraqi case, the consent given by Iraq to intervene on its territory was generally considered only in relation to this specific purpose.

In the declaration of the senior US administration official quoted in the post, as in President Obama’s notification to Congress (also and only partially quoted), “[the] actions” that the United States had been invited to take at the request of the Iraqi government were clearly actions against ISIL. More precisely, in Obama’s words, they were the “necessary actions against these terrorists in Iraq and Syria”. With regard to the declaration of France, in particular the speech by the French Minister for Defence before the French Senate, the French Minister clearly stated (after the passage reproduced in the post): “I remind you: we are responding to the request for support of the Iraqi authorities to weaken the terrorist organization Daesh.” (translated from French, emphasis added). Moreover, on 19 September 2014, the French President expressly stated in an official declaration: “Yesterday . . . I announced my decision to respond to the request of the Iraqi authorities and to grant them the support necessary to fight against terrorism.” (translated from French, emphasis added). Read the rest of this entry…

 
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