Would a US/ NATO war in Syria be Legal in International Law?

By Juan Cole

Efforts are being made in Congress give to President Barack Obama the formal authority to conduct air strikes in Syria against ISIL. Vice President Joe Biden is now talking, as well, about a concerted and long-term NATO response to the brutal fundamentalist movement, which controls desert territory and some oil resources in eastern Syria and northern and western Iraq.

The US air strikes in Iraq are probably not problematic in international law, though it is not clear that the government of out-going prime minister Nouri al-Maliki formally requested them. The Kurdistan Regional Government certainly did, but whether it has the authority, as a super-province of Iraq, to bring in a foreign power to conduct military operations is unclear in the Iraqi constitution. The Iraqi parliament would certainly have overwhelmingly voted to bring the US in if it had held a vote on the matter; I can’t find that it did. Still, the incoming prime minister Haydar al-Abadi certainly wants the intervention as would his cabinet, which will give ex post facto bilateral legality to the action.

There are limited grounds for military action in the United Nations Charter and associated treaty instruments to which the US is signatory. One is self-defense. Another is a United Nations Security Council resolution authorizing the international use of force to deal with a threat to world order. In the past decade and a half some thinkers have argued that prevention of genocide should trump other considerations and authorize even unilateral intervention (in US civil law it is permitted to use force to protect another person from clear and imminent physical danger on the part of a perpetrator, so this is an “altruistic” extension of the self-defense provision, in part with reference to the Rome Statute). The “responsibility to protect” argument, however, does not have firm legal grounding and is controversial.

The murky political situation in Iraq probably accounts for the odd diction of the Obama administration about their air strikes in defense of the Kurdistan capital of Erbil. They kept saying it was in part to protect US personnel in Erbil. This reference may have been a post-Benghazi way of talking about the US Consulate in Erbil, which is technically US soil and was menaced by ISIL. That is, the Obama administration was laying the ground for a “self-defense” doctrine of its Iraq military intervention until such time as the new Iraqi government is formed and can give more formal bilateral legal authorization to the operation. In any case, it is the Iraqi government that would have any grievance here, and it clearly does not and will not, so the US intervention in Iraq is, remarkably, uncontroversial except in Sunni fundamentalist circles there. Even the Shiite militia Asa’ib Ahl al-Haqq, which once kidnapped US troops from Karbala, is happy to fight beneath the cover of the US air strikes. And hard liners in Iran have been silent on the issue.

Syria is a whole other kettle of fish. A UN Security Council resolution on the use of force by external actors in Syria has been blocked by Russia and China, who don’t want NATO interfering in what they see as their sphere of influence. And so far none of the four parties with claims on governmental authority– the Syrian Baath Party of President Bashar al-Assad in Damascus, the Succor Front (Jabhat al-Nusra, an al-Qaeda affiliate), ISIL, or the Free Syrian Army/ Syrian National Council, has attacked outsiders in such a way as to provide for a self-defense clause.

I suppose the Obama administration could use lethal force in Syria on the basis of two legal claims.

One would be that ISIL is transnational and is threatening the US embassy in Baghdad, has killed US citizens and is threatening to kill more, and has openly menaced the United States in general, and that the US has the right of self-defense, extending into strikes on ISIL in Syria. It seems to me like awfully thin broth, but as I said, I think President Obama’s rhetoric suggests that this approach may be the one his lawyers favor.

The other would be that ISIL is genocidal and it is necessary to intervene against it to protect millions of Shiites, Yazidis, Shabak, Alawites, Christians and other groups hated by the Salafi Jihadi ISIL fanatics. It seems to me that the [pdf] 2005 UN statement on the responsibility to protect still insists that member states go through the UN Security Council for authorization, and that they cannot just cowboy it, though maybe this is ambiguous.

It might be interesting to see if US envoy to the UN, Samantha Powers, could get Russia and China to go along with a narrow UNSC authorization for the use of force against ISIL. Whether the US and NATO like it or not, the likelihood is that an attack in Syria on ISIL by them will benefit the regime of Bashar al-Assad, which is in the best position to pick up the pieces, which is what Russia and China would want. Presumably the US will go out of its way not to allow the Succor Front (al-Qaeda) to be the beneficiary. While the US says it wants the beneficiary to be the Free Syrian Army, there isn’t any evidence that it could get its act together. So if Russia and China are smart, they’d go along with a narrow anti-ISIL resolution (and after all Russian Chechnya is a 24-hour drive from Aleppo through Turkey, and there are radical Uygurs fighting with ISIL, so the two of them are menaced here as well). Russia’s pique over Ukraine may prevent any such diplomatic agreement, however.

