Obama’s Syria Strikes Leave International Law QuestionsSangwon Yoon
As the U.S. bombs Islamic State targets in Syria, its right to do so has been questioned by nations from France to Russia and by international law scholars.
Unlike neighboring Iraq, Syria’s government hasn’t asked President Barack Obama to help fend off the Sunni extremist group’s advances.
While Obama is backing other rebel groups that seek to oust Syrian President Bashar al-Assad, launching such airstrikes without invitation has been greeted internationally with acquiescence rather than outright support.
“The U.S. can use force on behalf of Iraq -- which has appealed to the world for help -- against its enemies, but it needs to get over that bridge of bombing territory of another country without the government’s request or permission,” said Ryan Goodman, a New York University law professor and co-editor-in-chief of Just Security, a national security blog.
The debate played out over the past two weeks as world leaders gathered in New York for the annual opening of the United Nations General Assembly.
U.S. Ambassador to the UN Samantha Power defended the strikes as an act of “self-defense” on behalf of Iraq against a threat the Syrian government was unable and unwilling to confront. In a letter to UN Secretary General Ban Ki-Moon, Power invoked Article 51 of the UN Charter, which requires countries to immediately report acts of self-defense to the Security Council.
The formulation resulted from weeks of internal debate in the Obama administration over how to assert the right to attack Islamic State both under international law and under the president’s constitutional authority in the U.S., a matter still in dispute in Congress.
At one point, Secretary of State John Kerry told a Senate committee in Washington that extending airstrikes into Syria was justified because of ’’a right of hot pursuit’’ in helping Iraq.
The rationale advanced by Power is legitimate because of Islamic State’s “transnational nature,” international law scholars Ranj Alaaldin and Bilal Khan wrote in an article posted on the website of the London School of Economics and Political Science.
“There must be an international dimension and given that” Islamic State’s “main apparatus is in Syria, an apparatus from which it launches its attacks on Iraq, from which it mobilizes fighters and garners its resources, this condition is sufficiently met,” they wrote.
Ban, who serves as the custodian of the UN Charter, stopped short of blessing Power’s interpretation while implicitly approving the move to combat the “undeniable” threat that Islamic State poses.
“I am aware that today’s strikes were not carried out at the direct request of the Syrian government, but I note that the government was informed beforehand,” Ban told reporters on Sept. 23. “I also note that the strikes took place in areas no longer under the effective control of that government.”
That ambivalence toward the U.S. action in Syria is shared by France. President Francois Hollande, whose country has joined in airstrikes over Iraq, ruled out attacking Syria, citing a lack of authority.
“We’re very concerned with the aspects of international law,” Hollande said Sept. 18 in a press conference in Paris. “We’ve been called in by the Iraqis; we’re not called on in Syria.”
French Foreign Minister Laurent Fabius said in New York on Sept. 22 that it is legally possible for the U.S. to take military action in Syria, while repeatedly declining to explain why France is constrained from doing the same.
Although the U.K. Parliament limited its bombing authorization to Iraq, Prime Minister David Cameron told lawmakers he thinks airstrikes in Syria would be lawful to prevent a humanitarian catastrophe and protect neighboring Iraq.
Goodman, the international law scholar, said that while Ban’s sympathetic statement recognized “some kind of exceptional political justification,” it doesn’t provide any legal authority under the UN Charter.
The charter makes only two exceptions for the use of force: when it is an act of self-defense or when the UN’s Security Council has authorized it as an act of protection of international peace and security.
A Security Council resolution would be vetoed by Russia, Assad’s ally.
Representatives of Syria and Russia said at the UN that the U.S. airstrikes violate international law, although with less than the full-throated denunciations they usually aim at the American administration.
Syrian Deputy Prime Minister Walid al-Muallem told the UN General Assembly on Sept. 27 that any international counterterrorism effort must be within “the frame of full respect of national sovereignty and in conformity with international conventions.”
Russian Foreign Minister Sergei Lavrov said the U.S. refusal to coordinate its attacks on Islamic State with Assad’s regime violates international law and undermines counterterrorism efforts.
“We believe that any action taken globally including the use of force taken to overcome terrorist threats should be done in accordance with international law and with the accord of country on territory of which operations take place,” Lavrov told reporters in New York on Sept. 26.
The Russian response is bluster as no tangible actions are being taken to object to the strikes in Syria, a Security Council diplomat said, asking not to be named due to the sensitivity of the matter.
Russia has made no move to file a written letter of objection or to call a Security Council meeting to discuss the legality of the strikes, the diplomat said, saying that the Russians recognize the airstrikes are essential to defeat Islamic State.