There are, as of January 2016, 12 states openly recognizing that they take military action of different kinds (mainly airstrikes, but also, in some cases, ground operations) in Syria. In the following subsections, I will try to identify if and to what extent consent could be used as a legal basis for all these military interventions. This is clearly the legal argument used by Russia and Iran in order to justify their important military operations in Syria. The theory of consent is nonetheless extremely difficult, if not impossible, to use regarding the operations of the US-led coalition, even if we try to stretch it to its outer limits, using the controversial argument of ‘passive consent’.
4.1. Express consent as the legal basis for intervention by Russia and Iran
It has often be reported that, parallel to the US-led coalition against ISIL in Syria, another coalition has been formed between Iraq, Russia, Iran, and Syria, not to mention some important non-state actors, such as the Lebanese Hezbollah which has now been helping the regime of Bashar Al-Assad for years.
Both Russia and Iran used consent as the legal basis for their intervention in Syria.
4.1.1. Russia and Iran relied on the theory of intervention by invitation
Iran was the first state to intervene in response to a request for help by the Syrian government. For a long time, this country officially denied the presence of its combat troops in Syria, maintaining that it provides just ‘military advice’ to Assad's forces in their fight against terrorist groups. However, several reports have mentioned that Iran sent an important expeditionary mission involving Islamic Revolutionary Guards Corps and several high ranked officials to Syria. According to some experts, Iran may have sent as many as 3,000 troops to Syria.
Taking into consideration this secretive attitude by Iran, it is obvious why this state sent no letter of justification for this military intervention to the UN Security Council. Progressively, nonetheless, and due also to the increasing number of losses among the Iranian soldiers in Syria,
Iran started to acknowledge its role, using as a legal justification the call for help launched by the Syrian government. Iranian President, H. Rohani, acknowledged the existence of a ‘coalition between Iran, Iraq, Syria and Russia’, and explained that Iranian ‘military advisers’ are present in Syria and Iraq on the invitation of the governments of these two states.
Russia, on the contrary, made no secret of its military intervention against ISIL in Syria from the outset and used very clearly the argument of invitation by the Syrian ‘legitimate government’ as a legal justification. The Russian military intervention in Syria started on 30 September 2015 with massive airstrikes while Russian support troops were deployed in some areas like the Russian naval base of Tartus or the Latakia airport. In a letter sent to the UN Security Council on 15 October 2016, Russia explained that:
in response to a request from the President of the Syrian Arab Republic, Bashar al-Assad, to provide military assistance in combating the terrorist group Islamic State in Iraq and the Levant (ISIL) and other terrorist groups operating in Syria, the Russian Federation began launching air and missile strikes against the assets of terrorist formations in the territory of the Syrian Arab Republic on 30 September 2015.
Syria welcomed the strikes, presenting the Russian intervention as perfectly legal and called for other countries to ‘honour international law’ by siding with Russia and Syria, and acting in cooperation with the government forces.
Since then, the Syrian government of Bashar al-Assad never ceased to express its approval and support for the Russian military intervention.
If it is thus undisputable that Russia acted under the regime of ‘military intervention by invitation’, two major legal issues arise and need to be discussed.
4.1.2. The validity of the invitation
The first legal issue concerns the validity of the invitation, and more precisely, the legitimacy and ‘representativeness’ of the author of the invitation, the government of Bashar al-Assad. Some scholars took the position that the regime of Bashar al-Assad has lost its legitimacy and popular acquiescence, and thus also its standing to consent to external intervention. According to M. Weller, for example:
A very large number of States have determined that the Assad government can no longer fully claim to represent the people of Syria. Instead, the opposition is the true representative of Syria. . . . Having been disowned by such a large segment of its population, and over such a long period, [the Assad government] can no longer lawfully invite foreign military force to intervene and fight on its behalf.
This argument, nonetheless, is not really convincing. Without entering into an examination of the democratic legitimacy of Bashar al-Assad (his government was re-elected in June 2014, although many dismissed this election that took place in the midst of a terrible civil war as a farce), one could notice that there are several elements indicating that the international community still considers the government of Bashar al-Assad as representing Syria.
