AUMF

A “Buffer Zone” Inside Syria, and Its Complications

By Ashley Deeks
Friday, December 5, 2014, 6:34 PM

The United States and Turkey seem to be having increasingly detailed discussions about establishing a no-fly zone (or “buffer zone”) inside the northern Syrian border adjacent to Turkey. The press reports that Turkey is conditioning the U.S. use of Turkey’s Incirlik air base for armed flights on the U.S. willingness to establish such a zone. The Administration has been coy about its plans, but the topic surely is the subject of internal U.S. consideration right now.

The buffer zone idea raises both policy and legal questions. As a policy and factual matter, it is not entirely clear what proposals are on the table and what the goals of a buffer zone would be. The Post suggests that the protected buffer zone inside Syria would be up to 100 miles long and 20 miles deep into Syrian territory. (The Post article includes a map showing where the zone might be located.) According to the Times, the area could protect civilians from airstrikes by the Syrian government, but the article also suggests that the zone (which the article, somewhat confusingly, states might be inside Turkey rather than Syria) could protect Syrian rebels and civilians from attacks both by Assad’s government and by ISIS. The Post indicates that the zone would be part of an offensive to push back ISIS militants along the western part of Syria’s border with Turkey and create a safe zone for U.S.-backed Syrian rebel forces to move in. Establishing such a zone might require the United States to disable Syria’s air defense systems.

These descriptions seem to reflect at least two related but distinct goals: (1) to protect civilians against kinetic strikes by Assad and ISIS in the area covered by the zone and more generally to create a zone of security for internally displaced persons fleeing the conflict in other parts of Syria; and (2) to create a safe harbor within Syria for moderate Syrian rebels by expelling ISIS from within that zone. The actual goals and operational parameters of such a zone matter, I think, to the international and domestic legal analysis that the USG will undertake.

International law. If the U.S. emphasis in creating a buffer zone is to expel ISIS from the area and make it an area hospitable to Syrian rebels who are fighting ISIS, the international legal justification for the zone looks like an extension of the existing justification for conducting airstrikes against ISIS in Syria. In this scenario, the United States would focus in particular on targeting ISIS in the buffer zone, to evict ISIS fighters from that area and ensure that they do not return. The United States would still be acting in collective self-defense of Iraq and also, presumably, national self-defense along the lines cited in its September 23 Article 51 letter to the Security Council. And the United States would continue to rely on the argument that Syria itself is unwilling or unable to suppress the threat posed by ISIS. The geographic location of the proposed zone is well west of the Iraq/Syria border and the zone’s purpose seems more directed to promoting the defeat of ISIS in Syria proper rather than to suppressing ISIS activity in Iraq. The ongoing connection between ISIS in Iraq and Syria remains strong enough, however, that it seems reasonable to continue to invoke Iraq’s collective self-defense as a justification.

If the U.S. emphasis is more humanitarian and/or more focused on protecting civilians facing violence from Assad’s regime, the international legal justification looks different. (In a speech this week, Hillary Clinton argued that combating ISIS required “first and foremost a protective humanitarian approach.”) The self-defense rationale fades and the far more contested idea of humanitarian intervention assumes prominence. We then enter the Kosovo-like realm of action that may be legitimate but not necessarily lawful.

Domestic law. The domestic law justifications for a buffer zone inside Syria also are dependent on the underlying reason for creating the buffer and the actions to be taken to create that buffer. To date, the Administration has relied on the 2001 AUMF as the basis for using force against ISIS in Syria, and it presumably would continue to do so if the goal of the zone is to clear the area of ISIS fighters and preserve the space for moderate Syrian rebels to assemble, rest, train, and re-equip. If, however, the buffer zone is cast as a humanitarian measure, the 2001 AUMF is a poor fit. The President would have to rely on his inherent Article II powers to defend the operation, unless he can persuade Congress (which still is kicking around ideas about authorizing force against ISIS) to include this kind of activity in statute. Jack described here the legal stakes of relying on Article II authority alone to engage in humanitarian intervention in Iraq; the concerns he raises would apply to a humanitarian buffer zone in Syria as well.

The nature of the zone affects not just the legal justifications of the United States (and other coalition members). It also could affect Assad’s legal justifications for using force against U.S. aircraft in Syrian airspace. If the United States invokes a credible self-defense rationale, the Syrian government may not use force in “self-defense” against self-defense. If the United States undertakes an action that looks far more like modest humanitarian intervention, Syria has a stronger argument for claiming that the United States is engaged in an armed attack against it and for using force to protect its territorial integrity. Hopefully the Administration and Congress have these thoughts in mind as they work through whether and how to create such a buffer zone.