The shootdown of the Syrian Su-22, self-defense, and rules of engagement

The recent shootdown of a Syrian Su-22 fighter-bomber by a U.S. Navy F/A-18E Super Hornet is causing some consternation in the legal community because of the assumption that the action was taken solely to defend a third-party, non-state actor “partner,” the Syrian Democratic Forces or SDF.  That assumption is understandable – and may be correct – but it doesn’t seem to necessarily track with everything the media is reporting.

Here’s what the official Coalition announcement (“Coalition Defends Partner Forces from Syrian Fighter Jet Attack”) said about the June 18th incident: “At 6:43 p.m., a Syrian regime SU-22 dropped bombs near [SDF fighters south of Tabqah and, in accordance with rules of engagement and in collective self-defense of Coalition partnered forces, was immediately shot down by a U.S. F/A-18E Super Hornet.”

Over on Opinio Juris Kinga Tibori-Szabó has a post, “The Downing of the Syrian Fighter Jet and Collective Self-Defence.”  In it she discounts the reference to “in accordance with rules of engagement,” and focuses exclusively on the “collective self-defense of Coalition partnered forces.” statement.  She concludes that the “Coalition invoked collective self-defence to protect a ‘friendly’ armed group notwithstanding the fact that such a group does not have the right to invoke self-defence in the first place and request assistance on that basis.”  Essentially, she contends that there can be no “collective self-defense” of non-state actors, only state actors.

Kinga does suggest that state practice may be evolving this norm to permit such actions in defense of non-state forces.  In my view, it already has evolved, at least insofar as armed groups engaged in fights against the Islamic State.  Let’s not forget that in November of 2015 the UN said:

The Security Council determined today that the Islamic State in Iraq and the Levant/Sham (ISIL/ISIS) constituted an “unprecedented” threat to international peace and security, calling upon Member States with the requisite capacity to take “all necessary measures” to prevent and suppress its terrorist acts on territory under its control in Syria and Iraq.

Could one not say that defending those fighting ISIS – state or nonstate – could be a “necessary measure” for the anti-ISIS coalition of Member States?

Anyway, writing in Just Security, Adil Haque has a bit of a different take (“On the Precipice: The U.S. and Russia in Syria”).  He concludes that:

In plain terms, the U.S. may have a legal right to protect non-state partner forces who are exclusively conducting legitimate counter-ISIS operations,” but has no legal right to protect non-state partner forces who are pursuing regime change or other political objectives.  There is no right of collective self-defense of non-state actors, and the right of collective self-defense of other states only justifies measures that are necessary and proportionate means of achieving legitimate defensive aims. (Emphasis in original).

Adil believes that because the SDF has strategic aims beyond simply defeating ISIS, “the mixed motives of the U.S.-led coalition and its non-state partners compromise the legal basis of their military operations.”

I agree with Adil that if the shootdown was primarily in support of an operation pursuing some SDF goal other than fighting ISIS, the legal argument for self-defense would be doubtful.  However, simply because SDF (or any group) may harbor aspirations beyond battling ISIS, that doesn’t mean that at the specific time and place they were defended, the anti-ISIS purpose wasn’t paramount.

In any event, both Kinga’s and Adil’s arguments (as well as Bobby Chesney’s discussion of the domestic law implications) are premised on the idea that the legal rationale was exclusively based on the U.S. defending a “third-party.”  But are we really sure that is all there is to it?  Maybe not.  After all, the announcement says “in accordance with rules of engagement and in collective self-defense of Coalition partnered forces” (emphasis added) which suggests that there was more than one rationale.

This is reinforced by a June 26th report (“General: US Pilots Made the Call to Shoot Down Syrian Aircraft”).  In the article Brig Gen Charles Corcoran discussed three recent shootdowns in Syria: the downing of the Su-22 on June 18th, as well as downings of Iranian-made unmanned aerial vehicles (UAVs) on June 8th and June 20th.  He defended all the actions as self-defense and explained:

In each of the shoot-downs, which involved aircraft from other locations, the U.S. pilots made the call to shoot within the parameters of the rules of engagement, Corcoran said.  In all three cases, “defenseless aircraft” such as tankers and airlift planes left the airspace because of the uncertainty of what the Syrians or Russians would do next, he said.

Importantly, the UAV incident on the 8th was one where Collation forces (including US troops) were fired upon, and the one on the 20th involved a “pro-Syrian regime” UAV in the same area.

What may be a key is Brig Gen Corcoran’s further comment: “If you’re shooting at U.S. forces, we’ll self-defend.”  And there are U.S. forces in Syria: although the Pentagon is no longer saying how many – or where – US troops are located in Syria, the Military Times reported in March that there were “nearly 1,000.”

