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.
- 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…