It is true that several states deny the legitimacy of the Syrian Government and some among them recognized the ‘Syrian National Coalition’ (or the ‘Syrian Opposition Coalition’) as the ‘legitimate representative of the Syrian people’.
But, as Talmon showed, an illegitimate regime may still be a government in the eyes of international law.
In a specific case-study of Syria, Talmon also explained the difference between the ‘legal’ and ‘political’ act of recognition and concluded that the recognition of the ‘Syrian Opposition Coalition’ as ‘the legitimate representative of the Syrian people’ was ‘a purely political act’.
We could thus consider that this expression of political support for the ‘Syrian National Coalition’ by some states did not challenge the view of the international community that the government of Bashar al-Assad, regardless of its loss of legitimacy, was still representing Syria. Moreover, the lack of unity and cohesion of the opposition forces and the fluctuant character of the ‘Syrian National Coalition’ created a lot of reservations for many states, including those hostile to the regime of Bashar al-Assad, and can also explain why the overwhelming majority of states preferred to maintain the view that the regime in Damascus is still the Syrian government in the eyes of international law. As for effectiveness, the Bashar al-Assad government was able to exercise effective control over some important parts of Syria, including the capital, while ‘none of the other opposition groups including ISIL can be considered as a challenging authority as they are not exercising sufficient effective control over Syria’.
The ‘Mali precedent’ showed that the lack of effectiveness of the Malian authorities over more than half of the country, or indeed the political challenges facing these authorities, never questioned the validity of the invitation extended to France in January 2013 to intervene against terrorists threatening to capture the capital Bamako.
Turning to the practice of international organizations, we can notice that some organizations, such as the Arab League in November 2011,
or the Organization of Islamic Cooperation in August 2012,
suspended the Syria's membership over its failure to end government crackdown on protests. However, Syria is still present in other organizations and their delegates, accredited by the Damascus government, still represent this country. The most notable example is the UN where the Permanent Mission of the Syrian Arab Republic is particularly active, sending dozens of letters to the Secretary-General and the President of the UN Security Council in order to defend the regime's positions. The government in Damascus was also considered as capable to legally bind Syria by ratifying certain international treaties, most notably by acceding to the Chemical Weapons Convention on 14 October 2013, after the events (use of chemical weapons) in August 2013 and the adoption of the UN Security Council Resolution 2118 on 27 September 2013.
Last but not least, no state challenged, to my knowledge, the validity of the invitation to intervene. While several Western and Arab states criticized Russia for also attacking the ‘moderate Syrian opposition’, no state called into question the legality of the Russian airstrikes against ISIL on the basis of intervention by invitation.
4.1.3. Russian intervention: A challenge to the purpose-based approach?
The second important legal issue concerns the purpose of the Russian intervention and the question of the legality of intervention by invitation of a government in a civil war. In the case of the Russian intervention in Syria, as in the case of the US-led intervention in Iraq, some scholars took the position that this is a precedent in favour of the idea that there is no prohibition of intervention by invitation in a civil war.
However, both the criticisms addressed to Russia for the modalities of its intervention and Russia's responses to these criticisms seem to lead to a different conclusion. They seem to indicate that this is a case confirming the ‘Mali precedent’ and the idea that the legality of intervention does not result from a presumed carte blanche to intervene in a civil war, but is directly linked to its specific purposes and especially the ‘exception’ of the fight against terrorism.
Let us focus first on the reactions to Russian airstrikes in Syria. Several Western and Arab states, and some international organizations heavily criticized Russia for its military intervention in Syria. But in no case did an international actor criticize Russia for bombing ISIL or other terrorist groups in Syria. The criticism only concerned Russian airstrikes not directed against terrorist organizations, but against ‘moderate rebels’.
