The Use of Consent as Circumstance Precluding Wrongfulness.
Permissible Ground for Military Interventions on Other State’s Territory?
Master thesis MA Publiek Recht - Militair Recht - 10 ECTS Wouter Zilverberg - 10264485
Under supervision of Prof. dr. T.D. Gill 24-06-2015
Introduction
Ever since the terrorist attacks in New York and Washington DC on September 11th 2001, the United States of America and many other States have been involved in some form of battle against Islamic militants or the countries that harbour them. From a full-scale international armed conflict in Afghanistan and Iraq to pin-point strikes on predetermined targets in Pakistan and Yemen. Initially Al-Qaeda and the Taliban were the main adversaries in these confrontations, but with the rise of ISIS, the civilized world has found itself a new enemy. From the day the first shots were fired in Afghanistan, an intense debate has divided States and scholars on questions of the legality of these operations. This thesis explores the permissibility to use State consent as a legal basis for the use of force on the territory of another State.
This thesis is divided in three chapters. In the first chapter, I will describe the background of State consent and analyse the different elements of Article 20 of the Articles on State Responsibility for Internationally Wrongful Acts in which consent is codified. In the second chapter, I will perform three case studies into consent. The cases of the use of force against Al-Qaeda, the Taliban and ISIS on the territory of Iraq, Syria and Pakistan will be analyzed. In the third chapter, I will shortly relate the use of consent as a legal basis to the use of force on the territory of another State to two other justifications: a UN Security Council mandate and self-defense; also in the third chapter, I will answer to the main question of this thesis and formulate some recommendations.
To prevent confusion, some explanation on terminology is in order. In this thesis, reference is made to the Articles on State Responsibility for Internationally Wrongful Acts as adopted on second reading by the United Nations in 2001. This document will be referred to as “the Articles” or ASRIWA. An earlier version of the article on consent was already adopted in 1979 in the Draft Articles on State Responsibility. This document will be referred to as “the Draft Articles”. Furthermore, frequent reference is made to the Islamic terror organization ISIS.1 On 29 June 2014, ISIS proclaimed a caliphate and changed its name to IS for “Islamic State”. IS or the caliphate does not qualify to be a State since it does not meet all the criteria in the Montevideo Convention on the Rights and Duties of States. Since this thesis deals with
1 “Islamic State of Iraq and ash-Sham” or “Islamic State of Iraq and Syria”. Sometimes referred to as “Islamic
State Responsibility, it is important to distinct between the caliphate and States that do meet the criteria in the Montevideo Convention. Where ever the word State is used in this thesis it always refer to a State that is recognized by the international community as one that meets the criteria to be legally called a State. To prevent any confusion, the Islamic terrorist group that proclaimed the caliphate will be consequently referred to under its former name: ISIS.
1. Article 20 of the Articles on State Responsibility
Article 20 of the ILC Articles on State Responsibility can be seen as a codification of a customary rule that no harm can follow to someone who agreed to the act that harmed him:
volenti non fit injuria.
In this first chapter, the theoretical background of Article 20 of the Articles on State Responsibility for Internationally Wrongful Acts (ASRIWA) [hereinafter: the Articles] will be explored and the different elements will be discussed. The theoretical background of consent will be put in relation to the notion of State sovereignty. Then the International Law Commission’s system of primary and secondary rules will be discussed. Also, the history of the wording and placement will be shortly touched upon. The text of Article 20 will then be broken down into five elements, which will be dealt with separately.
1.1 State sovereignty
Before anything meaningful can be said about the notion of consent, it must be discussed why consent is sometimes needed. Consent for an otherwise wrongful act is derived from the historical idea that States are the highest authorities in the international community.2 The equality of those States is one of the cornerstones in international law.3 It is laid down in the Charter of the United Nations4 and is also recognized by the Montevideo Convention on the Rights and Duties of States.5 As a consequence, States are forbidden to intervene in the internal affairs of other States,6 and the sovereignty of States also means that States have exclusive jurisdiction over their own territory. Other States cannot impose their jurisdiction on other States. The Latin maxim coined for this principle was derived from a decree by Pope Innocent III: Par in Parem Non Habet Imperium.7,8
2 R. Portmann, “Legal Personality in International Law”, Cambridge University Press, Cambridge 2010, p. 84.
3 “The Responsibility to Protect, Report of the International Commission on Intervention and State
Sovereignty”, The International Development Research Centre, Ottawa 2001, p. 8.
4 Article 2(1): The Organization is based on the principle of the sovereign equality of all its Members.
5 Article 4: States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. (…).
6M. Kinacioğlu, “The Principle of Non-Intervention at the United Nations: The Charter Framework and the
Legal Debate”, Perceptions Journal of International Affairs, Summer 2005, p. 16.
7 Equals do not have authority over one another.
8 Y. Dinstein, “Par in Parem Non Habet Imperium“, Israël Law Review, Volume I, no. 3, 1966, p. 407; X.
Yang, “State Immunity in International Law”, Cambridge University Press, Cambridge 2012, p. 51; ECHR Fogerty v. United Kingdom, (App. No. 37112/97) Judgement 21 November 2001, para. 34.
The sovereignty and equality of States was restated more recently in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:9
“All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.
In particular, sovereign equality includes the following elements: a. States are judicially equal;
b. Each State enjoys the rights inherent in full sovereignty;
c. Each State has the duty to respect the personality of other States;
d. The territorial integrity and political independence of the State are inviolable;
e. Each State has the right freely to choose and develop its political, social, economic and cultural systems;
f. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.”
From the equality of States among each other in the international community follows that that a State can be held responsible for a breach of international law vis-à-vis another State.10 An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both.11
1.2 Primary and secondary rules
The ILC makes a clear distinction between two forms of rules of international law: primary rules and secondary rules.12 The primary rules impose obligations on States and other international entities to either do something or to refrain from doing something. A clear example of a primary rule is the prohibition of the use of force:
9
General Assembly Resolution 2625 (1970), A/Res/25/2625.
10 Article 1 of the Articles reads: “Every internationally wrongful act of a State entails the international
responsibility of that State.”
11 ILC Yearbook 2001, Vol II, part 2, p. 32, para 1. 12
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”13
Secondary rules govern the consequences of not abiding to a primary rule. Breaching a primary rule of international law is usually regarded as an internationally wrongful act. The ILC observes that breaching a primary rule of international law however is not necessarily the same as being internationally responsible. In the course of drafting the Articles, the ILC established its view that “it would be incorrect to regard the expressions “circumstances precluding responsibility” and “circumstances precluding wrongfulness” as mere synonyms. Such an idea would be considered valid only by those who define a wrongful act in terms of the responsibility resulting from that act or (…) who characterize an act as wrongful only because the law attaches responsibility to the act in question.”14
The ILC then realized that defenses against a claim of responsibility for breaching a primary rule of international law could be defenses against the actual wrongfulness of that particular act instead of defenses against the primary rule of international law itself.15 This view was also adopted by the International Court of Justice in the Gabčíkovo-Nagymaros Project case.16
For this reason the ILC drafted chapter V of the Articles to contain articles precluding wrongfulness of an act that otherwise would result in international responsibility. Chapter V lists six circumstances that could preclude wrongfulness: consent, self-defense, countermeasures, force majeure, distress and necessity. They are listed in Articles 20 - 25 ASRIWA. For the purpose of this paragraph, only Article 20 will be discussed further.
