Op-Ed: Obama's bombing of IS in Syria likely violates international law

Posted Sep 18, 2014 by Ken Hanly
The Obama administration has explained why it thinks it has the legal authority to bomb IS in Iraq and Syria although many doubt whether the justifications are sound. No justification has yet been been given for the attacks under international law,.
US President Barack Obama greets military personnel upon arrival at MacDill Air Force Base in Tampa ...
US President Barack Obama greets military personnel upon arrival at MacDill Air Force Base in Tampa, Florida on September 16, 2014
Mandel Ngan, AFP
Obama argues that the 2001 Authorization of the Use of Military Force (AUMF) passed after 9/11 to allow military action against Al Qaeda and those linked to the 9/11 attacks gives him the required authorization to use military forces against the Islamic State in Syria and Iraq. However,. Al Qaeda has disowned the Islamic State(IS) and IS has even fought against the group recognized by Al Qaeda in Syria the Al-Nusra Front. The Islamic State had nothing to do with 9/11. So far the Obama administration has not even attempted to provide a justification for attacking the Islamic State under international law.
Since the Iraqi government has asked for and approved the US military actions against IS in Iraq, the problem will be to provide justification for attacks within Syria where the US refuses even to ask permission for its proposed bombing attacks. Both the Syrians and Russians claim any attacks in Syria would violate both international law with respect to armed conflict and also the UN charter unless authorized by the Assad government or a UN resolution. The US answer appears to be that if and when the US actually carries out military action in Syria it will come up with the justification then. The moral appears to be to act first and justify after. Caitlin Hayden explained to the Daily Beast:“Whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally—and on the way in which the United States can use force. With respect to international law, the specific basis will depend on the particular facts and circumstances related to any specific military actions, but we believe that we will have a basis for taking action.”
In Libya, Obama took great pains to have a UN resolution authorize his military action under the guise of protecting the lives of citizens. The actual aim was regime change. With Gadaffi's air force and defenses destroyed, bombing attacks were used to help rebels defeat Gadaffi's forces on the ground. In other interventions the policy has been to violate international law along with any allies willing to go along and then go to the UN to justify continued occupation as in Iraq and Afghanistan. For some of the violations in the Afghan invasion see this article. Even former UN secretary general Kofi Annan explicitly said in September 2004 that the Iraq attacks on Hussein violated international law and the UN charter: Mr Annan said that the invasion was not sanctioned by the UN security council or in accordance with the UN's founding charter. In an interview with the BBC World Service broadcast last night, he was asked outright if the war was illegal. He replied: "Yes, if you wish."He then added unequivocally: "I have indicated it was not in conformity with the UN charter."
In spite of these precedents, Ken Gude, of the Center for American Progress, a think tank close to the Obama administration that supports his anti-IS campaign says: “It’s important that the U.S. be seen as an adherent and supporter of international law and I’m concerned about the direction this is going. I’m disappointed in the level of supporting both domestic and international law in this military campaign. It’s important that the U.S. be seen as an adherent and supporter of international law and I’m concerned about the direction this is going". Rather than providing a justification as Gude suggests, US State Department Spokesperson Marie Harf said in response to Syrian claims that any US attacks without Syrian permission or a UN resolution would violate international law:"I find it interesting that Russia’s suddenly taken an interest in international law, given some of their past behavior. The President has the authority as Commander-in-Chief under the United States Constitution to take actions to protect our people. And any action we take overseas, of course, we will have an international legal basis for doing so. I don’t have predictions about what that is, given we haven’t announced additional actions yet.”
This response, would seem to indicate that the administration may take the tack of claiming the action is required on the grounds that the Islamic State is an immediate threat to the United States in a place where the state involved, Syria, is unable or unwilling to take action. Of course Syria is taking action against the IS and has even said that it would sanction the military actions of the US against IS if they were coordinated with the Syrian government. The self-defense argument used in this case would stretch the meaning of "imminent threat" beyond reason so as to allow the application of the self-defense justification. If the US were willing to cooperate with the Assad government there would be no need to resort to self defense as a justification at all. John Kerry explicitly ruled out such cooperation: No, we're not going to coordinate with it, Syria. We will certainly want to deconflict to make certain that they're not about to do something that they might regret even more seriously. But we're not going to coordinate. It's not a cooperative effort. We are going to do what they haven't done, what they had plenty of opportunity to do, which is to take on ISIL and to degrade it and eliminate it as a threat. For some time the Islamic State or ISIS, at it was then, concentrated on taking territory held by other rebels and so there was not much confrontation between Assad and ISIS but that has changed for some time and Assad and ISIS are in constant battle with each other.
The US might try to invoke a right of "collective self defense" and claim that strikes inside Syria were meant to protect Iraq against the IS. Syria is not able to control its own territory and prevent attacks against Iraq by IS from Syria. Any such justification would limit attacks to defending Iraq and not destroying IS as is Obama's purported aim. The Obama administration could again stretch the legal limits by claiming that any punitive action against IS in Syria would be protecting Iraq.
No doubt the Russians would find this defense interesting. Perhaps, they could argue that two self-declared pro-Russian Republics were unable to control their territory in the Ukraine, and hence to protect them they are going to bomb Ukrainian forces that are trying to take control of those territories. This is simply an application of the collective right to self defense.
Ashley Deeks, a University of Virginia Law Professor, does not think that the collective self defense justification would be attractive to the Obama administration: “This theory would limit the scope of action of those helping the Iraqi government: those providing assistance only could do so to the extent necessary to quell ISIS in Iraq and ensure that ISIS was unable to conduct future attacks there. The approach also would be contingent on Iraq’s consent, which it could withdraw. As a political matter, it seems doubtful that the United States would find this to be an appealing approach, particularly if it perceives its own national interests to be at stake.”
Finally, Obama could claim that IS is part of the continuing war against al-Qaeda an application of the same type of justification used under domestic law to the international realm. Apart from the problems that IS is not part of Al Qaeda and had nothing to do with 9/11 it is not clear how this justification shows US actions comply with international law.
The US can attempt to pass a UN Security Council resolution justifying use of force against the Islamic State in Syria. Russia would no doubt veto such a resolution. A drone has already been seen over Aleppo in areas controlled by IS and also over Raqqa the main center in IS territory in Syria. Unless these drones are Syrian or have permission from the government to be there, they are violating Syrian air space. The US justification for action in Syria is long overdue. We know that the US carried out attacks in Syria some time ago as they attempt tor rescue a US journalist held by IS in Syria. On the appended video the new Iraqi prime minister claims that without the consent of the Assad government bombing attacks on the IS in Syria violate international law.