CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM ASPECTSȎ may suffice to demonstrate its existence in the particular circumstances of the case”. 78 Bannelier- Christakis shares this view, arguing that “Governments might choose not to render public the existence of consent for a military intervention”. 79 Securing only limited support among scholars, 80 this theory, moreover, could hardly apply to the use of force by the US and the CJTF–OIR coalition in Syria. More specifically, it could, at best, apply to its early phase from September 2014 to September 2015. In this period, Syria did not do much to oppose the armed intervention in its territory. In the aftermath of President Obama’s speech announcing the US intention to bomb IS targets in Syria, held on 10 September 2014, Syria declared that “any action of any kind without the consent of the Syrian government would be an attack of Syria”. 81 The view was echoed by Russia and Iran. 82 Yet, when the US (and, later on, coalition) airstrikes actually started on 23 September 2014, Syria and its allies remained astonishingly passive. In fact, Syria gave repeated indications suggesting that it might be willing to condone the strikes, as long as they stayed limited to IS targets. The situation changed in September 2015. In a letter sent to the UN Security Council, Syria condemned the use of force by the Western coalition in its territory, stressing that “Syria has not made any request” 83 and that “if any State invokes the excuse of counter-terrorism in order to be present on Syrian territory without the consent of the Syrian Government /…/, its actions shall be considered a violation of Syrian sovereignty”. 84 In subsequent letters, and proclamations made in the UN Security Council and elsewhere, Syria repeated its opposition to the airstrikes, emphasising that the actions were undertaken without its consent. 85 Particularly strong criticism has been voiced by Syria with respect to strikes directed against its own forces. Thus, for instance, an airstrike against one of the Army Camps carried out in December 2015 was condemned by Syria as a “blatant aggression by coalition forces”. 86 Strikes against the IS have been met with less virulent protests. The position of Syria makes it, however, clear that the theory of implicit consent cannot, at least with respect to the period after September 2015, be validly invoked to justify the intervention by the US and the CJTF–OIR coalition. 80 See also GOODMAN, Ryan, Taking the Weight off of International Law: Has Syria Consented to US Airstrikes?, Just Security, 23 December 2014; FORD, Chris, Implicit Consent and the Use of Force in Syria, Just Security, 2 November 2016. 81 Isis air strikes: Obama’s plan condemned by Syria, Russia and Iran, Guardian , 12 September 2014, online at http://www.theguardian.com/world/2014/sep/11/assad-moscow-tehran-condemn-obama-isis-air-strike-plan (12 April 2016). 82 Ibidem. 83 UN Doc. S/2015/719, Identical letters dated 17 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, 21 September 2015. 84 Ibidem. 85 UN Doc. A/70/385–S/2015/727, Identical letters dated 21 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council , 22 September 2015. 86 UN Doc. S/2015/933, Identical letters dated 7 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council , 8 December 2015. 78 CORTEN, Olivier, The Law Against War , Hart: Oxford & Portland, 2010, pp. 272-273. 79 BANNELIER-CHRISTAKIS, Karine, op. cit., p. 770.

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