1.3 From Draft Article 29 to Article 20.
Article 20 of the current Articles started as Article 29 of the Draft Articles on State Responsibility, it was adopted by the ILC in 1979.17 The original text was:
13
Charter of the United Nations, Article 2(4).
14 ILC Yearbook 1979, Vol. II, part 1, p. 27, para 50.
15 ILC Yearbook 1973, Vol. II, p. 176, para 12.
16Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, p. 7, para 48. 17
1. The consent validly given by a State to the commission by another State of a specified act not in conformity with an obligation of the latter State towards the former State precludes the wrongfulness of the act in relation to that State to the extent that the act remains within the limits of that consent.
2. Paragraph 1 does not apply if the obligation arises out of a peremptory norm of general international law. For the purposes of the present articles, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
This provision can be seen as a codification of a customary rule that someone who agreed to a certain course of action cannot claim damages afterwards. It is parallel to an old defense from Roman law: volenti non fit injuria.18
The principle that no one can claim damages for actions that he agreed to is uncontested and has been confirmed by the ICJ.19 While discussing this article, the ILC noted that “the consent of the injured State to an act directed against it, which would otherwise be an internationally wrongful act, thus precluded the wrongfulness of that act. That fundamental principle had never been placed in doubt in international jurisprudence or in State practice.”20 Not surprisingly, consent as a circumstance precluding wrongfulness has been involved in several cases before the International Court of Justice, but the ICJ never mentioned Article 20 explicitly. One of the most notable cases in which the Court did touch upon the notion of consent is the Armed Activities case.21 The Court discussed the circumstances in a highly factual manner and came to the following conclusion:
“It seems certain that from mid-1997 and during the first part of 1998 Uganda was being allowed to engage in military action against anti-Ugandan rebels in the eastern Congo by President Kabila when he came to power in May 1997. The DRC has acknowledged that ‘Ugandan troops were present on the territory of the Democratic Republic of the Congo with the consent of the country’s lawful government’. It is clear from the materials put before the
18 “To the consenting, no injury is done”. 19
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). I.C.J. Reports 1986, p. 14, para 246.
20 ILC Yearbook 1979, Vol. I, p. 32, para 29.
21 Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), ICJ Reports
Court that in the period preceding August 1998 the DRC did not object to Uganda’s military presence and activities in its eastern border area.”22
Although the principle is uncontested, the inclusion of this provision in the Articles was not. During the second reading in the ILC, some of the countries’ commentaries to then Article 29 were discussed. The main objections that were raised were the ambiguity of the notion that consent had to be validly given and the practicality of including a reference to peremptory norms in the second paragraph. The Articles on other circumstances precluding responsibility had similar paragraphs on peremptory norms. The ILC chose to remove those paragraphs from the separate Articles and included a general referral to peremptory norms in Article 26. Article 26 excludes the application of any of the other Articles in Chapter V to an act of a State that is not in conformity with an obligation arising under a peremptory norm of general international law. The questions regarding the validity of consent would be dealt with in the commentaries.
Also a discussion arose whether it was even necessary to include consent as a separate provision in the Articles. The fundamental question in this discussion was whether the lack of consent would be part of the primary rule that a State had breached. If a State breaches a rule in which a lack of consent is an element, there is no need for a secondary rule dealing with consent, because the lack of consent has already been established. The Special Rapporteur, James Crawford, was of the opinion that consent should be part of the primary rule and he therefore proposed to delete then Article 29.23 He wrote:
“Article 29 dealt with consent validly given as a circumstance precluding wrongfulness. In many cases, consent of a state, given in advance of an act, is sufficient to legalize the act in international law, for example, consent to overflight over territory, etc. In other cases consent given after the event may amount to a waiver of responsibility, but will not prevent responsibility from arising at the time of the act. Thus, either consent is part of the defining elements of the wrongful act, or it is relevant in terms of the loss of the right to invoke responsibility. In neither case it is a circumstance precluding wrongfulness, and accordingly Article 29 has been deleted.”24
22 Ibid., para 45.
23 ILC Yearbook 1999 Vol. II, part. 1, p. 63, para 243. 24
Crawford argued that the exception of responsibility in case of valid consent can be implicitly read into a primary norm.25 The ILC, however, chose to deal with all six circumstances precluding wrongfulness in a consistent manner.26 Thus, a separate article on consent was to be included.27 In the text that was adopted in 2001, Article 29 reappeared as Article 20 in its final form.
1.4 Five elements
“Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”28
Above, the main elements of Article 20 are emphasized; below I will discuss those elements. In the commentaries to draft Article 29, Roberto Ago wrote that “consent of the State must be valid in international law, clearly established, really expressed (which precludes merely presumed consent), internationally attributable to the State and anterior to the commission of the act to which it refers.”29 Crawford specified this comment further in the commentaries to Article 20:
“Consent must be freely given and clearly established. It must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked. Consent may be vitiated by error, fraud, corruption or coercion.”30
From these descriptions, certain different elements can be derived. Firstly, consent must be valid under international law, secondly it must be given by a state, thirdly it must be given in relation to a specific act and the act that follows must stay within the given limits, fourthly consent cannot be presumed, it must be actually expressed and lastly the act that consent is given to must not be completed yet. In the next paragraphs, each of those elements will be discussed.
25
Similarly: D. Wippman, “Military Intervention, Regional Organizations, and Host-State Consent”, Duke Journal of Comparative and International Law, Vol. 7, 1996, p. 210.
26 R. Rosenstock, “The ILC and State Responsibility”, The American Journal of International Law, Vol. 96,
2002, p. 792; See for a critical note on that choice: V. Lowe, “Precluding Wrongfulness or Responsibilty: A Plea for Excuses”, European Journal of International Law, Vol. 10, no. 2, 1999, p. 405 - 411.
27 Yearbook 1999, Vol. I, p. 280, para 39.
28 Article 20 ASRIWA, emphasis added.
29 ILC Yearbook 1979, Vol. II, part 2, p. 112, para 11. 30
1.4.1 Valid in international law
Firstly, consent has to be valid. The ARSIWA however does not go into great detail as to describe what rules apply to the validity of consent. The commentaries state that “whether consent has been validly given is a matter addressed by international law rules outside the framework of State responsibility.”31 Although the ASRIWA are silent on what exact rules should be applied in order to assess the validity of a given consent, the commentaries provide a range of indicators32 that can be identified as circumstances that will render consent invalid. Since Article 20 explicitly states that the given consent must be valid, a fault among the lines of any of these indicators will make the consent invalid. In every case, the circumstances will have to be assessed on a factual basis to establish whether the consent is invalid.
