CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ criticism from other actors, including the League of Arab States. 70 It is interesting that to justify its actions, Turkey did not invoke any alternative legal ground, relying solely on the consent of Iraq and blaming the incident on a “miscommunication” . 71 In view of the frequency of similar incidents and the regular protests by Iraq, such a justification is not persuasive. The legality of the use of force by Turkey in Iraq is therefore questionable. 4.2 Intervention by Invitation in Syria? The use of force in the territory of Syria gives rise to even more difficulties. This does not apply so much to the intervention by the Russian Federation which relies on the explicit consent of the Syrian government, but, rather, to the argument put forward by certain scholars that the intervention by the USA and some other States of the CJTF–OIR coalition could rely on an implicit consent of Syria. The Russian Federation started its military action in Syria on 30 September 2015, suspended it in March 2016 72 and renewed it in September 2016. In his speech of 30 September 2015, president Putin claimed that “the participation of Russia in the anti-terrorist operation in Syria takes place based on international law, in accordance with the official request addressed to us by the President of the Syrian Arab Republic”. 73 This claim has not been challenged by other States. In the scholarly literature, however, it has given rise to some doubts. This is so mainly due to the fact that the intervention has taken place in the middle of a full-fledged civil war. Yet, as indicated above, the existence of a rule under which States should refrain from giving military assistance to parties to a civil war is uncertain. Doubts have also been expressed with respect to the legitimacy of the president Bashar Al-Assad to issue a valid consent. 74 Since, however, no other actor – not even the Syrian National Coalition 75 – has been recognized as a new government of Syria, the presumption of legitimacy of the existing government should most probably prevail, at least as far as the strikes against the IS forces are concerned. The US and its allies have also intervened in Syria. These States have not obtained an explicit invitation by the Syrian government and they have mostly invoked self-defence as the legal ground justifying their action. Yet, it has been suggested by some scholars that the action could in fact rely on an implicit (or passive) consent by Syria. 76 The theory of implicit (passive) consent is not generally accepted under international law. The ICJ seems to have alluded to it in the 2005 Armed Activities on the Territory of Congo case, where it found that the Democratic Republic of Congo had consented to Uganda’s military intervention in its territory through tolerance or absence of protest. 77 In light of this case, Corten argues that “it is very clear /…/ that consent may be given in a completely informal manner; a simple tolerance 70 UN Doc. S/2016/16, Letter dated 7 January 2016 from the Permanent Representative of Egypt to the United Nations addressed to the President of the Security Council , 11 January 2016. 71 Republic of Turkey, Ministry of Foreign Affairs, Press Release No: 313 Regarding the Bashiqa/Zelikan Training Camp, 19 December 2015. 72 Russia begins withdrawing forces from Syria, CNN, 15 March 2016. 73 Полный текст заявления Владимира Путина об использовании ВС РФ в Сирии , RT News, 30 сентября 2015. See also Президент Сирии обратился к России с просьбой о военной помощи , РБК , 30 сентября 2015. 74 See VISSER, Laura, Russia’s Intervention in Syria, EJILTalk, 25 November 2015. 75 See AKANDE, Dapo, Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?, EJILTalk, 6 December 2012. 76 See RONZITTI, Natalino, op. cit. 77 ICJ, Armed Activities on the Territory of the Congo , op. cit., par. 303.

248