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State Responsibility for Third Country Deployed / Embedded Military Personnel Engaged in Armed Conflict

Published on September 10, 2015        Author: 

Editor’s Notes: This post was written before the announcements earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August, and, that the Australian government plans to conduct airstrikes against Islamic State targets in Syria.

Recent reports indicate that both the UK and Australian governments have agreed to some of their military personnel being involved in kinetic operations against ISIS/Daesh targets inside Syria. This is despite, in the case of the UK, a Parliamentary ‘no-go’ in the form of a rejected 2013 motion on joining proposed US strikes against Assad regime forces in the wake of the use of chemical weapons. In Australia’s case, this authorisation appears to have come before a settled Australian view on the legality of kinetic operations against Daesh inside Syria (as opposed to inside Iraq). The report on Royal Australian Air Force UAV operators deploying to conduct operations with their host US unit was dated 14 August; but reports as late as 23 August, and even 27 August, seem to indicate that the Australian Government has yet to conclude its own legal analysis on engaging in combat operations inside Syria, subsequent to a US invitation:

‘Foreign Minister Julie Bishop insists Australia has backing under international law for extending RAAF air strikes into Syria because the area occupied by Islamic State is a lawless ungoverned space. “The legal basis for the air strikes in Syria has been laid out by the United States some time ago in a letter to the United Nations.”

“The Coalition has been invited into Iraq at the invitation of the Iraqi government. Under the principle of collective self-defence of Iraq and its people, the Coalition has extended self-defence into Syria because the border between Syria and Iraq is no longer governed; neither the Assad regime nor the Abadi regime in Iraq has control over that border,” Ms Bishop said on Sunday.

Ms Bishop said the Abbott government was drafting its own legal advice but it appeared the US, Canada and Middle Eastern countries were satisfied the Syrian air strikes were part of the “collective self-defence of Iraq and the Iraqi people”.’

In a fascinating aside, the Australian Prime Minister was recently quoted as saying “when they [IS] don’t respect the border [between Syria and Iraq], why should we?” Good question; I think it has something to do with the rule of law and being a law abiding international citizen, and the answer perhaps saying more about us than about them. But I digress. These two reports indicate an interesting issue: How does law deal with the assignment or loan of military personnel to another State (sometimes called Third Country Deployments – TCDs), when that assignment is accompanied by what appears to be an acceptance that these TCD personnel may engage in armed conflict inside yet a different State, but in circumstances where the sending or parent State is yet to come to the necessary legal conclusions to support that authorisation? Read the rest of this entry…