1.4.1.1 Jus cogens and IHL
Before the validity of a given consent comes into question, it must first be assessed whether the State could even validly consent to the relevant acts. Although States are the highest entities in the international arena and they are free to choose to be bound to Treaties, general logic dictates that some rules are by their nature applicable to all. Such peremptory norms are defined as norms of general international law that are accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.33 Together they are the rules of jus cogens.34,35
Jus cogens therefore prevents States from consenting to otherwise wrongful acts when the
consenting States itself would not be allowed to carry out the act. States can simply not confer the authority to carry out certain acts to another State when they had no authority to carry out the act themselves. This is a principle in international law that has been in force since Roman law and there are two Roman maxims that relate to it: nemo dat quod non habet36 and nemo
plus iuris transferre potest quam ipse habet.37,38
31 Idem, para 4. 32
Idem.
33 This is the most accepted definition for jus cogens. It is introduced in Article 53of the Vienna Convention.
34 Affef Ben Mansour, “Circumstances Precluding Wrongfulness in the ILC Articles On State Responsibility:
Consent”, in: J. Crawford, A. Pellet, S. Olleson, K. Parlett (Ass.) (eds), “The Law of International Responsibility”, Oxford University Press, Oxford 2010.
35 See however U. Linderfalk, “The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You
Ever Think About the Consequences?”, The European Journal of International Law, Vol. 18, no.5, p. 853 for a plea that there is no correct definition for jus cogens.
36
No one can give what he does not have. Also called the nemo dat-rule.
37 Nobody can transfer more rights than he has himself. Also called the nemo plus iure rule.
38 B.A. Boczek, “International Law: A Dictionary”, Scarecrow Press, Lanham 2005, p. 210; O. Elias and C.
Lim, “‘General principles of law’, ‘soft’ law and the identification of international law”, Netherlands Yearbook of International Law, Vol. 28, December 1997, p 31.
Since a State does not possess the right to act against the rules of jus cogens, the nemo dat-rule and the nemo plus iure-dat-rule make it impossible for State to consent to another State to commit an otherwise wrongful act that would constitute a breach of jus cogens. Any consent of that nature is therefore invalid.
In the Draft Articles, this mechanism was laid down in a second paragraph to Draft Article 29. Similar paragraphs were added to other provisions that would preclude the wrongfulness of a State’s act. For economic reasons, the ILC opted for a general clause in Article 26 of the Articles.39 This provision is applicable to the entire chapter of provisions precluding wrongfulness and that made the second paragraph of Draft Article 29 superfluous.
Although this limitation of States’ capability to consent to otherwise wrongful acts is logical, the applicability is sometimes uncertain. This is the result of a lack of clarity regarding what rules constitute jus cogens. At this point only a couple of rules are definitely accepted as being
jus cogens, those include the prohibition of torture, slavery and genocide.40 Any consent by a State to another State to commit those acts will therefore be invalid.
In any conflict, parties have to adhere to rules of International Humanitarian Law (IHL). A State can therefore not validly consent to acts by another State that violate IHL rules. The most important rules of IHL are the principles of distinction, proportionality, humane treatment and protection.41
1.4.1.2 Other factors
When the rules of jus cogens do not prevent a State from validly consenting to acts by another State, some other factors might invalidate the given consent.
The agent or person who gave the consent was authorized to do so on behalf of the State.
The question that needs to be answered here is whether the official who gave consent was actually authorized to give this consent. In some cases, this assessment is more difficult than in others. Certain officials are by virtue of their function authorized to give consent. The 1969 Vienna Convention on the Law of Treaties [hereinafter: the Vienna Convention] names the Head of State, the Head of Government and the Minister of Foreign Affairs as officials that
39 “Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an
obligation arising under a peremptory norm of general international law.”
40 A. Abass, “Consent Precluding State Responsibility: A Critical Analysis”, International and Comparative Law
Quarterly, Vol. 53, no. 01, 2004, p. 211.
41 T.D. Gill and D. Fleck (eds), “The Handbook of the International Law of Military Operations”, Oxford
represent their State.42 Consequently those officials do not have to produce full powers to be able to give consent.43 However logical this might seem, it can provide undesired outcomes in certain cases. In some States, the President functions both as Head of Government and as Head of State. In those cases consent can be given by either the President or the Minister of Foreign Affairs.44 In some States a Monarch is the official Head of State, but powers that are actually invested in the Monarch can be limited by the Constitution.45 In those cases, consent by the Monarch outside his competences may be invalid. In practice only the Head of Government and the Minister of Foreign Affairs can diplomatically represent the State.
There also is a more subjective part: in case the official who gave consent was not authorized, did the acting State know or should it have known about this lack of authority?
In summer 2014 a high-ranking Iraqi regional official claimed to have made a deal with US officials about military support against ISIS insurgents. He said that upon his request the US had promised to help.46 Was this official in his capacity as Governor of a province authorized to make such a deal with the United States?
A similar case arose in 1960 when Belgian troops conducted operations in the Republic of Congo. Belgian troops had entered a province of Congo at the request of the provincial authorities who were in a conflict with the central government. The issue was discussed in the Security Council where the Belgian representative argued: “We shall be told that authorization should have been given by the Central Government, not by the provincial government. But in the state of anarchy at present existing in the Congo, is it possible to refuse assistance to the lawful, constitutional head of a provincial government constituted in accordance with the fundamental law of the Congolese State?”47
To establish who has the authority to give consent to a breach of a certain rule will depend on the nature of that rule and to what extend the breach is intrusive to a State’s sovereignty. Every instance has to be assessed on the basis of the specific facts of the case. In both instances mentioned above, it can be said that consent was given by the wrong authority.
42 Article 7(2)(a) Vienna Convention.
43
Article 2(1)(c) states that “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.
44
Article 226 of the Constitution of Venezuela reads: The President of the Republic is the Head of State and of the National Executive, in which latter capacity he directs the action of the government.
45 See Article 42(2) of the Dutch Constitution and Section 13 of the Danish Constitution.
46 Al Arabiya News, “Governor of Iraq’s Anbar province calls on U.S. to help against ISIS”, 14 August 2014.
47
This indicator is closely linked to the element ‘by a State’. See paragraph 1.4.2 for a discussion of the problems that could arise in that respect.
The consent was not vitiated by coercion or some other factor.
