Introduction
Anti-regime and Pro-democracy protests erupted in March 2011 in the Southwestern city of Derra in Syria and soon catalyzed the entire nation demanding the “fall of the regime”. What followed was the systemic reprisal of dissent by the Assad government and the killing of hundreds of demonstrators and the imprisonment of many more. On September 23, 2014, in the aftermath of the regime using chemical weapons against the opposition, the US and its Arab allies launched an air campaign against ISIS (Islamic State of Iraq and Levant), and the US deployed around 2000 troops in the region. In October 2015, the Kurdish-Syrian alliance of over 5000 troops called Syrian Democratic Forces (SDF) was created with the backing of the US government. Since 2014, the US has maintained a significant military presence in Syria- conducting periodic airstrikes and deploying hundreds of troops in the country. The US has justified its involvement in Syria consistently as a part of its broader “war on terror” campaign. It launched its first direct military action against Assad’s forces on April 7, 2017, near Homs, Eastern Syria. The Al-Shayrat airbase was targeted in response to chemical attacks carried out by the regime in the Idlib province. On December 19, 2018, the White House declared that the territorial caliphate of the Islamic State had been defeated and the US mission was transitioning to the next phase of its campaign in Syria. Over 2000 troops were ordered to be removed from the region.
Despite signaling this major policy shift- around 900 US troops continue to be stationed in Syria. Recently on March 24, 2023, in response to attacks by alleged Iranian-backed militias on the coalition’s airbase near Hasakah in North Eastern Syria which killed a US contractor and injured many others; US forces retaliated with air strikes against these groups in various parts of the country. The current US policy signals the retention of these troops in Eastern Syria specifically at the Al-tanf base to train and back up Kurdish forces, aid Israeli operations in the region, monitor the Syria-Iraq border, retaliate against attacks carried out by what remains of the so-called ISIL as well as target alleged Iranian forces in the region. Thereby, the avowed goal of US military intervention in Syria no longer remains just ‘counter-terrorism.’ In light of these circumstances, in this blog piece, I firstly trace the standards laid down to constitute military occupation under Article 42 of the Hague Conventions and, secondly, argue that there is a case to be made that the continued US military presence in North-Eastern Syria constitutes a military occupation under the Hague Convention.
Article 42 of the 1907 Hague Regulation defines a territory as occupied when it is “actually placed under the control or authority of the hostile army.” Such authority needs to not only be established but also exercised. Common Article 2 of the Geneva Conventions 1949 expands on this definition and explicitly includes those occupations that do not encounter any armed resistance. The requirements that have to be satisfied to consider a territory as “actually being placed under the control of another” as corroborated by legal jurisprudence is the notion of “effective control.” The test of “effective control” can be further broken down into two constitutive elements, which I unpack in this piece.
First Prong of the Effective Control Test- Unconsented-to Presence of Foreign Forces in the Territory
Firstly, one must establish the unconsented-to presence of foreign forces in the territory. Such troops need not inhabit every square meter of the occupied territory. Effective control could be established by the placement of belligerent troops in strategic positions, with the occupying forces retaining the ability to send in troops at a reasonable time to make its authority felt as and when needed. This position was affirmed by the ICTY in the Blaškić case. Mere or brief incursions would not amount to an occupation, as armed forces have to be necessarily deployed to establish a degree of stability. Any consent to the presence of these forces has to be explicit and unambiguous in nature to warrant merit. Additionally as suggested by the language of Article 2 (2) Common to the Geneva Convention 1949, the fact that the invaded state does not institute military operations against the foreign forces does not inferentially lead to the conclusion that they have tacitly consented to their presence.
The US currently retains over 900 troops in North-Eastern Syria majorly, such as in the Hassakeh and Raqqa Provinces. It has also continued to maintain full control over the Al-Tanf base since 2016. These forces are supported through air power from CENTCOM’s Al-Udeid Air Base in Qatar. The Syrian government has unambiguously categorized US military presence as an “act of aggression” against the country’s sovereignty, signaling a lack of consent thereof. The troops have also been consistently involved in military operations against the country’s armed forces, Russian forces, and alleged militants of Iranian origin. The US has also bolstered its forces in the region in light of recent growing attacks on its troops. Reports indicate the increased usage of stealth fighter jets and drones in regular show-downs of dramatic power plays between US and Russian air forces in the Syrian airspace. The multifaceted capacity of the military operation is evident by the advanced air power deployed in the region to capture ISIL militants and other militia in various parts of the country. The placement and operation of US troops in Eastern Syria without the consent of the Syrian government thereby satisfies the first prong of the effective control test.
Second Prong of the Effective Control Test- Exercise of Authority
Secondly, the presence of these troops should necessarily imply that the local government has ceased to exercise ordinary authority and the occupying forces are in a position to substitute their authority therein. This does not preclude the possibility of a situation where there is a ‘vertical sharing of authority’ in which case, the occupying power maintains a top-down control over the local authorities and allocates responsibilities to regulate their functioning. The lex lata only being that ‘occupying power displays the potential or is in a position to substitute its authority in the territory’ as affirmed by the ICTY in the Blaškić case. With the increased air force power and intelligence capacities; it has become easier for occupying forces to maintain ‘effective control’ with minimum troops on the ground.
