by Ameya Naik
International media attention has been focused once again on Daesh—the most appropriate acronym for the Islamic State Caliphate—after the gruesome immolation of Jordanian Air Force officer Lt. Moath al-Kasasbeh, and the claim that an American hostage, Kayla Mueller, was killed in the latest round of Jordanian air strikes. The families of the deceased are among the newest, sharpest, and perhaps best entitled voices to join a growing chorus demanding effective action by the United States and its allies against Daesh, in Iraq and Syria alike.
The basis for U.S. military action on Syrian territory, however, remains unclear; the Obama administration’s current justification remains highly controversial. Previous attacks apparently targeted a secretive al-Qaeda cell known as Khorasan, but a similar justification cannot attach to attacks against Daesh. Under the Authorization for Use of Military Force of 2001, only al-Qaeda and “co-belligerent” organizations may be targeted. Daesh, publicly opposed by al-Qaeda, and actively fighting against (AQ-affiliated) Jabhat al-Nusra in Syria, is in no way such a co-belligerent.
It is true that the Iraqi government has requested assistance against Daesh, and a number of nations have responded. Even Iran has bombed Daesh targets at Baghdad’s behest—but only in Iraq. The same request would entitle U.S. forces to attack Daesh on Iraqi soil as well, but Iraq can consent only to actions taken on its own territory. Only the government of Syria can authorize U.S. action in Syria.
In fact, the U.S. government has sought no such consent, arguing instead that Syria has proved “unable or unwilling” to act against Daesh. That justification is, first, a recent and controversial innovation in international law; second, as it pertains to Syria and Daesh, visibly untrue. Bashar al-Assad’s regime, as the only Syrian party commanding air power, is all too able to attack any target in the country. The regime has explicitly offered to “coordinate and cooperate” with such actions—but does not consent to actions not thus coordinated. The Assad regime and major rebel groups actually both protested U.S. air strikes conducted in 2014!
Most contentious of all, however, may be the claim the Obama administration has made to the authority to order such attacks under domestic U.S. law. Since the 2011 attacks in Libya, this government has asserted that the President may order any use of force “reasonably determined” to be in national interest, and that while Congress still has the exclusive power to declare war, Congressional approval would not be needed for actions that were not intense or sustained enough to be considered “war.”
This argument cleverly seeks to exploit the gap between jus ad bellum, or the law of recourse to force, and jus in bello, the laws of war, which govern the conduct of hostilities. The key question it raises is whether a state can act in self-defense without thereby being “at war”? If it can, then at what point does it cross that threshold—when do a state’s actions place it in a state of armed conflict, subject thereby to the laws of war? President Obama, it seems, believes that airstrikes against Daesh do not amount to waging war (though he’d still like Congressional approval to do that, too.)
This continues Obama’s odd adherence to a Bush-era quest for loopholes through legal innovation. Bush’s lawyers famously claimed that the war against al-Qaeda was a new category of armed conflict—”transnational“—to which existing laws of war do not apply. That claim was rejected by the U.S. Supreme Court itself, which held that international humanitarian law recognized no such unexplored category. In response, Obama’s Justice Department has sought to bypass that body of law entirely—by claiming that the actions he ordered do not amount to any kind of war at all.
This latest attempted innovation is likely to meet with no more success than the last. As a 2014 report by the New York Bar notes, this argument is tenable only to the extent that lethal force is not employed. There simply cannot be an instance where U.S. forces are lawfully ordered to kill persons on foreign soil, unless the U.S. is “in an armed conflict”—i.e. at war—with the party targeted for killing.
Scholars of the law of war have convincingly argued that there is no way to have recourse to force, yet still avoid international humanitarian law obligations when conducting hostilities. A state may act in self-defense and not thereby be at war—but in that case it is restricted to non-lethal actions, and cannot derogate from human rights law at all. A government that claims the “unreviewable power to kill anyone, anywhere, at any time, based on secret criteria and secret information discussed in a secret process by largely anonymous individuals” does irreparable damage to the rule of law, both domestic and international.
Force, even lethal force, may yet be needed to protect the people of Iraq and Syria from Daesh’s atrocities. But the adherence to law and principles of human rights—chief among which is the protection against arbitrary or extra-judicial killing—is the central distinction between protectors and persecutors.
About the Author
Ameya Naik is a dual degree MALD-LLM student at The Fletcher School, with a focus on rule of law in post-conflict states. He is a research scholar at The Takshashila Institution, an independent public policy think-tank based in Bengaluru, India.