The validity of consent can be disputed if the State that gave its consent was influenced by one or more of four factors: error, fraud, corruption or coercion. Again, the ASRIWA do not go into detail on the meaning of those four factors, other than that the commentaries mention the principles concerning the validity of treaties as relevant guidance. These principles are laid down in the Vienna Convention. The four factors that can vitiate the consent by a State are dealt with in Articles 48 - 52 of the Vienna Convention. The four factors will be discussed briefly.48
It is, however, important to note a major difference between the application of these rules in respect of the conclusion of Treaties and to their applicability towards consent for otherwise wrongful acts. When States enter into a Treaty with another State, mutual rights and obligations can be conferred. For a State to leave a Treaty, it needs to follow the agreed procedure, usually the same way as the Treaty was entered into. Where it comes to consent, the transfer of rights is one way only. Before a State gives consent to another State to carry out certain acts, the latter has no right to carry out the act, unless other circumstances precluding responsibility apply. Consequently, the State giving consent, can revoke its consent at any time and can do so in any way it sees fit. So where there is a formal necessity to introduce these factors in the field of Treaty-making, this necessity in the field of consent for otherwise wrongful acts is for diplomatic reasons at best.
Article 48: Error
Error relates to a mistake regarding the factual situation that was an essential basis for giving consent. A State can consent to an otherwise wrongful act by another State on the presumption that that act is critical for the survival of a part of its population. When it turns out that the population was not in danger, the State can invoke the error as a factor that invalidates the consent. Another example can be construed along the lines of the Savarkar case.49,50 France had -although implicitly- consented to the arrest of Savarkar by British personnel on French territory. This consent would have been erroneous if Savarkar had fled to
48 For a more complete discussion, see: M.E. Villiger, ‘Commentary on the 1969 Vienna Convention on the Law
of Treaties’, Nijhoff Publishers, Leiden 2009.
49 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, at pp. 252–255 (1911).
50
Switzerland or died before France gave its consent because that would have constituted a clear mistake regarding the factual situation of the whereabouts of Savarkar. In these examples, the factual mistake was critical to making the decision to give consent. Should there be a mistake about circumstances that are less essential to the case, then that error cannot be grounds for invoking the invalidity of the consent.
If a State was under the influence of an error, the given consent is voidable. The State has to actively seek invocation of the error. A successful invocation of an error renders the given consent invalid. The situation has to be repaired into the state before the otherwise wrongful act.
Article 49: Fraud
Like an error, fraud leads to a mistaken impression of the facts, but unlike in case of an error it is the consequence of a willful deception by another party or parties.51
The Vienna Convention is intentionally vague regarding the exact meaning of fraud. The ILC concluded that it would suffice to formulate the general concept of fraud applicable in the law of treaties and to leave its precise scope to be worked out in practice and in the decisions of international tribunals.52
Fraud can be invoked as a ground for invalidating a State’s consent. The fraud has to be proved by the State invoking it and it must be invoked before the State acknowledges its intention to be bound. In relation to a treaty this acknowledgment can have the form of a ratification. When dealing with consent to an otherwise wrongful act, the acknowledgment can consist of actual cooperation with the State carrying out that act.
A fraud renders the consent voidable, the victim State has to invoke the fraud as grounds for invalidation. The result of a successful invocation of fraud in relation to consent to an otherwise wrongful act is that the act was never consented to and was wrongful from the beginning.
Article 50: Corruption
Again, the Vienna Convention does not specify the meaning of corruption. It is safe to say that for example bribery qualifies as corruption. When a negotiating official of a State is corrupted into giving consent, the State may invoke this corruption afterwards as a ground for
51 W. Gehr, “Application of the Principles of Free Consent and Good Faith with Regard to the Termination of
Treaties”, http://www.walter.gehr.net/defects.html, [visited 01-05-2015 via:
http://web.archive.org/web/20081201081651/http://www.walter.gehr.net/defects.html].
52
invalidation of its consent. The State has to invoke the corruption before it is acting according to the given consent, otherwise the other Party or Parties can presume the State intends to consent after all.
Corruption does not render the consent void. As with fraud, the victim State may invoke the corruption of its agent as grounds for invalidating the consent. A successful invocation of corruption in relation to consent to an otherwise wrongful act means that the consent must be regarded as if it was never given.
Article 51 and 52: Coercion
Coercion can have two forms. A State’s representative or the State itself can be coerced into giving consent to an otherwise wrongful act, they can occur separately or in conjunction with one another. In the former, a State’s representative can be coerced in many different ways, none of which need to be described in detail. The victim State can invoke the coercion and the results will be along the line of those of corruption. The only major difference is that in this case the consent is null and void. This means that even subsequent ratification does not repair the situation.
In the latter, a State is coerced if it has consented to an otherwise wrongful act under threat or because of the use of force in violation with the principles laid down in the UN Charter.53 This is a reference to Article 2(4) of the UN Charter. Apart from this explicit reference to the prohibition of the use of force, no coercion practices are mentioned. An a contrario reasoning could lead to the conclusion that other ways of coercion are not prohibited. This is somewhat remarkable since there are obviously many more ways to coerce a State into giving consent for otherwise wrongful acts. The drafters of the Vienna Convention noted this and drew up a declaration condemning the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent.54 This declaration is broadly formulated; under certain circumstances, regular diplomatic pressure can be regarded as economic or political pressure to act in violation of a State’s sovereignty or free consent.55 The declaration therefore has to be seen in
53 Article 52 Vienna Convention.
54 Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties,
annexed to the Final Act of the United Nations Conference on the Law of Treaties (UN Doc. A/CONF.39/26).
55 See for example the diplomatic pressure on Greece to perform structural economic reforms, under the threat of
certain bankruptcy when it does not meet the demands. “Greece bailout: Europe turns up pressure as cash runs out”, 22-04-2015, http://www.independent.co.uk/news/business/news/greece-bailout-europe-turns-up-pressure-as-cash-runs-out-10193996.html [11-06-2015].
light of the era in which it was drawn up. At the time, the process of decolonization was at its height with main portions of Africa gaining independence. The new States were worried that the former colonizing powers would use their economic and political power to coerce them into consenting to disadvantageous Treaties.56
Coercion was clearly established in the case of the Austrian Anschluss to 1938. The Nuremberg Tribunal first established that the consent that Nazi-Germany relied upon to justify the occupation of Austria had actually not been given because the relevant telegram had not been sent. And even if the telegram had been sent, then the consent would have been coerced and therefore not valid. The Tribunal concluded that in the end the German threat of an armed occupation in case of any resistance was the ultimate factor behind the Anschluss.57 Similar tactics were used in the case of the seizure of Czechoslovakia. Nazi-Germany threatened to completely destroy Prague if President Hacha would not sign a document consenting to the incorporation of Czechoslovakia into the Third Reich.58
Coercion renders the consent void. The result of an invocation of coercion of a State is the nullity of the consent. This coercion can be invoked by any of the Parties that are involved, but since consent for an otherwise wrongful act is always directed at one other State, the State invoking the coercion will always be the victim State.