The Council of the European Union stated, for example, on 12 October 2015:
The recent Russian military attacks that go beyond Dae'sh and other UN-designated terrorist groups, as well as on the moderate opposition, are of deep concern, and must cease immediately . . . This military escalation risks prolonging the conflict, undermining a political process, aggravating the humanitarian situation and increasing radicalization.
At the UN level, some Arab and Western states were successful in adopting, on 2 November 2015, a non-binding resolution of the UN General Assembly's Third Committee which:
[s]trongly condemns all attacks against the Syrian moderate opposition and calls for their immediate cessation, given that such attacks benefit so-called ISIL (Daesh) and other terrorist groups, such as Al-Nusrah Front, and contribute to a further deterioration of the humanitarian situation.
More recently, the British Foreign Secretary, Phillip Hammond, strongly criticized Russia for exceeding its proclaimed mission in Syria: ‘The Russians say they want to destroy Daesh but they are not bombing Daesh: they are bombing the moderate opposition’, said Hammond, adding that ‘less than 30 per cent of Russian strikes are against Daesh targets’ and that this ‘undermines international efforts to end the Syrian civil war by bombing opponents of Islamic State in an attempt to bolster Bashar al-Assad’.
These statements did not seem to challenge the legality, as such, of the Russian strikes against the moderate opposition.
However, the language used clearly demonstrates that the international community is not ready to give a carte blanche to foreign states to intervene in civil wars under the cover of invitation by the government. While nobody challenged the legality of Russian airstrikes against ISIL and other terrorist groups, the perceived effort of Russia to ‘take sides’ with the Syrian government against the rebels met strong reactions and condemnations. This seems to confirm, rather than to challenge, the purpose-based approach of the legality of military intervention by invitation.
The analysis of the Russian reactions to these criticisms also seems to confirm this approach. Despite pretty clear indications that Russia was indeed helping substantially the Syrian government forces in their fight not only against terrorist groups, but also against Syrian rebels, Russia has maintained until now that it only intervenes against terrorists. Russian President Vladimir Putin insisted on several occasions that ‘[t]he country's only goal is to combat the international terrorists of ISIL'and other terrorist groups, such as the al-Nusrah Front.
Russia's Foreign Minister, Sergey Lavrov, argued that the objective of Russia's intervention is exactly the same as that of the US-led intervention in Syria – to fight terrorism.
From an opinio juris point of view, this is very important. In international law practice, there is sometimes a distortion between what states say and what they really do.
The declarations of Russia in relation to the objectives of its intervention in Syria seem to confirm the idea that, whatever the reality on the ground and the hidden intentions and actions are, states do not wish to assume a right to intervene in a purely internal conflict. From the beginning of the justifications provided for the operations (the Russian letter to the UN Security Council) until today (early February 2016), Russia has never claimed a general right to intervene in the civil war in Syria to ‘save’ the Syrian regime which called for help. Instead it provides the legal justification of intervening for a specific purpose – to help the Syrian government fight terrorist groups.
This immediately raises an important problem, as mentioned in the introduction, concerning the definition of terrorism and the organ capable of deciding which are the ‘terrorist groups’ in Syria. The invocation of a ‘legitimate purpose’ to justify intervention by invitation could become an empty shell or a mere game of semantics if it is used just as a cover to interfere in a civil war. The efforts of Russia to convince that the purpose of its invitation is just to ‘fight terrorism’ could indeed become meaningless if Russia shares the very broad approach of the Syrian government which seems to consider that almost all groups opposing government forces should be considered as ‘terrorist groups’.
An examination of Russia's arguments does not seem to confirm, nonetheless, that this is the case.
Russia, of course, expressed doubts about the exact number and identity of the ‘terrorist’ groups in Syria. Russia mentioned several times that ‘world powers must identify which of the dozens of rebel groups fighting in Syria are“terrorists”before resuming talks on establishing a limited cease-fire and moving toward a solution to the conflict’.
