There is a heated debate over whether ISIS’s bombing of Iraq and Syria is legal. It is a serious issue because it implies the violation of the sovereignty of other countries for which US domestic law and international law have strict guidelines that must be followed.
DOMESTIC LAW
Under Article 1, section 8 of the US Constitution, only Congress has the power to declare war, that is, to make a formal act by which one nation goes to war against another. Without an authorization for the use of military force or declaration of war, under the War Powers Resolution of 1973, the President, as Commander-in-Chief, must notify Congress within 48 hours of the armed forces’ commitment to the military action and prohibits the armed forces from remaining for more than 60 days with an additional 30-day withdrawal period.
The president has not obtained any declaration of war over the ongoing ISIS bombing of Iraq or Syria. The 90-day limit has not passed, but Congress is currently on vacation and the leaders of both chambers, Sen. Harry Reid and Chairman Boehner, appear unwilling to hold a vote given the upcoming midterm elections in November. Speaker Boehner has even suggested waiting for the new Congress in the new year.
But if there is no authorization, what sanctions would Congress have against the President? It could withhold funding for operations, but how could it if Congress didn’t even vote to grant or not grant authority?
Another option would be to seek an impeachment of the president, but this would fail as his actions are unlikely to amount to ‘high crimes and misdemeanors’.
A last option would be to do nothing and let the president justify the war on the basis of international law.
INTERNATIONAL LAW
Even if ISIS’s bombing of Iraq and Syria had complied with national law, it still must comply with the requirements of international law.
The general rule is that one country cannot bomb another as this would be a violation of the other’s national sovereignty.
Therefore, for the bombing of ISIS in both countries to be justified, it has to fall within one of the established exceptions.
An exception is that the attack is carried out with the consent of the bombed country. This is true in the case of Iraq as the Iraqi government authorized the US to carry out air strikes against ISIS in Iraq. Therefore, a UN Security Council resolution is not necessary for the operation to be legal under international law.
In the case of Syria, the Assad regime has given no such permission.
The second exception is that the attack has the authority of a UN Security Council resolution. Under Chapter VII of the Charter, authority may be granted to combat threats to international peace and security. Russia, a traditional ally of Syria and a permanent member with veto power, has already said that the bombing of Syria violates international law, so there does not appear to be a UN resolution.
That leaves the US to rely on the third exception, namely collective self-defense under Article 51 of the Charter and the “unable or unwilling” doctrine to act. The Obama administration relies on this defense on the grounds that:
(a) ISIS is attacking Iraq from safe havens in Syria which is “unable or unwilling” to eradicate them and Iraq has called for an international effort; Y
(b) Preemptive self-defense, i.e. the US may attack Khorasan (a terrorist organization in Syria) due to an imminent threat to the US and its allies that must be prevented before it occurs (see Letter to the Secretary of the UN -General Ban Ki Moon, by the US Ambassador to the UN Samantha Power, dated September 23, 2014).
This is a weak argument. If ISIS is using Syria as a safe haven to attack Iraq, Iraq may use force against those who have withdrawn to Syria, but countries providing assistance (under the umbrella of a coalition) may only do so to the extent necessary to quell ISIS in Iraq and make sure it can’t carry out future attacks there. Additional action by these other states would be subject to the consent of the Iraqi government (LAWFARE – US Airstrikes Against ISIS in Syria? Possible International Legal Theories, by Ashley Deeks, August 23, 2014). This is obviously unacceptable to the US, whose stated goal is to “degrade and destroy” ISIS. Interestingly, the British Parliament seems to have realized this and authorized the use of force, but only in Iraq.
Under the principle of collective self-defense, Syria must be shown not to have passed the “can’t or won’t” test, but the Syrian government has expressed its willingness to work with the US as long as the strikes are coordinated with its government. . The problem here for President Obama is both political and legal given the long-standing cool relations between Washington and Damascus and the need for the US to avoid the appearance that it is aiding the Assad regime.
Furthermore, under established law, collective self-defense does not apply to threats from non-state actors such as ISIS or Khorasan, although this could change as the law evolves (OPINIO JURIS – The Unwilling or Unable Doctrine Comes to Life, by Jens David Ohlin, September 23, 2014). And the doctrine of preventive self-defense is a weak basis to justify any military operation, since it is not accepted by the international community, much less if it is used against non-state actors.
The bottom line is that the legality of ISIS’s bombing of Iraq and particularly Syria is questionable as there is no congressional authority, no UN consent or resolution in the case of Syria, and no collective self-defense is available. But there is a lot of blame to go around.
Republicans in Congress have left President Obama to deal with the ISIS crisis on his own. Paradoxically, at the same time they are suing him because he acts too lonely as a king. That is not what justice is about. He who seeks justice must have clean hands.
At the UN, due to the divergent political interests of the members, the Security Council cannot even pass a resolution to authorize the bombing of ISIS in Syria.
Unfortunately, President Obama’s choice is to either adhere to the law or fight ISIS. That is the dilemma.
Victor A. Dixon
October 5, 2014
