Flag of "the Islamic State"

For once, there’s no legal controversy about American and potential British military action in Iraq. I don’t think anyone’s claiming it’d be unlawful for the RAF to carry out air strikes on “Islamic State” targets in Nineveh province, or near the borders of Iraqi Kurdistan. Not even the Stop the War Coalition raises international law as one of its ten objections to action there.

That’s because Iraq and its allies, including the US and, if it joins in, Britain, are exercising the right of self-defence against armed attacks by “the Islamic state”, in accordance with article 51 of the UN Charter. Neither the US nor the UK is being attacked of course (as far as we know, yet). But the inherent legal right recognised by article 51 is not just the right of individual self-defence by Iraq, but the right of collective self-defence. Allies can band together to defeat attacks on one of them, so the Iraqi government’s requests for help make American and British action in defence of its territory unquestionably lawful.

But what about attacks on “IS” in Syria? The Syrian government doesn’t consent to American strikes on targets in its territory (at least unless they’re coordinated with its own command, something the American’s won’t do). The Americans can’t claim they’re acting in collective defence of Syria. There’s no United Nations Security Council Resolution authorising action in Syria of course, and unlikely to be one given the support of Russia (this year’s egregious violator of international law in Ukraine) for the Syrian regime.

So the legal position as regards air strikes in Syria is less clear; and that’s enough to spook not just Ed Miliband but Her Majesty’s Government, who are likely to propose action in Iraq only. Professor Philippe Sands QC says there wouldn’t even be “wafer-thin” legal justification for action in Syria, and in the UK’s post-Blair condition his merely saying so probably makes it conventional wisdom in media and politics, regardless of whether it’s legally correct. But is it legally correct? I think not.

The US administration, in its letter to the UN Secretary General this week, said

Iraq … is facing a serious threat of continuing attacks from ISIL coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq …

States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq …

The argument is clearly that strikes on Syrian territory are lawful as part of the collective self-defence of Iraq, because Syria is unwilling or unable to end the “IS” threat.

The UN Secretary General doesn’t seem to object to the argument. Nor does the French foreign minister Laurent Fabius, who made France’s legal view clear in two separate statements on Monday, in an interview with BFM TV (the translation is mine)

Si la question posée est : «Est-il possible de poursuivre les groupes Daech en Syrie ?» – puisque vous savez qu’ils sont à cheval sur l’Irak et la Syrie -, d’un point de vue juridique, rien ne s’y oppose.

If you ask the question: “Is it possible to pursue Daesh [“IS”] into Syria?” – because as you know they straddle Iraq and Syria – there’s no objection from a legal point of view.

and at a press conference in New York:

Il n’y a pas à notre sens d’empêchement juridique à ce que les attaques de Daech fassent l’objet de réactions aussi bien en Irak qu’en Syrie. Cela nous semble faire partie, dans l’analyse que nous faisons, de la possible légitime défense, au titre de l’article 51 … nous verrons si la question est soulevée mais nos analystes juridiques nous disent qu’il n’y a pas d’empêchement.

From our perspective there’s no legal obstacle preventing us responding in Iraq or equally in Syria to Daesh’s attacks. That seems to us, in our analysis, to form part of a potentially legitimate defence in accordance with article 51 … we’ll see if the question is raised, but our legal analysts tell us there’s no obstacle.

Nor do Jennifer Daskal, Ashley Deeks and Ryan Goodman, whose piece on this appeared at both Just Security and Lawfare. They say

The weakest link in the chain is the unwilling or unable test. As one of us has written, “The ‘unwilling or unable’ test is now a fairly well settled part of the US government’s legal position. Nevertheless, it remains controversial under international law.” And another one of us conducted an exhaustive study which found that states quite frequently invoke the test, but “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” …

Assuming, arguendo, acceptance of the unable or unwilling test, the U.S. legal argument is sound, so long as the force used is necessary to protect against the direct threat that ISIS poses to Iraq, and that the amount and nature of force is proportionate to suppressing that threat.

