What are the legal bases for striking the Islamic State in Syria? An international law analysis

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    Dear all,

    I wrote a piece for the project "Focus on Syria" that analyses the US airstrikes in Syria in light of international law. It is aimed to non-lawyers and those who do not specifically work on international law.

    Best,

    Vito

     

    What are the legal bases for striking the Islamic State in Syria? An international law analysis

    by Vito Todeschini – Source: Focus on Syria

    On 23 September 2014, the United States (US) ? joined by a number of Arab States ? started conducting airstrikes against the Islamic State’s (IS) strongholds in Syria. The geopolitical relevance of this military campaign requires an understanding of the legal bases on which it rests. This article aims to clarify three questions: what are the international norms governing the use of force; what are the possible legal justifications for carrying out airstrikes in Syria; and, what problems the latter raise from a legal viewpoint. It goes without saying that the purpose of the analysis is not to justify or support the said military action. Rather, it offers a reading of the events from the perspective of international law.

    How does international law regulate the use of force?

    Article 2, paragraph 4, of the Charter of the United Nations (UN Charter) imposes a general prohibition on States to resort to force unilaterally. There exist three exceptions to this rule: self-defence against an armed attack (Article 51 UN Charter); UN Security Council’s authorisation (Articles 39?42 UN Charter) ? e.g. the Libya case; and, consent of the State on whose territory force is meant to be used ? e.g. the ongoing attacks against the IS in Iraq. Outside such exceptions, and excluding minor uses of force aimed to rescue nationals abroad, unilateral use of armed force by States violates the UN Charter. In most serious instances, it may amount to an act of aggression.

    Are there any legal bases for striking the IS in Syria?

    With regard to the situation at hand, one option may be ruled out immediately: the Security Council’s authorisation. Russia and China have often threatened to use their veto power to prevent the adoption of any resolution authorising military action in Syria. Since significant changes in this respect are possible but unlikely, the other two options must be looked at.

    First: consent. Striking the IS in Syria needs the green light from Bashar al-Assad’s government. This requirement derives from both the said prohibition on the use of force and the principles of State sovereignty and non-interference. Assad stated it would only allow for foreign strikes which are coordinated with its government. The US, however, does not intend to collaborate with a political enemy. Yet, it is possible that Assad secretly consented to the military action, although officially opposing it. This seems not far from reality: the Syrian government has been informed in advance about the strikes, and the absence of protests or reactions on its side might mean Assad’s consent has been negotiated and obtained. Lacking any official statement by the latter, however, this remains just a hypothesis.

    Self-defence against the IS?

    In absence of the host State’s consent, the only legitimate way to use force is invoking self-defence. According to Article 51 of the UN Charter, self-defence may be exercised individually (the victim State may use armed force against the aggressor) or collectively (such State may request for help from other States). International law prescribes a number of requirements for legitimately using force in self-defence: 1) a State must be under armed attack, which is defined as use of force reaching a certain level of gravity, intensity, and scale; 2) the armed attack must be imminent; 3) the use of force against such armed attack must be necessary and proportionate ? non-forcible options must be unavailable and military reaction must be solely aimed at neutralising the ongoing attack and prevent repetitions. With regard to the Syrian case, who may invoke self-defence and under what conditions?

    To rely on individual self-defence, the US should have been the victim of an armed attack. Given that this is not the case, this option does not constitute a lawful basis for conducting airstrikes in Syria. The only remaining ground for justifying the use of military force is collective self-defence, and this is precisely what the US government turned to. The US ambassador to the UN, Samantha Power, stated in a letter addressed to Secretary-General Ban Ki-moon that the US government is conducting airstrikes in Syria on the basis of collective self-defence. The US indeed maintains that Iraq made an explicit request for help in order to respond to the armed attacks carried out by the IS, and that the bombing campaign is rendered necessary by the inability of Assad’s government to cope effectively with the Islamist group. This option may be in line with international law. Yet, since the aggressor is an armed group located in the territory of a sovereign State, it is necessary to prove that the government of the latter is either unwilling or unable to neutralise the ongoing armed attacks; specifically, that Assad is unable or unwilling to stop the IS. Apart from the factual difficulty to provide evidence in this respect, it is worth pointing out that this ‘unwilling/unable test’ does not attract much consensus among scholars and States, inter alia for the possible abuses of this theory. In fact, a State may easily claim the need to use force against a certain armed group in the territory of another State because the latter is unable or unwilling to neutralise such a group. In the absence of an objective assessment of the circumstances and facts on the ground, this theory may lead to misuses of the right of self-defence.