1.4.2 By a State
Consent has to be given by a State. This means that a State must use some form of official or way of communication that makes it clear that the State itself gave its consent. The starting point of determining whether this is the case can be found in Article 4 of the Articles:
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
56 See also General Assembly Resolution 2131 (1965), A/Res/20/2131.
57 Trial of the Major War Criminals Before the International Military Tribunal, Judgment of 1 October 1946, p.
192 - 194.
58
Based on this article, it would seem possible that any act of any Government official can be attributed to a State including giving consent to an otherwise unlawful act. However, the commentary to Draft Article 29 already specified that consent must be internationally attributable to the State. The consent must emanate from an organ whose will is deemed, at the international level, to be the will of the State, and the organ in question must also be competent to express that will in the specific case.59
Furthermore, the commentaries to Article 20 explicitly exclude a simple attribution of conduct of State officials or organs to the central Government on the basis of Article 4.60 This is in line with the opinions to the Draft Articles given by several Governments, most notably that of the United Kingdom:
“The United Kingdom, however, considers that there is no necessary identity between the category of persons whose acts are attributable to the State and the category of persons competent to bind the State. Minor officials, for example, belong to the first but not the second category.”61
As discussed above, the authority of a regional Governmental body to consent to the stationing of troops on the territory of a State can be questioned. In order to establish whether the consent was actually given by the State, the circumstances of the case have to be assessed.
1.4.3 Actually expressed
Consent can be given explicitly or implicitly. Explicit consent can come in the form of written consent or an invitation. In the fall of 2014, the Iraqi Government explicitly requested the United States for assistance in their struggle against ISIL insurgents.62
In some cases consent has been given for ongoing or frequent acts by way of a treaty. The Convention on International Civil Aviation63 is an example of such ongoing consent. It regulates civil aviation and inter alia provides for free passing of a State’s airspace for civil aircrafts without prior permission.64
59 ILC Yearbook 1979, Vol II, part 2 p. 113, para 15.
60 J. Crawford, ‘The International Law Commission’s Articles on State Responsibility, Introduction, Text and
Commentaries’, Cambridge University Press, Cambridge, 2002, p. 163.
61 Document A/CN.4/488 and Add. 1–3, p. 131.
62 Excerpt from the annex to the letter dated 20 September 2014 from the Permanent Representative of Iraq to
the United Nations addressed to the President of the Security Council (S/2014/691): “It is for these reasons that we, in accordance with international law and the relevant bilateral and multilateral agreements, and with due regard for complete national sovereignty and the Constitution, have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent.”
63 Signed in Chicago on December 7th 1944.
64
Implicit consent can exist when the consent was not given in writing or in any other explicit form. The Savarkar65 case shows how a State can give implicit consent to an otherwise wrongful act. Savarkar (an Indian national) had fled British captivity on board a ship on route to India while docked in Marseille. He was arrested by a French police officer and returned to the ship with the help of some British officers who had come ashore. After the British left for India, the French Government stated that the British authorities had committed a wrongful act by apprehending a fugitive on French territory without its consent. The case was presented for an Arbitral Tribunal in The Hague that concluded that “[under] the circumstances (…) the British Police might naturally have believed that the [French] brigadier had acted in accordance with his instructions, or that his conduct had been approved.”66
The circumstances made the British officers genuinely believe that the French policeman was acting with the approval of his authorities. The French Government had therefore implicitly consented to their actions on French territory.
There is a fine line between implicit consent and merely presumed consent. The commentaries refer to a presumed consent on the basis that a State would have consented if it had been asked. The test for establishing a presumed consent seems to be that the circumstances do not justify genuine believe that consent has been given (Savarkar) and the acting State nonetheless has not asked for consent. Implicit consent will then be very difficult to obtain.
1.4.4 Given act and within the given limits
When a State has consented to certain acts by another State, the latter has to stay within the given limits of the consent to preclude the wrongfulness of its actions. As discussed before, the Chicago Convention precludes the wrongfulness of overflight by civil aircrafts, but it does not preclude wrongfulness of overflight by military aircrafts. For military aircrafts, special consent has to be obtained because it falls beyond the given limits of the consent obtained via the Chicago Convention.
These limitations are indicated by the words “given act” as well as by the phrase “within the limits of that consent”.67
In its letter to the President of the Security Council noted above, the Iraqi Government expressed that they had “requested the United States of America to lead international efforts
65 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, (1911).
66 Idem, p. 254. 67
to strike ISIL sites and military strongholds, with our express consent.”68 This means that any other actions by the United States falls outside the limits of this consent and is not precluded from wrongfulness on this basis.
The words “given act” also indicate that consent can only be given to otherwise wrongful acts that are concretely indicated. Consent cannot have the open ended character that is regularly used in Resolutions of the UN Security Council. The “all necessary actions” formula would be too little concrete to be used in relation to consent.
It is important to note that a consenting State can impose conditions on giving consent to an otherwise wrongful act. Non-compliance with these conditions, will not automatically render the acts wrongful. An example could be that the Iraqi Government will require the United States to pay rent for the use of airbases that they need to carry out strikes against ISIS. If the United States stop to pay this rent, the non-compliance is a wrongful act in itself but it does not affect the initial consent to carry out the strikes.
1.4.5 Timing
The commentaries to Article 20 are very clear in the topic of timing. Consent can be given before the otherwise wrongful act is carried out. It could also be given during the act, but it cannot be given afterwards.69
While consent beforehand is the most desirable option, consent during the act might in some cases be unavoidable due to an emergency situation. Especially in case of humanitarian aid, a State might not want to wait until the official consent has been given before it starts rescuing victims of a natural disaster. It is however possible that a State misuses this possibility. For example, if a State starts military operations against a terrorist group on the territory of another State and then obtains consent for the operation on the basis that they are already there anyway, it can be construed that this consent was not entirely freely given. The consenting State might feel itself being coerced (see para 1.4.1.2) into giving consent.
Consent afterwards has the character of a waiver or acquiescence. This is dealt with in Article 45. A waiver is an expressly stated wish of an injured State that it will not seek to hold the acting State responsible or that it waives the wrongfulness of the act entirely.70 For a waiver to be effective, it has to be validly given. The same rules on validity apply as on giving consent.
68 Annex to the letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations
addressed to the President of the Security Council (S/2014/691).
69 ILC Yearbook 2001, Vol II, part 2, p. 73, para 3. 70
2. A case study of Article 20 of the ILC Articles in Iraq, Syria and Pakistan.
In this chapter, I will apply the rules regulating consent on the military actions against ISIS in Syria and Iraq and on the drone strikes that are carried out in Pakistan. A short introduction into the background of those conflicts will put both military campaigns in perspective.