But these doubts regarding the exact number and identity of terrorist groups in Syria are shared, to some extent, by the international community. The UN Security Council clearly stated in several occasions that ISIL, the Al-Nusrah Front, ‘and all other individuals, groups, undertakings and entities associated with Al-Qaida’ are clearly terrorist organizations.
The UN Security Council has also clearly and constantly affirmed that other groups could be added to the list ‘as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the Statement of the International Syria Support Group (ISSG) of 14 November 2015’.
The embarrassment of the international community concerning the exact identification of terrorists in Syria is also evident in the decision of the participants in the Vienna talks on Syria to ask Jordan to coordinate efforts to compile a common list of terrorist groups in Syria.
Despite these uncertainties, Russia stated that ‘Russia's targets were those considered terrorists by the United Nations and by the Russian legal system, including Islamic State and the al Qaeda-linked Nusra Front’ and that the Free Syrian Army rebels are not considered by Russia as a terrorist group.
It has maintained that Russia's and USA's ‘terrorist’ lists ‘largely coincide’.
Russia also expressed several times its ‘readiness to cooperate with the so-called moderate Syrian opposition’
and claimed having ‘worked together with the Free Syrian Army’ and the Syrian Kurds in the fight against terrorism.
Whatever the veracity of these statements is, it seems that Russia does not officially consider all the Syrian rebels as ‘terrorists’ and does not claim a right to target them either on the basis of the theory of intervention by invitation.
As a conclusion, whatever the reality is on the ground, the legal arguments used in relation to the Russian intervention in Syria give no support to the idea of absence of prohibition of consensual intervention in a civil war and seem to confirm, on the contrary, the purpose-based approach of intervention by invitation.
4.2. The US-led intervention and the murky waters of passive consent
The strikes of the US-led coalition against ISIL in Syria started on 22 September 2014, a few days after the speech of the US President Barack Obama, indicating the intent of the US to ‘degrade, and ultimately destroy, ISIL through a comprehensive and sustained counterterrorism strategy’ and to ‘hunt down terrorists who threaten [the US], wherever they are’.
According to the official US webpage of Operation Inherent Resolve, the following ten states have participated in US-led airstrikes in Syria until early February 2016: the US, Australia, Bahrain, Canada, France, Jordan, Saudi Arabia, Turkey, UAE, and the United Kingdom.
Contrary to the Russian and Iranian intervention, it is impossible to use the theory of military intervention by invitation for the US-led intervention. In order to use consent as a potential legal basis for this intervention, one could thus only rely on a theory of ‘passive consent’ which is nonetheless not only controversial in international law, but also extremely difficult, if not impossible, to use in the case of Syria once we examine all the relevant facts.
4.2.1. The impossibility to use the theory of military intervention by invitation
Three simple facts clearly establish that it is impossible to argue that the USA-led coalition intervened in Syria on the basis of an invitation by the Syrian government. Firstly, it is clear that Syria never requested such an intervention which is in sharp contrast with the invitations extended to both Iran and Russia. In a letter sent to the UN Security Council on 17 September 2015, Syria emphasized that it ‘has not made any request to that effect’.
Secondly, consent has clearly never been asked from Syria by the states participating in the US-led coalition. All of them are hostile to the official government of Bashar al-Assad, considering it illegitimate and asking for its departure. The US State Department clearly indicated that the US-led coalition was ‘not looking for the approval of the Syrian regime’,
and constantly ruled out any cooperation with Syrian government forces.
Thirdly, on the legal field, the issue of invitation or consent was never mentioned in the legal justifications provided by the intervening states. The US letter of September 2014 and all the other letters of intervening states sent to the UN Security Council only advance, as a legal basis, ‘self-defence’, either individual and/or collective, combined with the fight against terrorism and, sometimes, the ‘unable or unwilling theory’. Far from ‘consenting’, Syria is presented in some of these letters as ‘neither capable . . . nor willing to prevent these threats emanating from its territory’.
