A (Scary) Thought Experiment
In light of American forces shooting down a Syrian jet in Syria, and a second Iranian-made drone in Syria, America’s situation appears (in the usual social media hubbub) to be getting sketchier, to say the least. This might not be helped by the White House giving the Pentagon much more say in the day-to-day running of the Coalition operations in Syria, the White House being chronically understaffed and looking less attractive as a career option with every passing day.
The mess of the Syrian civil war needs no introduction, but for law of war types, the war has kicked up a plethora of interesting questions and important issues. Some of them can be slightly odd, like “If I drop a bomb on ISIS in that country, am I at war with that country even though they’re fighting ISIS as well?” Of course, die hard international law folk will quickly point out that there is no war, only varying types of armed conflict (if any). Still, all of this is important because the arguments that a state makes about why it’s okay to shoot down a state’s jet, in its own airspace, could easily be transferred elsewhere, and at any rate tend to run smack into the “states aren’t meant to use force against one another and yes that includes shooting down their goddamn plane” prohibition contained in article 2(4) of the UN Charter. If you’re interested in this, Adil Haque has a good run through of relevant international law over at Just Security, and Bobby Chesney has a good piece on the domestic War Powers issues over at Lawfare.
The importance of the jet shoot-down is that it raises the spectre on international armed conflict, as opposed to the widely recognised non-international armed conflict in Syria. I say “widely recognised”, but who, or what, counts as a party to said armed conflict, and on what basis, is a big can of worms. The big difference here is that the threshold for the existence of an international armed conflict (and thus the applicability of the law of armed conflict/international humanitarian law) is very low. Arguably by attacking targets and supporting Kurdish forces on Syrian territory, Coalition partners might already be in an international armed conflict with Syria (despite them remaining tight-lipped on the issue). Shooting down fighter jets and drones, it seems to me, might also be grounds for one (even though the Americans are calling it an act of collective self defence).
But here’s the interesting question for me: would destroying a Syrian drone be any different to shooting down a manned platform? If not, then how many of those do coalition forces need to destroy to find themselves in an international armed conflict with Syria?
This leads me to a thought experiment. Let’s say State A destroys State B’s drone. If this might lead us to a state of armed conflict, what if the drone is actually operated by State C at the time it’s shot down? Would State A be in an armed conflict with State B, State C, both, or neither? I say this because this works both ways: the MQ-9 Reaper drones flown by the US and the UK can change operational control mid-flight, and Coalition forces are nearing 10k strikes in Syria alone. Given that a shoot-down could be accomplished by any of Syria, Russia, America, the UK, Iran, or Turkey, the consequences arising from that thought experiment are a little scary, for me at least.