Guest Post: Pesky Questions of International Law: What’s the basis for air strikes in Syria?

[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]

President Obama’s speech on September 10^th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s).  But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller).

This may not seize the attention of the American public, but surely coalition partners would ask these questions:  what was Obama’s basis for the legality of air strikes in Syria?

It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level.  Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force.

There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds.  Such a legal foundation was not well-articulated in President Obama’s speech. 

Consent of the Assad regime

Consent of the Assad regime would legitimize air strikes in Syria against ISIS.  Assad seems willing to grant such consent (at least according to one New York Times article), but seems to request coordination with the U.S., something the U.S. seems to presently rule out.
Security Council approval

Alternatively, the UN Security Council could authorize air strikes under its Chapter VII powers.  This is not as crazy as it sounds.  Previously, Russia was in a position to veto any UNSC voting that would have impacted negatively on the Assad regime.  However, because the Assad regime could benefit from air strikes against ISIS, Russia might not veto a UNSC resolution authorizing air strikes against ISIS in Syria.  The possibility of such a resolution should be explored.

Self-defense of the Iraqi people

If air strikes are viewed as collective self-defence of Iraq, and if ISIS poses a threat of trans-border attacks into Iraq, potentially, military action could be aimed at ISIS to prevent such trans-border attacks.  Such a legal foundation would not be a carte blanche for air strikes against ISIS in Syria, but would be grounded in preventing trans-border attacks or degrading ISIS’s capability to launch them.

Humanitarian intervention

ISIS is implicated in large scale atrocity crimes to date.  It might be possible to make an argument supporting intervention on grounds of humanitarian intervention, although President Obama did not appear to do so in his speech.  This is probably for good reason.  While NATO utilized such a doctrine in its 1999 Kosovo intervention, there is growing scepticism whether it can be used without Security Council authorization – as would be required for forceful intervention under the doctrine of the “responsibility to protect.”

Pre-emptive self-defense

To the extent that President Obama articulated any justification at the international law level, he seems to have chosen (in this author’s view) weaker arguments.  By arguing that ISIS is a “terrorist threat” and later suggestions from the White House that use of force could be covered by the post-9/11 AUMF, President Obama seems to argue either for pre-emption (attack ISIS before they attack the US) and/or that military force is part of the “global war against terror” that started post-9/11.  (The Obama administration usually frames it more narrowly as a war against “Al Qaeda and associated entities.”)

As to pre-emptive self-defense, this is a Bush Administration doctrine that has generally been discredited by many legal scholars.  Vague invocations of a “threat” to U.S. interests are not sufficient grounds to go to war.  President Obama doesn’t argue that the U.S. has suffered an “armed attack” from ISIS as would be needed to invoke self-defense.  Nor does he make the case of an “imminent” threat of an armed attack, the legal basis for utilizing anticipatory self-defense.

Part of a global war

While rhetoric of fighting a terrorist group or group once affiliated with Al Qaeda probably has appeal to the American public (particularly with Obama’s speech close to the 9/11 anniversary), there is widespread international scepticism about whether there is such a thing as a “global war,” and, even if there is, who is an appropriate target.  Even if one sees ISIS as a one-time “affiliate” of Al Qaeda (slight complication that it is no longer affiliated), many countries have remained sceptical of endorsing the global war framework.  While there was widespread support for the US post 9/11 as it started its military intervention in Afghanistan, that support eroded as the US response and all that the “global war” encompassed grew broader and broader.

The need to show international legal foundation

Thus, while it is not impossible that air strikes in Syria could be justified under international law, the Administration still needs to demonstrate a solid legal foundation for them.  Maybe the American public and members of Congress will not demand these answers (although they should), potential coalition partners most likely will.  Building a robust coalition, including Arab states, will be a key indicator of the acceptability of American action; not only should the US not bear the cost of going it alone, the ability to build a broad coalition (including on the issue of air strikes in Syria) will be an important indicator of legitimacy.