It is thus clear that in the case of the US-led coalition's military activities in Syria, nobody issued an invitation and nobody requested or accepted one. Could we consider, nonetheless, that the identity of the common enemy and some mutual interests could at least leave open the possibility of some kind of concealed cooperation or, at least, passive consent and acquiescence by the Syrian government to the strikes against ISIL? Before looking at the facts, let us examine if international law could accept a ‘passive consent’ theory of intervention.
4.2.2. Does international law accept the theory of ‘passive consent’?
It is well known that ‘one of the bedrocks of international law is the “action–reaction paradigm”. The conduct of a State towards another State and the reaction of the latter are essential to the definition of their relations’.
Silence, inaction, tolerance, absence of protest, passivity, and acquiescence can play a very important role in international law and the maxim qui tacit consentire videtur si loqui debuisset ac potuisset is of fundamental importance. Could this maxim be combined with the maxim volenti non fit injuria and lead to the conclusion that passive consent is possible?
Whatever the answer in other fields of international law is, considering the specific and so important issue of military intervention, the risks of abuse are evident: the blind application of the principle qui tacit consentire could indeed lead to chaos. States could undertake military interventions on foreign territory invoking implied consent, or hoping for a retrospective one. Weak states would often have to endure such military interventions on their territory, not daring to criticize the actions of powerful states or ‘allies’ with whom they find themselves in a situation of dependence (concerning for example, security arrangements or expectations of financial aid). An eventual ulterior protest could come ‘too late’. It could thus be wiser for international law to avoid the risks of abuse by requesting not only prior consent (this is admitted by all), but also written or clearly expressed consent for military intervention.
During the debates for the adoption of the UN General Assembly Resolution 3314 on the definition of aggression, two states proposed to introduce to the list of acts that ‘qualify as an act of aggression’, any armed action conducted without the written or express consent of the state concerned.
This proposal was not accepted and Resolution 3314 does not set any conditions as to the form of the agreement. According to this resolution, nonetheless, an act of aggression may consist of the:
use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.
Without requiring an ‘express’ agreement of the receiving state, this paragraph seems to leave little room for military activities or even presence of foreign troops in the territory of the receiving state on the basis of its ‘presumed’ continuing consent.
Similarly, during its work on codification of consent as a ‘circumstance precluding wrongfulness’, the International Law Commission seemed hostile to the idea of presumed consent. While Article 20 of the ARSIWA adopted in 2001 requires only ‘valid consent by a State’, without setting any formal conditions, the commentary emphasizes that ‘[c]onsent must be freely given and clearly established. It must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked’.
While the IDI was well aware of this hostility of the Commission to presumed consent, the 2011 IDI resolution on military assistance on request set no formal conditions, only mentioning that ‘[t]he request shall be valid, specific and in conformity with the international obligations of the requesting State’.
This is probably related to the absence of formalism in international law: what is of paramount importance is the will of states, not specific forms. Oliver Corten, who clearly rejected the idea of ‘implied authorizations to use force’ by the UN Security Council,
accepts the theory of ‘presumed consent’ in relation to military intervention. He bases this acceptance on the position of the International Court of Justice in the 2005 Armed Activities on the Territory of the Congo (DRC v. Uganda) Judgment where the Court found that the DRC had consented to Uganda's military intervention through tolerance or absence of protest.
For Corten, ‘[i]t is very clear, in view of [the reasoning of the Court], that consent may be given in a completely informal manner; a simple tolerance may suffice to demonstrate its existence in the particular circumstances of the case’.
Beyond the Armed Activities case, one could probably mention the case of the US drone strikes in Pakistan. The government of Pakistan never ‘invited’ the US or expressed publicly formal consent for the drone strikes against Al-Qaeda and Taliban leaders and fighters on its territory since 2004. On the contrary, it took the public position that it was opposed to these drone strikes.
Several organs within Pakistan, such as members of parliament or the Pakistani high court, strongly criticized the strikes, but it was only in August 2014 that the government officially filed a protest to the US considering the strikes as a ‘violation of Pakistan's sovereignty and territorial integrity’ and calling for ‘an immediate end to US drone strikes’.