2.1 Are the actions on another State’s territory wrongful under international law?
As we have seen in the previous chapter, States can consent to acts by another State that would otherwise be wrongful. Therefore the wrongfulness of those acts needs to be established before consent is needed, in this case the wrongfulness of the air strikes on the territory of Iraq, Syria and Pakistan. The Articles provide that there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law and constitutes a breach of an international obligation of the State.71 The Articles define a breach of an international obligation as an act of a State that is not in conformity with what is required of it by that obligation.72 As discussed in the previous chapter (para 1.1) State sovereignty and the principle of non-intervention require States to refrain from any actions on the territory of another State. An airstrike on the territory of another State constitutes breach of that obligation.
The rules of attribution in The Articles are set out in Article 4.73 Any actions by a State organ to that State, whatever the character of the organ and whatever its position. This view was also adopted by the ICJ in the Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights case. The Court noted that
“[a]ccording to a well-established rule of international law, the conduct of any organ of a state must be regarded as an act of that state.”74
The military organization might well be one of the most classic of State organs. The actions of military personnel are attributed to States on the basis of long standing customary rules of
71
Article 2 ASRIWA.
72 Article 12 ASRIWA.
73 See para 1.4.2
74 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human
international law.75,76 The air strikes conducted by the several air forces participating in the coalition against ISIS can be legally attributed to their respective States. 77
2.2 Did Syria and Iraq validly consent to the wrongful acts that are carried out by Western and Middle-Eastern powers against ISIS?
Since the focus of this case study is on the military campaigns against ISIS, the civil war in Iraq that has been going on in Iraq from 2004 onwards is not part of this discussion.78 Following the Arab spring that unfolded in North-Africa and parts of the Middle-East in 2011, similar protest movements started to appear in Syria. The earliest reports of protests were made in January 2011, violence started some two months later with the regime’s strong response to protests against President Bashar al-Assad.79 This sparked a rebellion and the country subsequently descended into a civil war.80 In the course of the conflict, different Syrian rebel forces where loosely tied to each other and sometimes also fighting between them occurred. Many of the Syrian rebel factions were poorly organized, over time, three major resistance groups remained. Firstly the Free Syrian Army (FSA), it consists of several smaller groups that have united themselves. The FSA is the most moderate group in the conflict, it has no outspoken religious goals and most Western powers say to support this group, the most notable action came from France when it recognized the FSA’s political wing, the Syrian National Council (SNC), as the legitimate representative of Syria.81,82 Secondly, the Kurdish Yekîneyên Parastina Gel (YPG), have succeeded in capturing or holding on to parts of the territory that they consider to be Kurdistan. The YPG actively battles both the Syrian Government as ISIS with the support of Western powers. Lastly, ISIS
75 Article 3 of the 1907 Hague Convention (IV); Article 91 Additional Protocol I
76 J. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law, Volume I, Rules”,
Cambridge Uniersity Press, Cambridge 2009, p. 530.
77
See for a discussion of attribution by the ICJ: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States of America), Merits, Judgment, I.C.J. Reports 1986, para 115; and by the ICTY: ICTY, Tadic case, Judgement on Appeal, 15 July 1999, paras. 137 - 145
78 As of UN Security Council Resolution 1546 (S/Res/1546 (2004)), the ICRC classified the situation in Iraq as a
non-international armed conflict. ICRC: “Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority”, 05-08-2004, https://www.icrc.org/eng/resources/documents/misc/63kkj8.htm [08-06-2015].
79 P. Iddon, “A recap of the Syrian crisis to date”, 30-07-2012, http://www.digitaljournal.com/article/329590
[08-06-2015].
80
See for a step-by-step guide: “Syria: The story of the conflict”, 12 March 2015,
http://www.bbc.com/news/world-middle-east-26116868 [18-06-2015].
81 B. Crumley, “France Recognizes Syria’s Opposition—Will the West Follow Suit?”, Time Magazine, 14
November 2012, http://world.time.com/2012/11/14/france-recognizes-syrias-opposition-will-the-west-follow-suit/ [18-06-2015]; The SNC has also on an exceptional basis been invited by the Arab League to take Syria’s seat in 2013.
82 See for reports of the collapse of this group: E. Banco, “Four Years Later, The Free Syrian Army Has
Collapsed”, International Business Times, 14 March 2015, http://www.ibtimes.com/four-years-later-free-syrian-army-has-collapsed-1847116 [18-06-2015].
has been able to form a unified structure out of the many Islamist and fundamentalist groups that were involved in the conflict.83 Over the years before the outbreak of the Syrian civil war, ISIS -as part of Al-Qaeda in Iraq- had already carried out several terror campaigns in Iraq, but the conflict in Syria gave the organization the opportunity to grow and become a more independent organization. As a consequence of this growth, ISIS effectively took over Al-Qaeda in Iraq and Syria. As the successor of Al-Al-Qaeda, ISIS poses a threat to Western interest and frequently abducts and kills foreigners. In June 2014, ISIS had conquered vast pieces of territory in both Syria and Iraq. At that point, the international community realized it had to step in to prevent ISIS from completely overrunning Iraq.84,85
2.2.1 Iraq’s call for assistance
Can the call for assistance by Iraq be regarded as valid consent to the military actions against ISIS? An assessment of the five elements in Article 20 discussed in the first chapter can provide clarity whether the recent call for assistance by Iraq in their struggle against IS can be regarded as valid consent.
Valid under international law
As we have seen in the previous chapter, some criteria have to be met in order for consent to be valid in international law. Firstly, the consent must not have been given for an act that violates jus cogens. The current military actions against ISIS from the part of Iraq and the US-led coalition do not seem to consist of any of the grave breaches of international law that would amount to a violation of jus cogens. This means that Iraq was in fact allowed to consent to these specific actions. The other indicators also seem to support that Iraq’s consent was valid in international law. Iraq gave its consent by means of a written letter to the UN Security Council that was signed by the Minister of Foreign Affairs. The message of the call
83 For a detailed explanation on the success of ISIS see: L. Napoleoni, “The Islamist Phoenix, The Islamic State
(Isis) and the Redrawing of the Middle East”, Seven Stories Press, New York 2014; A. S. Hashim, “Policy Report - From Al-Qaida Affiliate to the Rise of the Islamic Caliphate: The Evolution of the Islamic State of Iraq And Syria (ISIS)”, Institute of Defence and Strategic Studies (IDSS), Nanyang Technological University (NTU), December 2014.
84 “Hagel Orders Carrier USS George H.W. Bush Into Arabian Gulf”, American Forces Press Service,
Washington, June 14, 2014; A. Wordsworth, “Anti-ISIS coalition has mobilized up to 62 nations and groups”, National Post, September 26, 2014, http://news.nationalpost.com/news/mobilizing-the-world-up-to-62-nations-and-groups-have-joined-coalition-against-isis [9-6-2015].
