Many wonder whether the Obama administration should essentially go to war with Syria in an effort to end the atrocities Assad is committing in Aleppo and elsewhere in the country. Meanwhile, the White House seems reluctant to admit that recent US military actions have already crossed the threshold of what international jurists would consider an “armed conflict” between the US and Syria. Why does the administration not admit it, and what is the point of not doing so?
A cruel irony is that accepting that an armed conflict exists between the two countries could have significant benefits in addressing Assad’s gross violations of humanitarian law. signatory states to the Geneva Conventions, which now include every nation across the globe, are legally bound to track suspected war criminals transiting through their country and then prosecute or extradite them. Think about what this could mean for Syrian officials and give diplomats a new baton in their efforts to confront Damascus and Moscow. However, the system of application of the Geneva Conventions applies only to war crimes committed in conflicts between two or more states (think: United States versus Syria), and does not apply to conflicts between a state and a non-state actor (think: Syria versus rebel groups).
Why do I say that recent military actions cross the line of international armed conflict, and not the thousands American bombs that have been dropped on ISIL targets in the past two years? It is perhaps unsurprising that international lawyers dance over the question of when confrontations should be classified as an “international armed conflict”. When US forces began bombing ISIL in Syria, we lawyers debated (and continue to debate) whether that meant the armed conflict was just between the United States and the armed group or directly between the United States and Syria. The more conservative approach holds that such strikes result in armed conflict only between the United States and ISIL. According to this view, an international armed conflict would only exist if two governmental forces directly confronted each other or if one State took control of the territory of the other. That said, even from this point of view, it does not take a significant level of force between two states to trigger an armed conflict. Even the detention of a single soldier would do.
This is where recent US military activities have changed the equation. Since I left the Pentagon, three groundbreaking events have occurred in this space.
First, the United States military possesses forced what many consider essentially amounts to no-fly zones which require the Syrian air force to avoid airspace over areas in which US-backed coalition forces and personnel American operate.
Third, the United States appears directly bombed the Syrian military forces. Damascus said it was no coincidence, and they could very well believe it. To be sure that other countries, including even the United States allies in the Regionhad more paranoid thoughts about our motives and actions.
The administration may be reluctant to admit that these events constitute an armed conflict with Syria, as such an admission could lead to an uncontrolled escalation of hostilities. If the President went to the Rose Garden tomorrow and announced that the United States was in armed conflict with Syria, imagine the results. The recent report from the Ministry of Defense law of war manual recognizes this political reality as a general feature of international affairs. “Government officials may deny the existence of an armed conflict,” the manual explains, “to prevent an escalation of fighting and facilitate a diplomatic resolution.”
However, to say that we are in an armed conflict does not mean that we are at war. The definition of ‘armed conflict’, which worries humanitarian lawyers who want to know whether the Geneva Conventions apply, is not the same as the political situation involved in ‘war’. Keep in mind that even the detention of a single soldier would likely be enough to trigger the protections of the POW Convention, but that’s nowhere near enough force to be considered a war between two states. Indeed, strange as it may seem to a policy maker, a detained soldier can rightly be classified as a “powder of war” even when there is no war.
In some ways, we’ve been here before. In 1983, US Lieutenant Robert Goodman was shot down over Lebanon and captured by Syrian forces. At a press conference, a reporter asked if Lieutenant Goodman was a prisoner of war, and President Reagan refuse this. “I don’t know how you have a POW when there is no declared war between nations,” he said. The president may have wanted to avoid the suggestion that the United States was now in direct armed conflict with Syria, which was heavily backed by the Soviet Union at the time. Years later, a seasoned Pentagon lawyer revealed that the administration had, days before Reagan spoke, secretly urged the Syrians to classify Lieutenant Goodman as a prisoner of war. The Pentagon official explained, “The hour-long airstrike probably did not meet the general criteria for a war, but it did cross the threshold of applying the 1949 Geneva Convention.”
The Obama administration is correct in thinking that these distinctions – between “international armed conflict” and “war” – can be lost on the public, and probably even on many diplomats and other world leaders. If the president, however, acknowledged the current state of legal affairs, it could go a long way in advancing his humanitarian goals for Syria. Among other effects, this would help set in motion the global regime for the enforcement of war crimes under the Geneva Convention. Part of this announcement, however, might require an element of public education. Perhaps essays and such by independent legal experts can help start this process.