Washington’s blithe unconcern with the post-Axis world order it helped craft via the UN, which forbids unilateral wars of aggression, led to the quagmire in Iraq. Obama once campaigned on a more lawful and multilateral international policy. It is important not only that the president receive congressional authorization for a war (that is what it is) in Syria but that any action be conducted so as to strengthen, not weaken, international legality. ISIL is lawless and brutal, and can only be countered by its opposite. Joining it in lawlessness and brutality is to surrender to it, not combat it.


Related video:

Wall Street Journal: “Obama: Degrade and Destroy Islamic State Threat”

25 Responses

  1. A couple of observations, sir: First, as far as I can tell, neither S embassies nor consulates are “fully extraterritorial,” in the sense that the site would “legally” be Sacred US Imperial Soil that “we” could claim to be defending as if an attack on the Sacred Homeland:

    “Contrary to popular belief, diplomatic missions do not enjoy full extraterritorial status and are not sovereign territory of the represented state.[10][11] Rather, the premises of diplomatic missions remain under the jurisdiction of the host state while being afforded special privileges (such as immunity from most local laws) by the Vienna Convention on Diplomatic Relations.” link to en.wikipedia.org

    And for some context regarding our Imperial extraterritorial history, here’s a good source:

    In the last three decades of the nineteenth century, United States foreign policy utilized significantly elastic approaches to issues of extraterritorial jurisdiction as part of a long-term and focused drive toward establishing overseas empire. While assertively consolidating rising economic, military, corporate, and ideological power in service to imperial ends, U.S. policymakers increasingly discovered that effective projection of power invited (and sometimes seemed to require) novel and sometimes rather strident assertions of extraterritoriality. This article considers a small sampling of these extraterritorial assertions within the context of the U.S. policy approach to a very wide array of jurisdictional disputes in foreign relations during the critical and formative period before the turn to formal overseas empire in 1898. This was a period of time that has beenoverlooked by historians and other scholars of foreign relations despite its significance as the era when innovations of imperial governance were developed and implemented. In particular, U.S. extraterritorial assertions in
    foreign relations between 1877 and 1898 were visible in expansive and durable ways that lay outside of the familiar and oft-studied extraterritorial consular court treaty system. Extraterritorial assertions became a crucial foreign policy tool during this time despite the general presumption against it.
    The resonance of this extraterritoriality in broad policy terms should be seen as the basis for continued assertions of U.S.
    jurisdictional imperialism in the post-1945 hegemonic period.”
    (footnote links omitted) link to swlaw.edu

    So, basically then, our Rulers have been aggressive greedy self-serving critters of the most arrogant kind since not so long after the Founding Fathers “did their thang.” “We” do whatever we want to do, whenever “we” want to do it, and that’s all consistent with the distressed anger of one Maj. Gen. Smedley Butler, with his observation that “War,” as that notion is and has been effectuated by our corporatocracy, “is nothing but a racket.”

    And now, having sown the dragons’ teeth all over the place, and having only “the world’s greatest military” and its massive but clumsy tools and skills and bureaucracy and careerist snares, “we” scramble for some way to deal, effectively and to what end, again? with this huge “crISIS” by blowing stuff up again.

    Some Judeo-Christian context that’s kind of fun in this situation too:

    Context [from the Book of Hosea]
    Israel will Reap the Whirlwind
    …6 For from Israel is even this! A craftsman made it, so it is not God; Surely the calf of Samaria will be broken to pieces. 7 For they sow the wind And they reap the whirlwind. The standing grain has no heads; It yields no grain. Should it yield, strangers would swallow it up. 8 Israel is swallowed up; They are now among the nations Like a vessel in which no one delights.…
    link to biblehub.com Does Bibi, does Hagel, read the Bible and believe…?

    All the churning to invent “legality” to “justify intervention” to protect petro-flow and Business As Usual And As “Improved” By The TPP And Other Innovations, for the benefit of the very few. Not a damn bit of it about keeping the planet alive, or addressing the general welfare rather than the welfare of the generals… No wonder Obama is becoming a shadow presence, I bet he knows there is NO SOLUTION, NO WAY OUT, except for him and his family, post-Presidency.

