Bombing Iraq Doesn’t Just Pose Serious Questions of Domestic Law, International Law May Be a Problem, Too

by Deborah Pearlstein

My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda).

But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking.

There is currently no applicable UN Security Council authorization for the use of force in Iraq, and no serious claim that has yet been advanced that the United States would be acting in anything approximating the concept of self-defense recognized by the UN Charter and associated customary law. One could speculate the Administration has (or is looking for) indications that ISIS is threatening U.S. targets in anything beyond the broadest rhetorical way, and if such evidence emerges, of course that could change matters. But for the time being, best I can tell, the argument is non-existent. What of the possibility of a claim of collective self-defense, i.e. defense on behalf of U.S.-allied countries to which ISIS poses a plausible current threat? There, too, hard to see. ISIS poses a substantial threat to the current government of Syria, but Assad is the opposite of an ally. An enlightened Saudi vision of that nation’s interests might argue for the Saudis to worry about and actively oppose ISIS advances, but the shared Sunni affiliation (coupled with widespread reports elements of the Saudi population have been actively funding ISIS) makes such an assessment unlikely at the least. Turkey is no doubt watching the situation with deep concern (even as Kurdish elements seek their own gains amidst the chaos in northern Iraq), as is Shiite Iran, but ISIS at the moment poses no apparent, imminent threat to those countries.

So what of the existence of Iraqi consent to – indeed, request for – U.S. government intervention here? Doesn’t such consent obviate concerns about violations of international law? I think not, for two reasons. First, when the United States uses force in another state to target a group or individual, two separate issues arise. The first is whether the U.S. is violating Art. 2(4) of the UN Charter by using force on the target state’s territory. This Article 2 concern may be substantially overcome by the target state’s consent. (I say “substantially” and not ‘totally’ for reasons I’ll come back to below.) But one must also ask whether it is lawful under international law for the United States to use force against the targeted group or individual. That is, whether the target poses an imminent threat such that the United States could use force in self-defense, or whether the target is lawfully targeted as part of an armed conflict. I don’t understand state consent per se to have a bearing on that analysis. Imagine, for example, that in the midst of its civil war Sudan consented to China’s using force on Sudanese territory to attack democratic opponents of Sudanese President Bashir. Would Sudanese consent suffice to render such an attack lawful under international law? No – because Article 2(4) is not the only source of international law in the world. See, e.g., treaty-based and customary human rights and humanitarian law, among others.

This brings me back to my hesitancy to say state consent totally resolves questions of the violation of UN Charter Article 2(4), which 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.” What’s the best way to read this provision in light of its text and purpose? Consider reading the “or’s” as disjunctive, i.e. states shall not use force either “against the territorial integrity or political independence of any state,” OR “in any other manner inconsistent with the Purposes of the United Nations.” There is understandably no threat to a state’s political independence, for instance, if the state itself asserts its political power to invite the use of force. But article 2 also and separately prohibits the use of force “inconsistent with the Purposes of the United Nations.” These purposes, evident from the Charter’s history and set forth expressly in its Article 1, include the mandate “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes.” A use of force to which Sudan consents – but which otherwise violates principles of international law – seems to me problematic not only under whatever other international law it violates, but also with the terms of Article 2 itself.

http://opiniojuris.org/2014/06/18/bombing-iraq-doesnt-just-pose-serious-questions-domestic-law-international-law-may-problem/

10 Responses

  1. There is no reasonable doubt that the United States can engage in lawful collective self-defense under U.N. Article 51 with the consent of the government of Iraq against the non-state actor ISIS that is engaged in ongoing and significant armed attacks on Iraq, its military forces, and its people initially from outside of and thereafter within Iraq. ISIS may also be an insurgent at this time. Both the self-defense paradigm and the law of war paradigm are directly relevant. Further, there are no geographic limitations on the rights of self-defense and collective self-defense under U.N. Article 51 and there are no limitations with respect to the type of actor that can trigger an armed attack under Art. 51, esp. after S.C. and NATO recognitions that the 9/11 attacks triggered the inherent right of self-defense and over 53 writers have recognized that non-state actor armed attacks can trigger UN 51 — see, e.g., http://ssrn.com/abstract=1520717
    Under the U.S. Constitution, the President has the constitutionally-based power to authorize use of armed force in self and collective self-defensse. See, e.g., U.S. Const., art. III, sec. 3: http://ssrn.com/abstract=2061835
    There would also be a possibility of using force in self-defense as U.S. nationals came under attack and were being evacuated.

