For 13 years of the war on terrorism, the U.S. took heat for bending — some say breaking — international law by intervening in sovereign states without the consent of their governments. So many were surprised on Tuesday that the international community hardly reprimanded Washington when it and five Arab nations launched a series of unprecedented strikes against Islamic State in Iraq and the Levant (ISIL) targets across Syria without securing the permission of Syrian President Bashar al-Assad, their mutual enemy.
The U.S. also launched unilateral strikes in Syria’s north against an Al-Qaeda-linked group that Lt. Gen. William Mayville, director of operations for the Joint Chiefs of Staff, said was nearing the “execution phase” of an attack on the West — a reprisal of the controversial pre-emptive self-defense argument that underpinned the war on terrorism.
The muted reaction doesn’t mean the world is buying the Obama administration’s legal rationale for striking ISIL in Syria, an argument that is premised on the White House’s refusal to partner with the Assad regime and that takes advantage of gray areas in international law.
Given the indiscriminate brutality of ISIL in Syria and Iraq, and the sectarian threat it poses to regional stability, it may simply be the case that the international community is willing to turn a blind eye. Others say Washington's partnership with regional powers lends credibility to the operation.
Still, many legal scholars say the U.S. justification for striking ISIL may be valid.
The U.S. has already invoked Article 51 of the U.N. Charter, which allows for collective self-defense of a sovereign state without Security Council approval, to justify the ongoing offensive against ISIL strongholds in Iraq. Baghdad has formally requested military assistance to combat the armed group in the country’s Sunni strongholds, so the legality of foreign intervention on the Iraqi side of ISIL’s vast territory is clear-cut.
But any campaign against ISIL that is limited to one side of the Iraqi border would amount to a stopgap measure, since ISIL fighters can easily retreat into Syria, where the group is based, to replenish and refuel. In other words, the U.S. argues, defending Iraq from ISIL requires expanding the offensive into Syria.
“The U.S. claim of self-defense is parasitic upon Iraq’s claim,” said Jens Ohlin, a professor at the Cornell University School of Law and an expert on the legality of international military action. “Iraq has suffered attacks from ISIS [an acronym for another name for ISIL] units that have a safe haven in Syria, which is unable to stop ISIS from operating on its territory. This argument is controversial but supportable in my view.”
In fact, there wouldn’t even be a debate over the legality of U.S. strikes on ISIL if the White House secured the permission of the Assad regime. But after recently announcing it would boost aid to Syria’s moderate rebels and already under fire for taking too soft a line against the Assad regime over three years of bloody civil war, the White House is afraid it would paint itself as hypocritical by collaborating with Assad against a common enemy — even for a brief time.
So the U.S. has made the controversial argument that the Syrian government is “unwilling or unable to prevent the use of its territory” by ISIL as a staging ground for attacks in Iraq, according to U.S. Ambassador to the United Nations Samantha Power. After all, Assad has lost control of over one-third of his country to ISIL — hence “unable” — and there is evidence he has allowed ISIL to metastasize while focusing fire on other rebel factions because the group has spurred so much rebel infighting — therefore “unwilling.”
Furthermore, the U.S. has designated ISIL a threat to its national security, in part because the group has beheaded two American journalists. That argument could, in theory, afford the U.S.-led coalition the right to strike in Syria in defense of Iraq if the Assad regime isn't doing enough on its own, wrote Ryan Goodman, a professor at New York University School of Law and editor-in-chief of the Just Security blog. But it’s a unique case.
“What is the international law when a host state (Syria) is willing and able to deal with a nonstate group (ISIS) through military cooperation with the threatened state (the United States) but the latter (the United States) doesn’t want to associate itself with the host state for potentially unrelated reasons?” Goodman wrote.
The Assad regime’s major backers — Iran and Russia — have cried foul, though their objection amounts to rhetorical support for Damascus since the consensus is that those two countries are happy the U.S. is taking on a regionwide threat.
Scholars noted that Iran’s and Russia’s objections mean little if Damascus gave its tacit consent for foreign strikes against ISIL or the Al-Qaeda-affiliated Jabhat al-Nusra, which lost 50 fighters in the U.S.-Arab bombardment on Tuesday. In a statement shortly after the strikes, the Assad government said it supported “any international effort to fight against terrorism” and emphasized that it was notified of the strikes beforehand, seemingly implying that it was on board.
“Assad would be the one to assert Syrian sovereignty, not Russia or Iran,” said Jennifer Trahan, an associate professor at the NYU School of Global Affairs. “If Assad isn’t alleging a violation of sovereignty, it brings this closer to the framework of the U.S. strikes in Yemen or Somalia.”
Analysts say there is greater legal basis to object to the strikes on the Khorosan group, a cadre of Al-Qaeda veterans that the U.S. struck on its own just hours before the coalition took aim at ISIL. As the U.S. often did to justify military action against extremist cells after the 9/11 attacks, it invoked the amorphous doctrine of pre-emptive self-defense to justify violating Syrian sovereignty in that case. Of course, what led the U.S. to deduce that an attack on the West was imminent, as always, remains a government secret.
“If the U.S. has previously been attacked by this group, it should say so,” said Ohlin. “If the argument is that we need to stop an imminent attack from them in the future — well again, the administration needs to provide some evidence to support this conclusion."
In that regard, the Obama administration may have slipped one under the radar by hitting the Khorosan group alongside the more internationally accepted coalition strikes against ISIL.
In fact, not even U.N. Secretary-General Ban Ki-moon raised issue with Tuesday’s strikes. In his first comments after the strikes, Ban all but endorsed the “unwilling and unable” argument made by the U.S., noting “that the strikes took place in areas no longer under effective control of that government.”
“I think it’s undeniable that these extremist groups pose an immediate threat to international peace and security,” he said.