Around 70 percent of Syrian territory today is controlled by the Syrian army. Kurdish forces continue to control North Eastern parts of the country where most US troops are situated. Armed groups such as Hayat Tahrir al-Sham group linked to Al-Qaeda control areas around the north-west of Idlib. To assess whether US forces are in a position to substitute their authority and exercise “effective control” over parts of North-Eastern Syria where they are located. It is imperative to assess their nexus with de-facto armed entities such as the Syrian Democratic Forces (SDF) who are the key operators in North and North-Eastern Syria. The SDF provides for local administration in the region through the Autonomous Administration in North and East Syria (AANES). SDF undertakes numerous administrative activities such as providing educational services, entering into oil sales agreements with various state and non-state entities among others. They also manage and run prisons which majorly detain former ISIL militants. There can be little contention that Syrian Democratic Forces exercise ‘effective control’ over Northern parts of Syria. As they have not only displaced the authority of the Syrian government but have also effectively established institutional structures to conduct local governance in the region. They have sustained a military prowess that has enabled them to lead operations against the Islamic State in the region- displaying organized structures of command and usage of advanced weaponry. It remains a settled position that non-state armed groups can occupy territory under International Law as held by the ICTY trial chamber in the Blaški´c case.
However, in determining state responsibility for the actions of other armed groups with respect to military occupation, ICTY has enunciated the “overall control” test in the Tadic case. Article 8 of the Responsibility of States for Internationally Wrongful Acts provides that the conduct of a group of persons shall be considered an act of a state under the provisions of international law if such group of persons are in fact acting on the instructions, direction and control of the state carrying out the conduct. The ICRC Commentaries to Geneva Conventions III provide that a state could be considered an “occupying power” when it exercises overall control over groups that are in themselves in effective control of all or part of the territory. A state therefore can be considered to be responsible for occupation as a proxy if it wields overall control over the armed groups establishing authority over the captured territory. This could include, “equipping or financing the group, coordinating or planning its general military activity, issuing instructions to the groups to carry out attacks or operations.”. This position was affirmed by the ICC – Pre Trial chamber in Prosecutor v Luganba. However, the exercise of powers by an occupying authority through proxy armed groups has to be established on a case-to-case basis. The ICJ in the Bosnian Genocide case reiterates this position: “in every operation where alleged violations occurred it must be established that state instructions were given specifically. Not generally in respect of overall actions undertaken by the group.”
The U.S. has clearly followed a “by, with and through” effort in North-Eastern Syria. Its military footprint has ranged from 500 to 1500 troops which peaked at 5,275 troops in 2019 with funding totaling 2.63 billion $ from 2017 to 2021. Research indicates that the United States maintained more control than what most observers in International media let on, through explicit instruction, funding, and inferred expectations. The partnership began with very few troops on ground who established a strong connection with the SDF which led to the establishment of Combined Joint Special Operations Task Force–Syria (CJSOTF-S). The task-force subsequently launched offensives in both the east and the west. From the start of the war in Syria, the US has maintained close co-operation and control over the functioning of the SDF. From large scale Title 50 train-and-equip missions to the establishment of the Syrian Train and Equip Fund which later canopied into the Counter-ISIS Train and Equip Fund (CTEF)- US has not only provided funding and training to SDF but has also provided direct authorization and demonstrated close cooperation in several military operations such as the liberation of ISIS strongholds in cities such as Raqqa. Therefore, the unconsented presence of US military forces and its overall control over the functioning of SDF in many of its operations may effectively satisfy both the prongs of the “effective control test” (to be determined on a fact-to-fact basis) qualifying US presence in Syria as a ‘military occupation’ under the Hague convention.
Conclusion
The US military presence in Syria has been sought to be shrouded within an uncomfortable silence. As recently as October 28, 2023 US launched two air strikes in Eastern Syria targeted alleged ‘Iranian’ facilities in light of the recent attacks against US personnel in Iraq and Syria by Iranian-backed militia groups. While, the international media has sought to take the presence of US troops for granted, as if it should be taken as a ‘given.’ There have been consistent flaws, ambiguity and deficiency in reviews of US military action in Syria. The language of international law is not neutral, it is often interpreted with an intentional ambiguity to protect the inherent status quo of unequal power distribution among states in the international order. Inherent in conceiving international law as a framework of emancipation is arresting ambiguity with accountability. US military presence in Syria blatantly disregards the obligation to respect sovereignty of the Syrian people. Additionally, efforts to canopy this presence as a ‘counter-terrorism operation’ intentionally erodes its meaning under international law and arrests the possibility of demanding effective accountability. As demonstrated above, there can be several instances where US involvement in the region satisfies both prongs of the ‘effective control test’- qualifying it as a ‘military occupation.’ Any review of US actions in Syria must necessarily undertake effective fact-based inquiry on a case- to- case basis under this framework to enhance its accountability under international law.
Panchami Manjunatha is a second-year law student from the National Law School of India University, Bengaluru
Image: Foreign Policy, Delil Souleiman/AFP via Getty Images (modified by JFIEL)
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