8585 See for an overview of American diplomatic actions following the use of chemical by the Syrian regime:
for assistance was repeated numerous times in public statements.86 Furthermore, the circumstances do not indicate that there was error, fraud, corruption or coercion involved. The conclusion therefore must be that the Iraqi call for assistance was valid under international law.
By a State
The call for assistance by Iraq can be attributed to the State of Iraq because it was made in an official manner by Minister of Foreign Affairs. Based on the Vienna Convention, this official is one of three that by virtue of their position are capable of representing their State.
Actually expressed
The consent of a State for an otherwise wrongful act must be actually expressed, other States may not presume the State would consent with their actions. The Iraqi Government wrote the following to the UN Security Council:
“It is for these reasons that we, in accordance with international law and the relevant bilateral and multilateral agreements, and with due regard for complete national sovereignty and the Constitution, have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent.” [emphasis added]
Given act
With reference to the citation above, it can be established that the Iraqi Government has set limits to the actions that it consents to. It requests the international community to strike sites and military strongholds. Other operations that would fall outside that scope are clearly not consented to.
Before or during the act
The official letter from the Minister of Foreign Affairs to the UN Security Council came in on September 22nd 2014. For many international partners of Iraq, this request was the sign to start helping it in its struggle against ISIS.87 Even before that date, the United States were in a campaign against ISIS and providing humanitarian aid to Iraqi civilians. Those actions were
86
J. Borger and P. Wintour, “Obama vows to destroy Isis's 'brand of evil' as Iraq requests help from Britain”,
The Guardian, 24 September 2014, http://www.theguardian.com/world/2014/sep/24/obama-isis-brand-of-evil-uk-air-strikes-iraq; M. Abbas, “Maliki asks for US help as ISIS expands in Iraq”, 13 June 2014, http://www.al-monitor.com/pulse/tr/security/2014/06/iraq-isis-expansion-mosul-maliki-us-assistance.html [17-06-2015].
87
based on separate requests from the Iraqi Government to the United States88 and on an earlier formal request for limited action by the international community.89 In both cases the consent was given before the actions took place so the timing of giving consent does not invalidate the consent.
Since all of the criteria for a valid consent are met, the Iraqi Government’s call for assistance must be regarded as a consent precluding wrongfulness as described in Article 20. In fact, this example may be a blueprint of how the ILC had envisaged a case of consent as a circumstance precluding wrongfulness.
2.2.2 Is the lack of protest by Syria a form of consent?
The Syrian Government has not given any public statement in which it consents to air strikes against ISIS on Syrian territory. In fact, the Syrian Government has indicated that “any strike which is not coordinated with the government will be considered as aggression.”90 This message can only be understood as withholding consent for air strikes on Syrian territory. This has not deterred some of the coalition forces from expanding the airstrikes from Iraq to Syria. The campaign against ISIS now includes strikes on Syrian territory but the Syrian Government has not formally protested or condemned the strikes. Can this silence be regarded as valid consent? Since Syria has not openly consented to the airstrikes, any consent that can be construed must be implicit. The hypothesis must be that Syria implicitly consented and as with the case of the call for assistance by Iraq, this hypothesis will be tested by considering whether it fulfills the five criteria that were identified in paragraph 1.4.
Valid under international law
Consent can only be valid under international law if Syria was allowed to consent to the specific actions that are carried out. As was established above, the airstrikes against ISIS in Iraq do not breach the rules of jus cogens. There is no apparent reason why the airstrikes against ISIS in Syria should be regarded differently. The other indicators are less clear then with the case of Iraq’s call for assistance. Firstly, it is difficult to obtain certainty as to who decided not to condemn the airstrikes, therefore an assessment of the authorization of the
88 Statement by the President, 7 August 2014,
https://www.whitehouse.gov/thepressoffice/2014/08/07/statementpresident [06-06-2015].
89 UN Document S/2014/440.
90 The Guardian, “Syria offers to help fight Isis but warns against unilateral air strikes”, 26 August 2014,
http://www.theguardian.com/world/2014/aug/26/syria-offers-to-help-fight-isis-but-warns-against-unilateral-air-strikes [18-06-2015].
agent who gave Syria’s consent cannot be made as easily as with Iraq. It is however clear that the Syrian Government is involved on the highest level since the remarks quoted above regarding the coordination of airstrikes were made by the Minister of Foreign Affairs. It seems safe to conclude that the decision not to condemn the airstrikes is made on the same level. That indicates that the agent or person who implicitly consented to the airstrikes has the authority to do so.
The validity of consent can be vitiated by error, fraud, or coercion. There are no indications that any of these factors played a role in Syria’s decision to remain silent since the airstrikes in its territory began. The conclusion must be that insofar as Syria has implicitly consented to the airstrikes, this consent is valid under international law.
By a State
Following the reasoning above that it was the Minister of Foreign Affairs or an official at a similar level in the Syrian Government that decided not to condemn the airstrikes, that decision can be attributed to the Syrian State.91
Actually expressed
Although Syria has not openly consented to the airstrikes, consent can have been expressed implicitly. As established above, implicit consent exists when the actions of the consenting State lead the acting State to the genuine conclusion that it consents to the actions.92 Merely presumed consent exists when the acting State assumes that the victim State would have consented if had been asked. This poses the question whether the message by the Syrian Minister of Foreign Affairs can be understood as implicit consent to airstrikes against ISIS on Syrian territory. There is a slight ambiguity in the remarks from the Syrian Minister of Foreign Affairs. As stated, any strike which is not coordinated with the Syrian Government will be regarded as an act of aggression. This implies that strikes that are coordinated would be consented to by the Syrian Government. Not surprisingly, the international coalition that carries out strikes at ISIS on Syrian territory has refused to directly coordinate with the Syrian Government. However, President Assad stated that Iraq and other countries sometimes convey a general message to the Syrian Government regarding the airstrikes.93 Although these
91 See para 1.4.1.2. 92 See para 1.4.3.
93 Assad Says Syria Gets Information on Airstrikes Against ISIS, 2 February 2015,
messages do not go into tactical details, the Syrian Government seems to feel itself informed, so some form of indirect coordination does exist.94
It can be argued that if the Syrian Government does not consent to airstrikes on its territory, it should condemn the ongoing airstrikes or even physically try to prevent the airstrikes from repeating. The Syrian Government has largely been silent on the issue, there has certainly not been strong vocal condemnation of the airstrikes. Furthermore, the Syrian army has the capabilities to defend its airspace. Several analyses show that Syria has the possession of surface to air missiles that might be able to defend the airspace against incoming fighter jets carrying out airstrikes on Syrian territory.95 There have been no reports that coalition jets have been shot down by the Syrian army. This indicates an unwillingness to defend its territory against the airstrikes against ISIS on the part of the Syrian Government.