  2. By the way, anyone who authorizes the use of force merely when there is allegedly an “imminent threat” should be prosecuted for the crime of aggression. An “imminent threat” is not even a present threat, much less a threat of imminent armed attack (the latter of which might involve a claim to engage in anticipatory self-defense, a minority view, as opposed to preemptive self-defense, a recognized violation of the Charter and CIL – see, e.g., http://ssrn.com/abstract=2402414 at pages 416-421 and references cited )

  3. Thank you for this post.
    The proposed interpretation of Article 2(4) is interesting, but it also seems problematic. As was noted in the Russian Indemnity case, subsequent practice of States in “the fulfilment of obligations is, between states as between individuals, the surest commentary on the meaning of these obligations”. As observed by Dinstein (5th ed., p. 119), “[c]ontemporary international practice is replete with instances of detachments of armed forces sent by one State to another, at the latter’s request, in order to help in safeguarding law and order in the face of intractable domestic turmoil”. Surely, this practice involves States assisting other States with not the best human rights records (to say the least). It would also seem correct to say that this approach of States would reflect an understanding that Article 2(4) is merely concerned with the jus ad bellum issue of violating a State’s sovereignty.

  4. Thank you Deborah for this interesting post.

    Yet, it seems to me that there might be a mix between jus ad bellum and jus in bello. That is, IHL will not render an attack lawful under international law in terms of the former, but only in the context of armed conflicts where the limitations are framed in the rules of conduct of hostilities. If I correctly understood, in your example Sudan was not consenting IHL or even IHRL violations, but only the mere use of force in terms of jus ad bellum within its territory.

  5. Deborah,

    Ashley Deeks and I have both looked at this precise issue from different angles in Harvard Int’l Law Journal forums. I gave a panel talk and wrote on online piece arguing that host state consent to armed attacks when no armed conflict exists would violate the host states human rights obligations. Ashley wrote a journal article that questioned whether consent should be considered adequate under international law when the host state could not itself take the actions consented to under its domestic law.

    With all of that said, I am hard pressed to understand why there wouldn’t be an armed conflict between ISIS and Iraq at this point, particularly given the number of Iraqi Army forces that ISIS fighters have overrun and the fact that they have seized Mosul. Therefore, I don’t think using force to assist Iraq in this conflict is inconsistent with international law, even if we try to give legs to the provision of Art. 2(4) that you emphasize..

  6. Thanks all for the thoughtful comments. A few notes in response. First, I should have more clearly distinguished between the nature of the first and second arguments above. My first argument – that compliance with Art. 2 is necessary but not sufficient to comply with international law in this area (whether IHL or IHRL) – seems to me an inarguable statement of the law as it is. My second argument – offering a proposed reading of Art. 2 itself – was not intended as an assessment of how most (or any) states currently interpret Art. 2, but rather how I think one might argue the provision should be read in this context. What context is that? A circumstance in which there may not yet be an armed conflict (admittedly, a circumstance that has receded in Iraq substantially over the past week), and yet the relevant states – both the consenting state and the state using force – deny the applicability/existence of international human rights law. In my hypothetical above, China would deny that law’s binding effect. In Iraq, the US carries with it its longstanding view that, e.g., the ICCPR, has no extraterritorial effect on U.S. actions. If the consenting state desires the other state to use force for the purpose of committing what would be in effect human rights violations, and if the force-using state rejects (for plausible reasons or no) the notion that it is bound by relevant provisions of international human rights law, can it really be the case that the Charter poses no obstacle to a consenting state seeking another to do what is essentially its dirty work inside the consenting state’s borders? It is that scenario I had in mind as I thought through potential understandings of Article 2.

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