This led Michael Lewis to conclude that ‘up until now the US was apparently operating under continued passive consent based upon the behaviour of the military and ISIL which were either cooperating or at least not interfering with the strikes’, but the protest of June 2013 should be considered as an ‘official withdrawal of consent for the drone strikes’ by Pakistan.
A few months later, several sources revealed the existence of secret memos showing that Pakistan endorsed US drone strikes for several years.
The ‘Pakistani precedent’ therefore seems to confirm that, for several political reasons, governments might choose not to render public the existence of consent for a military intervention. Let us now turn to the situation in Syria to check whether the situation there compares with the ‘Pakistani precedent’.
4.2.3. ‘Passive consent’ during the first year of the US-led intervention?
Any comparison between Syria and Pakistan immediately runs against a major obstacle: in the case of Pakistan, the US never challenged the legitimacy of the Pakistani government. In the case of Syria, on the contrary, the governments of all states participating in the US-led coalition strongly challenge the legitimacy of the Syrian government, constantly asking President Bashar al-Assad to step down in order to open the way to a political transition, and are refusing any substantial cooperation with the Syrian regime while Bashar al-Assad is still in power. This creates a constant animosity between the two sides which could hardly let any space for a theory of even ‘passive’ consent.
When US President Barack Obama announced his intention to bomb ISIL targets in Syria on 10 September 2014, Syria strongly reacted. The Syrian Minister of National Reconciliation declared that ‘any action of any kind without the consent of the Syrian government would be an attack on Syria’.
Similarly, Russia and Iran declared that ‘strikes by the US armed forces against ISIL positions in Syria without the consent of the legitimate government’ will be, ‘in the absence of a UN security council decision, . . . an act of aggression, a gross violation of international law’.
However, on 24 September 2014, just one day after the first strikes in Syria, the same Syrian minister declared that the airstrikes launched by the international coalitions against ISIL in Syria were ‘going in the right direction’ and that the Syrian government was kept informed by the US.
The passivity of the Syrian government in the following months (until September 2015) could indicate that, while following closely the situation and fearing an eventual use of the airstrikes against the regime, it was not opposed to the strikes of the US-led-coalition against ISIL which was a relief for the government forces. In a letter sent to the UN Security Council in June 2015, for instance, Syria emphasized that ‘it is prepared to cooperate bilaterally and at the regional and international levels to combat terrorism’ and that:
it supports any genuine international effort aimed at countering the scourge of terrorism in all its forms and manifestations, provided that, in doing so, every effort is made to safeguard civilian lives, respect national sovereignty and adhere to international instruments.
This passivity of the Syrian government is to be compared with its strong reaction concerning other cases of military interventions on its territory. In December 2014, for example, Syria claimed that ‘Israel committed yet another criminal aggression against [Syria's] territory and sovereignty’ by bombing two civilian areas in Syria.
In February 2015, Syria also condemned as ‘flagrant aggression’ the intervention of the Turkish army on Syrian territory aimed to ‘relocate the tomb of Sulayman Shah’ without the consent of the Syrian government.
It would probably be an exaggeration to conclude, on the basis of these elements, that there was clear ‘passive consent’ during this first year of the US-led airstrikes, providing a sufficient legal basis for the operations, but the absence of protest by Syria could lead towards this idea. This situation changed dramatically in September 2015.
4.2.4. The end of passive consent since September 2015?
Already fragile in the previous period, the theory of passive consent seems to be in big trouble since the 17 September 2015 when Syria sent a letter to the UN Security Council concerning the ‘military measures against the Syrian Arab Republic’ carried out by some states and the legal justifications advanced for them. Syria explains that these states
invoke a distorted reading of the intention of Article 51 of the Charter of the United Nations . . . Syria has not made any request to that effect. . . . If any State invokes the excuse of counter-terrorism in order to be present on Syrian territory without the consent of the Syrian Government, whether on the country's land or in its airspace or territorial waters, its actions shall be considered a violation of Syrian sovereignty. Combating terrorism on Syrian territory requires close cooperation and coordination with the Syrian Government in accordance with the counter-terrorism resolutions of the Security Council.
