Following President Obama’s announcement last week that the U.S. would be launching strikes against the Islamic State (also known as ISIS and ISIL) on both sides of the Syria-Iraq border, a growing number of international legal scholars and foreign governments are raising questions over the legality of such strikes, particularly as they pertain to action on Syrian territory.
The Syrian government and its allies in Moscow and Tehran have warned Obama that an offensive against within Syria would violate international law, with Iran’s foreign ministry saying that “the so-called international coalition to fight the [Islamic State] group … is shrouded in serious ambiguities and there are severe misgivings about its determination to sincerely fight the root causes of terrorism.”
Russia said it would not support any military action without a UN resolution authorizing it.
While administration officials have attempted to explain the domestic legal rationale for the strikes on the basis the 2001 and 2002 Authorizations for the Use of Military Force – unconvincingly to some, such as the New York Times, which pointed out that the 2001 law applied specifically to the perpetrators of the 9/11 attacks and al-Qaeda more broadly, but since al-Qaeda has disavowed ISIS the law clearly doesn’t apply to the current situation – it has offered no comparable justification under international law.
It has instead asserted without elaboration that borders present no constraints to U.S. military action. “We are lifting the restrictions on our air campaigns,” a senior administration official told reporters during a recent background briefing. “We are dealing with an organization that operates freely across a border, and we will not be constrained by that border.”
Under international law, however, borders most certainly do pose constraints. The sanctity of borders is enshrined in the UN Charter, which plainly states, “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.”
Indeed, since the end of World War II, the international political system has been structured around three main principles: the equal sovereignty of states, internal competence for domestic jurisdiction, and territorial preservation of existing boundaries.
These principles have been violated repeatedly by the Obama administration over the years, especially in regards to drone strikes, and the administration has rarely even attempted to justify its actions under international law.
As John Bellinger writes at Lawfare, Obama administration officials “have been reticent about the international law basis for many U.S. actions, which is especially surprising given the Administration’s touted commitment to compliance with international law.”
One reason for the administration’s silence regarding the legal basis for the possible use of force against ISIS in Syria is that none exists, since the Bashar al-Assad regime has not consented to the use of force in its territory.
“This will leave the Administration to cobble together,” Bellinger writes, “a variety of international legal rationales.” Some of these might include the argument that ISIS is part of al-Qaeda and therefore part of the U.S. armed conflict, or perhaps a co-belligerency theory, or perhaps collective self-defense.
“Ultimately,” Bellinger speculates, “the Administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual ‘factors’ that ‘justify’ the use of force, as the Clinton Administration did for the Kosovo war. But it would be much preferable for the Administration to provide legal reasons.”
This is especially true considering the fact that the administration has been waving around “international law” as a rallying cry to confront and isolate Russia over its alleged meddling in eastern Ukraine. As Secretary of State John Kerry said following the Russian annexation of Crimea last spring, “What has already happened is a brazen act of aggression, in violation of international law and violation of the UN Charter and violation of the Helsinki Final Act.”
President Obama gave a speech in May at West Point at which he touted principles of international law and the importance of the U.S. leading by example. “American influence is always stronger when we lead by example,” he said. “We cannot exempt ourselves from the rules that apply to everyone else.”
It is now Russia that is one of the strongest critics of the U.S.’s actions against the territorial integrity of Syria. Moscow said Thursday that air strikes against militants in Syria without a UN Security Council mandate would be an act of aggression.
“The U.S. president has spoken directly about the possibility of strikes by the U.S. armed forces against [Islamic State] positions in Syria without the consent of the legitimate government,” Foreign Ministry spokesman Alexander Lukashevich said.
“This step, in the absence of a UN Security Council decision, would be an act of aggression, a gross violation of international law.”