President Obama suggested very strongly last night that the USA may bomb ISIS targets in Syria. His invocation of Somalia and Yemen as possible models for a Syria intervention made explicit that the USA intends to launch strikes against individuals in Syria.
But would this be legal?
From a domestic standpoint there is some debate about whether or not the President needs to secure congressional approval for this kind of action. From an international perspective the UN charter is rather clear on the circumstances in which one country can bomb the territory of another.
There are basically three criteria that could make this legal.
1) The Security Council authorizes the intervention. Chapter VII of the UN Charter gives the Security Council the sole legal authority to authorize international interventions when the government of the territory on which the intervention is taking place does not consent to the intervention. In other words, bombing a country without that government’s consent to have its territory bombed isn’t legal unless the Security Council says so. This is why the intervention in Libya was technically legal; and why the invasion of Iraq in 2003 was not.
In this case, the Security Council will almost certainly not authorize international intervention against ISIS in Syria because veto-wielding Russia would almost certainly object to such a resolution. This is not to say that Russia is in any way aligned with ISIS–in fact, ISIS threatens Russia’s allies in Damascus. Rather, Moscow would likely object to a Security Council resolution authorizing strikes against ISIS for the simple reason that Moscow does not want to give the USA any possible pretext for eventually turning its bombs on regime targets. For the past four years, Russia has steadfastly objected to any Security Council resolution that had even the remotest possibility of leading to intervention against Assad. From a Russian perspective, if Moscow accedes to a bombing campaigning Syria, Pandora’s Box could be opened. So, this route for making a US-led bombing campaign in Syria is not likely to succeed.
2) The country asks for help to deal with a threat on its territory. This is by far the most common legal authorization for international intervention. This is how the USA justified intervention against ISIS in Iraq. The government of Iraq asked for international assistance to deal with ISIS on its territory, and the USA obliged. It’s pretty clear cut: A country has the right to ask foreign powers for military assistance against an internal threat. So will Assad give the USA consent to bomb ISIS targets on its territory? It’s not likely. The Obama administration has also consistently stated that it would not coordinate any potential strikes with the Assad regime, which the USA considers illegitimate. So, consent from the Syrian government is not being sought by the Obama administration, but neither would it likely to be forthcoming. Unless some accommodation is made, this route is probably shut.
3) “Collective Self Defense” is invoked. Article 51 of the UN Charter enshrines the principle that countries have an inherent right of self defense, and that this extends not only to a country protecting itself, but other countries coming to the defense of the country under threat. This is called collective self defense. Here’ Article 51.
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
In other words, if the UN Security Council is not able or willing to take action, a country may defend itself from armed attack–and that includes asking other countries to help it defend itself. In this instance, it is probably a stretch to consider ISIS a threat to the United States; the execution of two American journalists does not constitute an armed attack against the USA. However, Iraq has almost certainly been attacked by ISIS elements based in Syria. Iraq is a member of the United Nations in good standing. Therefore, it is not unreasonable to assume that the principle of collective self defense as enshrined in Article 51 applies in respect to Iraq. Iraq has a legal right to defend itself; and it has a legal right to ask other countries to help it do so. This, of course, is more of a slippery argument than getting a Security Council resolution. But article 51 was inserted into the UN Charter for a reason–and the criteria seems to be satisfied in this instance.
Why does this matter? The USA has sometimes excepted itself from norms applied to other countries in respect to international law. The invasion of Iraq was transparently illegal; and the US-led bombing campaign against Serbia in 1999 also did not have Security Council approval. Still, many countries around the world, particularly American allies in Europe, take international law very seriously. They would be loathe to join a coalition to fight ISIS in Syria without a strong legal backing. So, in the coming days and weeks as the USA builds this coalition to fight ISIS, pay special attention to the international law the Obama administration invokes to justify its potential action in Syria. It matters if we want to build a world where the rule of law puts limits on a country’s ability to use force against other sovereign countries. And it matters if this coalition against ISIS is to be as broad-based as possible.