Similarly, a few days later, Syria said, during a debate in the UN Security Council, that:
The actions of the United Kingdom and France in Syrian air space are contrary to the Charter of the United Nations and international law, as well as a flagrant violation of Syria's national sovereignty. Those who genuinely wish to combat terrorism must coordinate their efforts with the Syrian Government . . .
These strong protests by Syria only focused at that time on the actions and legal arguments used by three states just joining the coalition, namely the United Kingdom, Australia, and France – not the other members of the US-led coalition. In subsequent letters, nonetheless, it became clear that Syria was strongly opposed to the airstrikes and legal arguments used by all members of the US-led coalition.
Indeed, since September 2015, a period coinciding with the beginning of the Russian airstrikes requested by the Syrian government, Syria sent to the UN Security Council several other letters strongly and continuously protesting against the airstrikes. In November 2015, for instance, Syria protested that ‘[a]ircraft of the so-called international coalition led by the United States of America continue to violate the sovereignty of Syria under the pretext that they are targeting the Islamic State in Iraq and the Levant (ISIL) terrorist organization’.
A month later, Syria qualified a specific airstrike against a Syrian Arab Army camp as a ‘blatant aggression by coalition forces’.
In January 2016, it filled a new protest making a contrast between the US-led interventions and the Russian interventions: ‘At a time when the coalition's futility and hypocrisy have become clear to see, the Syrian Arab Army and the Russian air force are waging relentless war on the terrorists’.
Although these protests leave no room for the theory of ‘passive consent’,
three observations can be made. First, while Syria strongly opposes in these letters the distortion of the self-defence provisions of the Charter and the ‘unwilling or unable’ theory advanced by some of the intervening states, at no point does it challenge the legality of a military intervention on the basis of consent. On the contrary, in all these letters Syria clearly insists on the need for consent from the Syrian Government and consultation/cooperation with the Syrian authorities for any anti-terrorism military action undertaken on its territory. This means that if, for example, some of the intervening states decide in the future to consult secretly with the Syrian government the passive consent theory could be revived.
Second, while Syria protests in these letters against what it calls ‘a flagrant violation of its national sovereignty’ by the US-led coalition, it does not call for an end to the airstrikes against ISIL. Despite these protests, Syria thus does not seem hostile to the airstrikes against ISIL, while desperately wishing to move these airstrikes under a new legal regime of consent and coordination with the Syrian government. A kind of ‘conditional invitation’ is thus in place.
Would the states participating in the US-led coalition be able to accept this invitation? After the 13 November 2015 Paris terrorist attacks, some states, especially France, gave the impression that they were adopting a more flexible approach by considering cooperating with the Syrian governmental army.
The US, the Arab partners of the coalition, and the majority of other states remain nonetheless hostile to any cooperation with President Bashar al-Assad. As of early February 2016, the UN leads international efforts for an agreement between the Syrian rebels and government for a process of political transition combined with a ceasefire. The UN Security Council expressed in Resolution 2254 of 18 December 2015 its strong support:
for a Syrian-led political process that is facilitated by the United Nations and, within a target of six months, establishes credible, inclusive and non-sectarian governance and sets a schedule and process for drafting a new constitution, and . . . for free and fair elections, pursuant to the new constitution, to be held within 18 months . . .
The UN Security Council also noted that the proposed ceasefire ‘will not apply to offensive or defensive actions’ against ISIL, the Al-Nusrah Front, ‘and all other individuals, groups, undertakings, and entities associated with Al Qaeda or ISIL, and other terrorist groups . . .’
It is therefore not excluded that, if the process of political transition succeeds (despite the current difficulties) and if a new government is formed under this process, the USA-led coalition's airstrikes against ISIL could come under the umbrella of the theory of intervention by invitation. But for the time being, this is clearly not the case.