It’s entirely fair to say the ‘unwilling or unable’ test is controversial to some extent. Kevin Jon Heller has argued forcefully, more than once, that it is not part of customary international law and that there’s no extensive state practice to support it. And Milena Sterio at IntLawGrrls says

it appears that the United States’ rationale for using force against ISIS in Iraq and Syria is shaky at best under international law, because of lack of consensus in the scholarly community about the “unable or unwilling” test and because of the test’s complex application to the Syrian context …

Yet the former legal adviser to the Foreign Office Daniel Bethlehem QC (while not claiming it represented an accurate or authoritative statement of current international law) did put the “unable” limb of the “unable or unwilling” test forward as Principle 12 of his 16 suggested “Principles relevant to the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors” in a paper last year. He put it like this:

The requirement for consent [under his principle 10, for a state to take action in self-defense against a nonstate actor in the territory of another state] does not operate in circumstances in which there is a reasonable and objective basis for concluding that the third state is unable to effectively restrain the armed activities of the nonstate actor such as to leave the state that has a necessity to act in self-defense with no other reasonably available effective means to address an imminent or actual armed attack.

The suggested principle was criticised by Dire Tladi. I can’t find an open access version of that paper, but Tladi concluded by saying

The proposition contained in principle 12 is based on an erroneous assessment of customary international law and state practice and on an acontextual interpretation of Article 51 …

In assessing what is permissible and what is not permissible under the international law principle of self-defense, other principles such as territorial integrity, the prohibition on the use of force, and sovereignty must be respected. Such an assessment requires that, before force is used against nonstate actors on the territory of another state, either the consent of the territorial state is obtained or a reasonable basis exists for attributing responsibility for the initial attack to the territorial state. To hold otherwise would imply that self-defense takes priority over these foundational principles of international law, a proposition that has no basis in international law.

But self-defence, when properly invoked, must take priority over the other international law principles he mentions, as he would surely agree if the discussion were about one state defending itself against missiles fired by its neighbour’s army. This isn’t a dispute about the relative priority of self-defence in international law, but about the width of the concept. Just asserting the relative importance of sovereignty doesn’t answer that.

Bethlehem himself responded to the criticism as follows:

There are both legal and practical problems with a conclusion that camps on the sovereignty of the reluctant host without regard to the threat emanating from nonstate actors on its territory. The legal problem is that such a conclusion disregards the responsibility of the territorial state, which arises as much from a failure to act as from conduct that is collusive. The practical problem is that no putative victim state faced with an imminent attack by a nonstate actor located in the territory of another state that has failed to take effective action is likely to sit on its hands and be content to absorb the attack. It is likely to act. The conclusion of the comment in question is therefore not credible and, as such, also calls into question the credibility of the law.

This last point is surely decisive. It just isn’t credible to assert that international law regards action in Syria as aggression in these circumstances: if it did, it would be an obvious ass. If Heller, Sterio and Tladi are right it must follow that, once American force has chased “IS” over the border, Iraq must simply put up with a continuing threat – and even put up with Hamas-style rocket attacks into its own territory, assuming “IS” is capable of them. Cuckoo nonstate organisations which found suitably weak host states would be free to attack others with a large measure of impunity. That interpretation of the self-defence principle would enable force rather than limiting it (it would simply enable it by aggressive nonstate actors rather than by states defending themselves), and would undermine the international rule of law rather than promoting it.

So international law must permit a state under attack to respond to and defeat its nonstate enemy, even on the territory of another state, if that state is unable or unwilling to help it. The only real argument is whether Syria is in fact unwilling or unable to tackle “IS”. If it is, then Iraq and its allies can lawfully attack and if need be defeat and destroy it in Syria.

It’s hard to see that strictly legal considerations limit UK action to Iraq, then. The Americans think air strikes in Syria are lawful; so does France; so it seems does Ban Ki-Moon; and so do many if not most international lawyers. It’d just be what Philippe Sands has told the Independent, really. Of course we may find out more about the government’s legal view this afternoon: they may agree with me rather than him.

A final point, not so much on the strict legalities, but on the wider political morality of all this. If anyone seriously believes what the Americans are doing in Syria is unlawful, then they should oppose not only that, but any British or European participation, even in Iraq. To aid and abet the use of force you think is unlawful would be wrong, and Britain, France and the Netherlands will certainly aid the Americans in Syria by shouldering some of the burden in Iraq.

Equally, if we don’t really think the Americans are breaking international law, we should support and help them however, wherever we can. To scrupulously stand aside from any enterprise that could (quelle horreur!) be questioned by a lawyer, pleased perhaps by one’s mature ethical rigour, yet secretly wish success on those who’ll do right in the face of criticism – that would be a pathetic mixture of cowardice and hypocrisy.

I support the government’s proposed action in Iraq, and I’d support it in Syria too.