So consider Corcoran’s mention to “U.S. forces” along with this New York Times report about the Su-22 incident.

The United States has warned pro-Assad forces to stay out of a “deconfliction” zone it has declared around the garrison.  The town of Ja’Din is little more than a mile north of this deconfliction area, but the United States has made it clear that the Syrian fighters it supports and the American and other allied advisers that accompany them are not limited to that buffer area. (Emphasis added.)

I glean from all this that it is quite possible that the reference to “rules of engagement” in the Coalition announcement may have intended to acknowledge that “American and other allied advisors” were accompanying the SDF fighters who were in the area bombed by the Syrian Su-22 that was shot down by the U.S.

In other words, there might be at least two different legal bases: 1.) defending the advisors and 2.) collective self-defense of the SDF partner forces.  There can be many operational, security, and even political reasons for the Coalition to not emphasize the presence of their own advisors, but they would provide another self-defense justification under the circumstances.

Parenthetically, it does seem like the Coalition tried to avoid the confrontations.  Corcoran explained:

We have an agreement with the Russians, if we’re getting close to something up there, we’ll make a call on guard [channel]” and vice versa.

“Plenty of calls were made” over the hostilities in recent weeks, Corcoran said. “Back at the CAOC [Combined Air Operations Center], they’re probably [also] on the hotline with the Russians — all this connectivity is hugely important to prevent a miscalculation.”

In addition, CNN reports that the pilots:

“[S]aw the Su-22 approaching,” Navy Capt. Jeff Davis, a Pentagon spokesman, told reporters Tuesday. “It again had dirty wings; it was carrying ordinance. They did everything they could to try to warn it away. They did a head-butt maneuver, they launched flares, but ultimately the Su-22 went into a dive and it was observed dropping munitions and was subsequently shot down,.

Such warnings may have been required by the rules of engagement.  Of course, the “rules of engagement” referenced in the CENTCOM announcement are not themselves authority under international law for the use of force (as Kinga points out), but they do incorporate international law.

Some context:  the U.S. defines rules of engagement (or ROE) as “Directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.”  We don’t know exactly what the ROE applicable to this operation provide, but it is a mistake to assume that they do not mandate compliance with the law of armed conflict.

As the Air Force Operations & The Law (3rd ed., 2014) text puts it:

ROE provide constraints on a force’s actions consistent with both domestic and international law. Since ROE are rules we impose on ourselves, they are a primary means for ensuring that all our forces scrupulously comply with the law of armed conflict (LOAC). ROE are not as comprehensive as LOAC, nor does the absence of a limiting ROE excuse a LOAC violation.  Policy constraints imposed by the mission mandate, concerns for coalition cohesion, or the needs of political policy can impose greater restrictions on commanders than LOAC. (Emphasis added).

In fact, I’ve never personally seen ROE that was not more restrictive in some way than what international law might permit.  ROE does, typically, permit actions in self-defense when an adversary demonstrates “hostile intent.”  In an extract of the Chairman of the Joint Chiefs of Staff Instruction, Standing Rules of Engagement/Standing Rules for the Use of Force by U.S. Forces, CJCSI 3121.01B, 13 June 2005, found in the U.S. Army’s Operational Law Handbook (2016) “hostile intent” is defined as follows:

The threat of imminent use of force against the United States, U.S. forces or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital USG property.  (Emphasis added).

Regarding “imminent use of force,” the instruction says this:

The determination of whether the use of force against U.S. forces is imminent will be based on an assessment of all facts and circumstances known to U.S. forces at the time and may be made at any level.  Imminent does not necessarily mean immediate or instantaneous.  (Emphasis added).

This may illuminate Brig Gen Corcoran’s mention of “defenseless” aircraft – “tankers and airlift planes – having to leave the area.  Given the UAV attack on June 8th  where U.S. forces were fired upon, the very presence of a Syrian fighter-bomber forcing other U.S. “defenseless” aircraft out of the area might have been interpreted as hostile intent because the Syrian warplane was an authentic “threat of force” against “defenseless” aircraft.”  It operated to “preclude or impede” those aircraft from performing their “mission” of supporting the battle against ISIS.  Was this a factor in the pilots’ decision?  Hard to say, but it certainly adds to the context in evaluating the threat the Su-22 posed once it defied the warnings and conducted its attack.

All of this said, it would help – a lot – if the Coalition laid out their legal rationale with more specificity.  Nevertheless, I believe there is enough evidence – if media reports are accurate – to conclude that the shootdown was lawful.

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