  2. This discussion is strange. We are worried about legality? Our foreign policy looks as though it is moving into “Hail Mary” territory.

  3. Since when have the United States and its European agency for our military-industrial complex cared about international law when deciding on policies?

  4. On the other hand Russia and China may not trust the US to limit itself to so narrow a UNSC authorization. Putin could broker a deal with Assad as he did over the chemical weapons; I would be surprised if he’s not already lining up another such Syrian finesse.

    • On the other hand Russia and China may not trust the US …

      Why would Russia and China not trust the US? If Obama gave them his word wouldn’t that be a rock-solid guarantee? Give me one example where Obama has said one thing and done another. Okay. That’s enough.

  5. So why doesn’t Assad simply ask the Russians to launch air raids against ISIL? According to this article such a request is perfectly legal, and it would have the secondary benefit of pre-empting any tendency for the USA to launch unauthorized air strikes.

    And Russia could hardly be sanctioned for “interfering” when it would be able to say – quite truthfully – that “the Syrians asked us to”.

    After all, if Putin is as warmongering as the western press says he is then…. why not? What’s the downside for either Assad or Putin?

  6. [Corrected version] It appears that the strategy being followed involves the creation of a Thirty Years’ War-type of destructive-constructive dialectic culminating in the fragmentation of the major independent, non-aligned (with the American lead market-state system) states and powers in the Middle East. In the place of large nationalist, powerfully rivalrous regional states would be created ethnic/sectarian client statelets a la the Gulf States, militarily independently impotent. These permanently manageable non-nationalist, non-ambitious (militarily), almost thoroughly subjacent entities would of course necessarily form part of larger military and economic discipline-imposing zones and organizations: a Middle Eastern “Nato”-type alliance lead by the U.S./Saudi Arabia/Israel and of course a European Union-type neoliberal (or “market state”) economic bloc. In such a way and through such horrendous “birthing pangs” a (religio-culturally) “post-medieval” and (politically) post cold war-nationalist Middle East would arise, one finally approximating Europe, East Asia, and North America in its religio-cultural post-modernity and market-determined political “consensus,” albeit with a stronger residual flavoring of religiously-derived social conformity, a la Japan’s. The risks for the strategists of this longue durée scenario: a thoroughly demoralized, anarchized, and criminalized neocolonial society reminiscent of Central America’s and of other parts of Latin America.

    • Loic, I’ve been curious about what is intended to fill all those bomb craters that we are anxious to dig in Iraq and Syria, and I think your scenario is the the most likely. Never (leave) again.

    • Why does a state cease to be a state simply because it is riven by a civil war?

      Did the USA cease to be a state “in any sense but name” when it underwent a civil war? Did Britain cease to be Britain because Oliver Cromwell thought that he could do a better job that King Charles?

      Syria is embroiled in a civil war. It happens. But it is still “Syria”, and won’t cease to be “Syria” unless/until ISIL wins.

  7. Juan, you wrote:

    It might be interesting to see if US envoy to the UN, Samantha Powers, could get Russia and China to go along with a narrow UNSC authorization for the use of force against ISIL.

    Such a possibility might have existed:

    1. pre-Libya where Dmitry Medvedev’s agreed to a no-fly zone and got regime change instead.
    2. pre-Ukraine where the US created an internal coup and put extremist anti-Russian sock puppets (Viktoria Nuland: “Yats is our guy.”) in place of the legal elected government before starting an (unsuccessful) crusade against Russia.

    The US has so little political capital left in the world or the UN. The United States are almost as bankrupt politically as they are economically ($17 trillions and sinking).

    Alternative: the US could talk to Assad and coordinate any flights and bombing with his government. Frankly I’m shocked to see you blithely advocating for the violation of Syrian sovereignty.

    I struggle to reconcile your tears for Gaza with your endless clapping for Middle Eastern “regime change”. A grander and more abstract voyeurism not so different than Israelis sitting hilltop over Gaza with popcorn at night to “watch the fireworks”.

