Legal case for striking Islamic State is shifting to fit strategy

“Yeah, it’s totally legal, I promise…” EPA/Andy Rain

The advanced disintegration of Syria and Iraq has allowed the gradual consolidation of the power of increasingly unsavoury actors. Under its black banner, Islamic State (IS) is doing its best to challenge the most sacred values of the “international community” and the international legal order.

By attempting to erase century-old national boundaries, IS has directly attacked the principle of inviolability of state borders in a region where state structures are already increasingly precarious. And by engaging in what is widely perceived as “barbarity” and “fundamental horror”, it has brazenly offended the most basic understanding of humanity.

The defenders, promoters and owners of the international legal system could not afford to dither any further – and so it is that the US, and allies sharing at least some of its goals, are intervening in the Middle East once again.

And once again, legal justifications for the intervention are at the centre of international debate.

Cry for help

This time the legal arguments are reacting to a number of factors: their evolving search for a strategy, in a complex situation, in the absence of Security Council consensus and authorisation and on the back of a decade of challenges to the international legal system under the aegis of the “War on Terror”.

The complexity of the situation on the ground and the uncertainty of the extent of military goals have led to a rather eclectic choice of legal arguments and justifications.

The starting point is Iraq, where the justification is fairly uncontroversial; it is, after all, based on the formal sovereignty of the Iraqi state, violated in 2003 and precariously propped up ever since. And while Western politicians’ public rhetoric rests on the notions of humanitarian emergency and potential blow-back, their legal grounds for attacking IS in Iraq can rest comfortably on the invitation of a sovereign state.

But because IS’s sphere of control straddles the border of two sovereign states, Iraq and Syria, any military operation to eradicate them will naturally have to extend into Syrian territory – and explicit Syrian consent is apparently not forthcoming.

Forging ahead

In the absence of an invitation or acceptance from Damascus, the US and some of its allies are claiming they have the right to use force on behalf of Iraq in collective self-defence against a non-state armed group, which the territorial government is unable or unwilling to neutralise.

That legal argument was duly set out in a letter to the UN secretary-general, explaining that Iraq is the victim of armed attacks originating in Syrian territory. The letter was sent one day after the Iraqi government itself submitted a letter of its own requesting such help.

Collective self-defence, duly requested and reported, is legally uncontroversial in itself, and is provided for in article 51 of the UN Charter. But the use of force against a non-state armed group in the territory of a non-consenting sovereign state is a rather different matter.

The violation of territorial sovereignty in ostensible pursuit of a non-state armed group, in the absence of a strong link between that group and the territorial state’s government and without the “host” state’s permission, has never been a widely accepted part of the legal system until now.

Recent examples of this type of action – some related to the War on Terror, some not – may amount to gradual support for such an extension of the legal right of self-defence.

Shifting sand

The nature of this particular case – the ugliness of IS, the increasing regional consensus on the necessity of its demise and the chaos in Syria – may pressure third states to offer support (or at least, not object), and may contribute to the establishment of this right in international law.

But whether this precedent will be a positive contribution to international peace and security remains to be seen. And even if we accept that states have a right to police groups like IS in this way, further complications are sure to ensue.

The right to self-defence, collective or individual, is meant to be a limited right: it only allows the use of force that is strictly necessary and proportionate in order to halt an ongoing or imminent armed attack. That means that if the US discovers it wants to legally extend its military strategy in Syria to target various other actors, it will be forced to produce new justifications.

There are signs this process has already begun. Witness the US’s sudden claims of a threat from a new and possibly non-existent group, Khorasan, aired to motivate and justify the new wave of attacks. That episode was all too reminiscent of the War on Terror era, whipping up support for the use of force against terrorists by generously stretching the imminence of the threat they represent.

The military response to IS has already reminded us that legal justifications for using force are not as fixed as they seem, but are in constant dialogue with the necessities of strategy. As the US strategy remains uncertain, its use of legal arguments will attempt to adapt. Moving from one more or less controversial justification to another, the defenders of the international legal system will adapt it to their own goals.