The Legality of ISIS Air Strikes Under International Law

President Obama announced in his speech on September 10 that the United States would pursue expanded military (air) strikes against the Islamic State or ISIS terrorist group in both Iraq and Syria.  Many academics have already grappled with the issue of whether the President has authority for this type of military action under domestic law, with most arguing that the President did not have authority under the Authorization to Use Military Force (AUMF) (see Deborah Pearlstein’s post on Opinio Juris and Marty Lederman’s and Jen Daskal’s posts on Just Security).  What I would like to focus on in this post is the issue of legality of the proposed military campaign under international law.

As we all know, Article 2(4) of the United Nations Charter bans states from using force against the territorial integrity and political independence of other states.  The only legally recognized exceptions to this overall ban are instances where the Security Council authorizes the use of force or where the intervenor nation alleges self-defense pursuant to article 51 of the United Nations Charter.  In this instance, if the United States intervened in Iraq and Syria against ISIS, such use of military force would not be authorized by the Security Council, because the latter has been deadlocked over any use of force in the Middle East and because Russia would likely veto any future discussions of authorization to use force in this region.  Can the United States assert self-defense? Maybe.

The United States could argue either individual or collective self-defense.  If it argues individual self-defense, the United States would have to assert that it is fighting ISIS, a terrorist group and non-state actor in an area where the relevant state authority is unable or unwilling to intervene, such as in Syria or in Iraq.  While the United States has squarely adopted the position that the “unable or unwilling” test enables it to assert an individual self-defense rationale against a terrorist non-state actor operating out of another sovereign state, international law scholars have debated the legality of this approach and have been far from reaching a consensus on this issue.  Moreover, it appears that at least Syria asserts that it is willing and able to fight ISIS; the United States’ position vis-a-vis Syria on this issue is thus complex and has been summarized in a recent excellent post by Ryan Goodman on Just Security:

“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 other potentially unrelated reasons?”

Thus, it appears that the United States’ rationale for using force against ISIS in Iraq and Syria is shaky at best under international law, because of lack of consensus in the scholarly community about the “unable or unwilling” test and because of the test’s complex application  to the Syrian context (arguably, Iraq is “unable or unwilling” to fight ISIS).

Another possibility for the United States would be to argue that the recent beheadings of two American journalists by ISIS amount to an “armed attack” against the United States, within the meaning of Article 51 of the United Nations Charter.  This interpretation of Article 51 is possible although it is likely that many in the scholarly community would disagree with it.  While it appears that most scholars and some states have embraced the view that states may assert a self-defense rationale when fighting against non-state (terrorist) actors, there is no consensus on what type of attack by a non-state actor against a sovereign state could trigger the latter’s right of self-defense.  9/11 terrorist attacks against the United States constituted an “armed attack” according to most, if not all scholars, but the beheadings of two American journalists, however gruesome they may have been, may not reach the same threshold.  Thus, the armed attack argument remains subject to debate in this context.

Finally, the United States could claim collective self-defense in order to justify its use of military force against ISIS.  In order to do so, the United States would have to make the argument that the governments of Iraq and Syria invited the American intervention.  This argument is easier to make with respect to Iraq than Syria, because the former may very well agree to the presence of American forces and may thus “invite” air strikes, while it is unlikely that Syria’s President Assad would so agree or make such a request.  The collective self-defense argument works better in the Iraqi context, but is weak when it comes to Syria.

I should also point out here that  although some scholars have argued in favor of a humanitarian intervention in the context of Syria, the latest American-announced air strikes do not fall in this category because they will be directed against a terrorist group and will not be aimed at easing humanitarian suffering.   Overall, it appears that the United States government is asserting an individual self-defense argument based on the “unable or unwilling “test for both its actions in Iraq and Syria.  These actions will hopefully prove useful in the global fight against terrorist groups such as ISIS; they will certainly continue to raise difficult international law issues.

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The 2nd Circuit’s Disclosure Order: A Fresh Opportunity to Revive the Imminence Debate?

On 21 April 2014, the 2nd Circuit Court of Appeals reversed a lower court decision and ordered the US Department of Justice to disclose portions of a classified memorandum written by the Office of Legal Counsel around June 2010, providing legal justification for the targeted killing of Anwar al-Awlaki, an American citizen.

The court decided that the government waived its right to secrecy by publishing a Justice Department White Paper in 2011 and by making repeated public statements on the legality of targeted killings.

At the time of writing, it is unclear when the memorandum might be made public, or whether the government will seek review of the decision.

Although the plaintiffs had not challenged the legality of targeted killings, and the operational details in the memorandum were not affected by the disclosure order, the decision is a clear rejection of the policy of secrecy surrounding the US government’s targeted killings program.

Allegedly, the classified memorandum concluded that al-Awlaki could be lawfully killed, if he could not be captured, because there were reports that he was involved in the war between the US and al-Qaida and posed a significant threat to US citizens, as well as because Yemeni authorities were unable or unwilling to stop him. The sparse details left many wondering about the particular mechanism followed and the laws applied to reach the decision to kill him. Subsequent public statements, the White Paper (WP) and a Fact Sheet released by the White House in May 2013 tried to fill the gap and provide a domestic and international legal framework for the targeted killings of US citizens (and others) abroad. As regards domestic law, while President Obama acknowledged the paramount importance of due process, the WP trivialized (on pp. 5-6) the Mathews v. Eldridge (1976) test through a cursory weighing of private and public interests against each other. As regards international law, while official references to the law of self-defense and the law of armed conflict have been manifold, their applicability and inter-relationship has not been clarified.

It remains to be seen whether the partial disclosure of the memorandum, if effected, will revive the debate and bolster the scrutiny on the US government’s targeted killings program.

Among many concerns of the program, the concept of imminence in itself, and its schizophrenic association with both due process and the law of self-defense merit thorough review and discussion. Continue reading