Published: 17 February 2020 Author: Stefan Talmon
Civil-war torn Syria has become a stomping ground for foreign troops. The United States, Russia, Turkey, France and the United Kingdom have all admitted that they have soldiers on the ground in Syria. While France and the United Kingdom have sent special operations forces to Syria, the United States, Russia and Turkey have deployed regular troops to the country. All five States have justified their troop presence in Syria with fighting the Islamic State (IS) and other terrorist groups in the country. In response to parliamentary questions, in January 2020 the German Federal Government set out its position on the legal basis for the presence of the Russian and U.S. troops in Syria.
Russian troops have been in Syria since September 2015, supporting the Syrian military in its fight with rebel groups. The Russian intervention came at an official request by the Syrian President, Bashar al-Assad. The Federal Government seems to acknowledge the legality of the presence of Russian troops as an intervention by invitation, stating:
“The Russian military presence in Syria is based on the consent of the Syrian regime. At the time of the request for assistance, the regime of President Assad represented Syria in terms of international law.”
That for political reasons the Federal Government used the derogatory term “regime,” when referring to the Syrian “government” does not alter the fact that this “regime” was entitled under international law to represent the State of Syria and to lawfully invite foreign troops into the country.
In contrast, the Government of President Assad has condemned the presence of troops from other countries as a flagrant violation of the sovereignty and territorial integrity of Syria, and a violation of the Charter of the United Nations and international law. At the beginning of 2020, there were still some 600 U.S. soldiers present in northeast Syria. The United States justified its military action in Syria with “the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the United Nations,” when, as is the case in Syria, the government of the State where the threat was located was unwilling or unable to prevent the use of its territory for attacks by IS. The Federal Government also seems to subscribe to the self-defence argument as the legal basis for the presence of U.S. troops in Syria. It stated:
“The Federal Government, like the United States, assumes that the conditions under international law for self-defence against the so-called IS continue to exist. The armed attack by IS continues. The IS continues to claim the areas which it previously controlled and, in addition, is gearing its actions towards regaining strength and extending its underground network in areas where the control of the territory by the security forces is not yet effectively guaranteed.
“The U.S. presence in northeast Syria is part of the efforts of the international anti-IS coalition to effectively combat the so-called IS in Syria and Iraq.”
“The Syrian regime can neither be seen as an effective guarantor of the territorial containment of IS nor as a guarantor of security against the so-called IS.”
On 13 October 2019, U.S. President Donald Trump ordered the complete evacuation of U.S. troops from Syria ahead of a Turkish incursion into northeast Syria. However, only a few days later, he reversed that decision and directed U.S. troops to deploy around the oil fields in northeast Syria instead. The United States claimed that it was protecting the oil fields in order to prevent them from falling back into the hands of the IS or other destabilizing actors. The Federal Government also considered this action to be covered by the right of self-defence against the IS, stating:
“Cutting off sources of income is also part of the anti-IS struggle.”
The presence of U.S. troops in Syria has been justified on grounds of self-defence against the IS. However, with the loss of the IS’ last territorial base in Syria in March 2019 the argument stands on even shakier grounds than before. The Federal Government admits that it is the declared goal of the Syrian Government to recapture the entire Syrian State territory. With Russian and other support, Syrian troops have made steady progress in this regard over the last few years. It is, inter alia, the continued presence of hostile foreign troops – in particular U.S. and Turkish troops – that has prevented the Syrian Government from exercising its authority throughout the whole country.
The presence of U.S. troops in northeast Syria also raised the question of whether the United States qualified as an occupying power in Syria in the meaning of the term as understood in the jus in bello. The Federal Government answered this question in the negative, stating:
“Pursuant to Article 42 of the Hague Regulations on Land Warfare, occupation in terms of international law requires that the foreign armed forces are not just present in the territory, but that they have effective control over the territory and exercise jurisdiction. To the knowledge of the Government, in particular the latter requirement is not fulfilled in the case of the U.S. presence in Syria.”
Article 42(1) of the Hague Regulations on Land Warfare provides that territory must be considered occupied “when it is actually placed under the authority of the hostile army.” There is controversy about whether “authority” simply means effective control over territory or whether it also requires the exercise of actual control over the population of the territory. In its judgment in the Armed Activities case, the International Court of Justice (ICJ) interpreted Article 42 as requiring both territorial control and the exercise of actual control over the population; in the words of the Court, the foreign forces “must have substituted their own authority for that of the [local] Government.” It is thus not sufficient that the foreign forces have barred the Government of the State from exercising its authority in the territory – they must rather have taken its place. However, this interpretation was supported neither by the travaux préparatoires nor by previous case law, and has been criticised in the literature. By requiring the “exercise [of] jurisdiction” in addition to effective territorial control, the Federal Government nevertheless follows in the footsteps of the ICJ’s interpretation of Article 42.
The ICJ’s approach, however, is not without problems. It basically leaves it to the foreign army whether it wants to be considered an occupying power or not. Simply by not exercising control over the population, even if in a position to do so, a foreign army can absolve itself from the law of occupation. This means that all provisions of the 1907 Hague Regulations on Land Warfare, the 1949 Fourth Geneva Convention, and the 1977 Additional Protocol I to the Geneva Conventions – as well as the corresponding rules of customary international law – referring to the terms “occupation”, “occupying power”, “occupying authorities”, “occupied territory”, or “occupied areas” are not applicable. In addition, in the case of the Fourth Geneva Convention and Additional Protocol I it is not just the provisions employing these terms but the entire instrument that is not applicable, as these treaties apply only in three situations: (1) declared war; (2) other armed conflict; or (3) “partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” There currently exists neither a war nor an armed conflict between the United States and Syria. It is thus only the third alternative of a partial occupation of Syrian territory not having met any armed resistance on the part of the Syrian Government which could make these treaties applicable to the U.S. forces in Syria. The ICJ’s approach thus creates a major loophole in the application of the law of occupation, which deprives the population in the occupied territory – but also the ousted Government of the occupied State, and neighbouring States – of an internationally accountable governmental authority in charge.
The adoption of a restrictive interpretation of Article 42 of the Hague Regulations on Land Warfare may have saved the Federal Government from having to label the United States an “occupying power”, a term that has acquired a pejorative connotation. However, it has thereby supported a development of the law which allows States to effectively control the territory of another State without being considered an occupying power. The possibility of such occupation “light”, where States are in control but not formally in occupation of foreign territory, opens up the possibility of abuse and is not in the interest of the population of the territory in question.
For a further comment on the German Government’s statement, see Eliav Lieblich, Germany Goes 19th Century with New Statement on Law of Occupation – On Status of U.S. Forces in Syria.