    The lack of clear legal bases to carry out airstrikes in Syria is one of the reasons why the Western partners of the US in the military campaign against the IS ? among others, France, the United Kingdom, the Netherlands, Australia and Denmark ? will limit their action on the Iraqi territory. Of course, concerns of a political nature play a major role in this respect; yet, such reluctance is also explained by the ‘unwilling/unable test’ not offering a sound legal basis for military action under collective self-defence. In the absence of other options under international law, however, the US decided to rely on it. The underpinning idea could also be that invoking this theory in the Syrian situation might gather other States’ consensus around it ? a necessary step for its consolidation into an international legal norm.

    Conclusion

    International law prescribes a general prohibition on the use of force except when it is authorised by the UN Security Council, consented to by the host State, or pursuant to the right of individual or collective self-defence. At present, US airstrikes in Syria against the IS may find two justifications: consent and collective self-defence. Unofficially, the Assad’s government might have agreed upon the bombing campaign. This is the most solid legal basis, yet consent can be withdrawn at any time and certainly poses many constraints on the US’ action. Officially, the US claims to act under collective self-defence on request of the Iraqi government. This justification is less solid though, since it draws on a theory ? the ‘unwilling/unable test’ ? not entirely consolidated and accepted under international law.

    One final remark. According to news reports, the US is not only striking the IS, but also the Khorasan group, an Islamist group allegedly affiliated to al-Qaeda and so far unknown to the public opinion. In this regard, the letter to the UN Secretary-General simply contends that the US has initiated “military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.” Unlike in the case of strikes against the IS, the US does not consider it necessary to provide international law justifications for such further military action. Apparently, the US relies on the link between the Khorasan group and al-Qaida, which they claim to be at war with and for which an authorisation by the Congress already exists. In other words, the US maintains that, since it has been in armed conflict with al-Qaida since 2001, there is no reason to seek new legal bases to use force against any groups affiliated or associated with such organisation. This reasoning, however, is based on US constitutional law rather than on international law, and military action against the Khorasan group may be illegal in light of the international norms on the use of force. Compliance with international law is a crucial factor in order to create a favourable political environment to neutralise the IS. US strategy- and policy-makers should not overlook this aspect.

    Vito Todeschini is PhD fellow in international law at Aarhus University, Denmark. His research interests lie in international humanitarian law, human rights law, international criminal law, and the law on the use of force. He may be contacted at: vitot@law.au.dk

    References and sources

    Jennifer Daskal, Ashley Deeks and Ryan Goodman, Strikes in Syria: The International Law Framework, Just Security, 24 September 2014 (http://justsecurity.org/15479/strikes-syria-international-law-framework-daskal-deeks-goodman/);

    Letter by the US Representative to the UN, Samantha Power, to Secretary-General Ban Ki-moon concerning the international law justification for the US use of force in Syria (http://justsecurity.org/15436/war-powers-resolution-article-51-letters-force-syria-isil-khorasan-group/);

    Milena Sterio, The Legality of ISIS Air Strikes Under International Law, IntLawGrrls, 12 September 2014 (http://ilg2.org/2014/09/12/the-legality-of-isis-air-strikes-under-international-law/);

    Ashley Deeks, Narrowing Down the U.S. International Legal Theory for ISIS Strikes in Syria,Lawfare, 12 September 2014 (http://www.lawfareblog.com/2014/09/narrowing-down-the-u-s-international-legal-theory-for-isis-strikes-in-syria/).

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