Analogue to the assessment of the facts of Savarkar,96 the factual situation in Syria as described above leads to the conclusion that the international coalition can genuinely believe that the Syrian Government consents to the airstrikes against ISIS.
Given act
Consent must be given for a specific act and that act has to stay within the given limits. Given the communication, and the lack thereof, by the Syrian Government, the implicit consent for airstrikes against ISIS on Syrian territory must be understood as to only include strikes in areas where the Government has no control over its own territory.
Before or during the act
Consent for an otherwise wrongful act can be given before or during that act. The airstrikes on Syrian territory are ongoing,97 the timing is therefore not an element that vitiates the implicit consent by the Syrian Government.
94
Idem.
95 For example: A. H. Cordesman, “Syria’s Uncertain Air Defense Capabilities”, the Center for Strategic and
International Studies, 6 May 2013, https://csis.org/publication/syrias-uncertain-air-defense-capabilities [19-06-2015]; C. P. Atwood and J. White, “Syrian Air-Defense Capabilities and the Threat to Potential U.S. Air Operations”, The Washington Institute, 23 May 2014, http://www.washingtoninstitute.org/policy-analysis/view/syrian-air-defense-capabilities-and-the-threat-to-potential-u.s.-air-operat [19-06-2015].
96 See para 1.4.3.
97 As of June 17th 2015, some 1617 airstrikes have been carried out on Syrian territory. See:
2.3 Has Pakistan validly consented to drones trikes on its territory?
After Al-Qaeda’s attacks on the World Trade Centre and the Pentagon at September 11th 2001, the United States started the so-called global war on terror. Initially, this resulted in a an armed conflict with Afghanistan, but with the defeat of the Taliban there, many Al-Qaeda and Taliban militants fled to the Federally Administered Tribal Area (FATA) region in Pakistan. Since Pakistan is an ally of the United States in the global war on terror and the FATA region is very in hospitable, the US troops could not enter it. In 2004, the Bush administration started using Unmanned Aerial Vehicles (hereinafter: drones) to carry out targeted attacks at Taliban and Al-Qaeda operatives.98 When President Obama took over from Bush, the number of drone strikes was strongly increased.
There is no debate that the use of drones over the territory of another State is in principle a breach of that States sovereignty.99 The US Government claims to have several grounds for justification of the drone strikes, consent of the Pakistani Government being one of those. For the purpose of this paragraph the alleged consent by the Pakistani Government is what will be discussed. As established above, it can be argued that the Syrian Government has implicitly consented to airstrikes on its territory, the situation in Pakistan may well be similar to that. Since the Pakistani Government has never publicly consented to drone strikes, it needs to be discussed whether it has done so implicitly.100
Valid under international law
If Pakistan has implicitly consented to the drone strikes, that consent needs to have been validly given. Pakistan can only validly consent to an otherwise wrongful act as long as it would have legal under international law for Pakistan to carry out that act itself.101 As a consequence, Pakistan can only consent to the drone strikes as long as they are legal under the rules of jus cogens and International Humanitarian Law (IHL) or Human Rights Law (HRL). What rules constitute jus cogens is still part of debate, so far only slavery, genocide and
98 The Bureau of Investigative Journalism keeps detailed track of drone strikes in Pakistan and Yemen. See for
detailed information: https://www.thebureauinvestigates.com/category/projects/drones/drones-pakistan/ [20-06-2015].
99 Commissie van Advies Inzake Volkenrechtelijke Vraagstukken, “Advisory Report on Armed Drones”, The
Hague, July 2013, p. 10.
100 The fact that the US have never officially acknowledged the existence of a drone program and that the
Pakistani Government therefore had nothing to formally consent to, might be of diplomatic relevance. However, the program is widely known and Pakistan did on occasion condemn drone strikes in public so this should not pose a legal burden to consent to the drone strikes.
101 D. Wippman, “Military Intervention, Regional Organizations, and Host-State Consent”, Duke Journal of
torture are firmly accepted as such.102 It needs little discussion that a drone strike -or the drone campaign for that matter- cannot be classified as any of those.
There is however heated debate over whether the drone strikes are a breach of rules of IHL. This debate centers on the question whether there is a non-international armed conflict in the FATA regions. If this is the case, then the drone strikes fall under the rules of IHL. Under this paradigm, drones strikes could be allowable as a targeted killing as long as the requirements of distinction, precaution and proportionality are met.103 If there is no non-international armed conflict in the FATA regions, the IHL rules and HRL rules of a law enforcement paradigm apply. Under these rules, targeted killings are also allowed but only in very exceptional circumstances. Most notably it adds the requirement of strict necessity, thereby imposing extensive restraints on the use of lethal force.104
Based on this assessment, the Pakistani Government can give valid consent for a drone strike, but it has to be decided on a case-by-case basis whether that particular strike meets the relevant criteria.105
Other factors that might vitiate consent need to be considered as well. As was the case with Syria’s implicit consent for airstrikes on its territory, the matter of the drone strikes in Pakistan is dealt with on the highest levels of the Government. It seems highly unlikely to conclude that the Pakistani Government is not involved on the same level with the decision to consent to drones strikes, demonstrated by former Pakistani President Musharraf when claimed to have personally consented to a couple of drone strikes.106 There is no reason to assume that the level at which these decisions are made changed when Musharraf left the Presidential office so the officials involved can still be regarded as having the authority to consent to drones strikes. Consent can also be vitiated by error, fraud or coercion. Of those three, only coercion might have merit. Pakistan reportedly considered to physically defend its territory by shooting a drone down but did not go through with that idea because it would be needlessly provocative.107 This could indicate that the Pakistani Government feels it is pressed into cooperating with the drone strikes since it cannot effectively defend itself from
102 See para 1.4.1.1.
103 T.D. Gill land D. Fleck (eds.), “The Handbook of the International Law of Military Operations”, Oxford
University Press, Oxford 2010, p.288 - 292.
104 Idem, p 281 - 287.
105 See for a categorical denial of the legality of US drones strikes in Pakistan: M. E. O’Connel, “Unlawful
Killing with Combat Drones, A Case Study of Pakistan, 2004-2009”, Notre Dame Law School, Legal Studies Research Paper No. 09-43, 2010, available via http://ssrn.com/abstract=1501144.
106 N. Robertson and G. Botelho, “Ex-Pakistani President Musharraf admits secret deal with U.S. on drone
strikes”, 12 April 2013, http://edition.cnn.com/2013/04/11/world/asia/pakistan-musharraf-drones/ [20-06-2015].
107 A. Entous, S. Gorman and E. Perez, “U.S. Unease Over Drone Strikes”, 26 September 2012,