  8. This pondering is truly quaint: To wonder about legal authority for the U.S. to send in combat units into another country? LOL

  9. 1. The intervention would violate US law first. The constitution deliberately restricts federal use of force to repelling invasions and suppressing insurrections. Only treaties permit foreign wars, subject to the War Powers Act, already violated in Iraq. The US has lost democratic control of foreign policy to the imperial executive and should always say no, except in case of invasion of US territory.
    2. The US has never succeeded in a counterinsurgency effort, except by declaring victory after destroying nations with effects opposite to those intended.
    3. The US is largely responsible for the instability of the region, persistently aggravates the underlying causes, and can only create worse messes and more enemies. There is no possible gain in a military role for the US in foreign policy due to its incompetence and greed; only humanitarian aid roles will achieve anything.

    • Addressing each of your points:

      1. No American president has accepted the War Powers Act as a constitutional Act of Congress and each has been comfortable with ignoring it.

      2. America succeeded in counterinsurgency efforts in the Phillippines with largely positive results also in Colombia, Bolivia and Peru. Think of Northern Ireland as a successful model where the British government’s peace negotiations coupled with tough anti-terror measures largely defused the effectiveness of the Provisional Irish Republican Army as a paramilitary threat.

      3. Agreed. The fracturing of the CIA-backed Free Syrian Army into two separate camps – the other being the Islamic Front – was a huge blow to the anti-Assad movement and American interests in general. An unintended consequence of all this activity is that ISIS came into Syria and became a key player and drove fear into those living under Assad’s rule to support the Baathists for fear that ISIS would oppress Syrian citizens coming under their rule.

      • 1. The arrogation of power by the presidency is indeed the problem; I see no legitimacy. The War Powers Act merely reasserts the Constitutional intention that the executive has an early-response capacity as commander but no policymaking authority. We must correct the defective checks and balances system to halt presidential wars.
        2. Those counterinsurgencies are not closely comparable. The Latin American operations were anti-socialist subversions more than counterinsurgencies: the enemy was the more civilized and hence weaker party, fighting for progress v. dictatorship. The Phillipines have island boundaries and some regional autonomy, and the US COIN was primarily massive killings of independence seekers a century ago. Apparently angry Islamic groups are still there. In the ME I see no path to success with more COIN.

  10. The kidnapping of UN peacekeepers last week is the legal basis for military intervention (less-thin broth).

    The legal discussion to define the impetus to war boggles the best minds and souls; Congo and Rwanda being perfect examples of when “WE” should have intervened.

    I often wonder if Russia’s activities in the Crimea are in part a response to the possibility of losing Tartus should Assad fall. The desire to maintain the ability to project power over the Caucuses without needing to navigate the Kerch Straits? Turkey has been a good ally to the United States for decades, and Moscow may fear the Bosporus too could be closed to them. Surely Iran would charge them through the nose at that point.

    • ISIL did not kidnap the UN peacekeepers. Jabhat al-Nusra/ al-Qaeda did.

      Tartus is not very important and Russian vessels seldom call there.

      • I’m playing devil’s advocate when I suggest that this will be the reasoning, or was the reasoning, behind the way western opinion has gelled around the ’cause’ in the last week.

        I’m no lawyer, but a “US/ NATO war in Syria” does not imply confronting solely ISIL fighters.

        Especially if UN member Israel creates a salient in response to this Succor front crossing into the Golan Heights to capture those peacekeepers.

        If they were still being held it would be an obligation to act. The group fled to Syria’s jurisdiction.

        So too, while Tartus does not accommodate larger ships, and Russia doesn’t seem as concerned about evacuating it’s 7,000+ registered citizens from Syria there — it nevertheless wants to maintain the economic leverage of trade with Syria (et al) so as to offset any possible normalization, or worse – a pipeline that delivers Saudi natural gas.

      • Tartus is not that important now, while most ports are open to Russian ships. In the new cold (warm) war, the neocons are ratcheting up through NATO, friendly secure ports may become very important to Russia. It’s an extreme example, but the single isolated port of Gibralter was crucial for Britain during the Second World War. Clearly Tartus does not have the same ability to limit transit but it remains Russia’s military port on the Mediterranean. As Russia is Europe’s largest and most powerful country, their desire to retain their spot beside Europe’s swimming pool is understandable.

        The question is what the Americans are doing in the Mediterranean (besides stirring up wars, bombing North Africa’s richest country to smithereens, creating millions of refugees).

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