Is the United States Bombing in Syria Legal?
On Wednesday September 10, 2014, President Obama announced that he was willing to use air strikes within Syria against targets that threaten the United States. He said, “Our objective is clear: we will degrade, and ultimately destroy, ISIL through a comprehensive and sustained counter-terrorism strategy.” The President also stated that he does not believe he needs separate Congressional approval to carry out air strikes in Syria. On Tuesday, September 23, 2014, the United States began bombing ISIS targets in Syria. Is the United States bombing in Syria legal? The article will analyze the legal basis for the use of force under both domestic and international law.
Domestic Law Considerations
The United States Constitution
The United States Constitution provides Congress the power to declare war. The thought of Congress declaring war seems like an outdated concept considering the last time they declared war was in World War II. Just as the power to declare war seems outdated, so is the term war. These days, scholars prefer to substitute the term war with armed conflict.
War Powers Resolution
In 1973, Congress passed the War Powers Resolution in an effort to limit the President’s power in using military force without permission from Congress. According to the Resolution, the President is only allowed to use Armed Forces in hostilities through 1) a declaration of war, 2) a law passed by congress, or 3) in response to an attack on the United States. In the absence of a declaration of war, the President is required to report to Congress the necessity, authority, scope and duration of the use of force within 48 hours. According to a report by the Washington Post, the White House did send Congress notification under the 1973 War Powers Resolution.
So under what authority is the President legally able to authorize the use of force in Syria? Has there been a declaration of war? No. Is there an emergency brought about by an attack on the US? No, not really. How about a law passed by congress? It may not be a strong yes, but it seems to be a sufficient-for-now yes.
Authorization for Use of Military Force
In response to the terrorist attack against the US on September 11, 2001, Congress passed the 2001 Authorization for Use of Military Force (AUMF). The Joint Resolution granted the President the authority to use military force against those “acts [that] continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States.” The original purpose of the law was to use military force against those who were responsible for the 9/11 attacks. However, the law has since been applied more broadly by successive Presidents to justify all military force in support of a “global war on terror.”
International Law Considerations
Okay, so even if it is agreed that the President of the United States has the authority to unilaterally decide to bomb Syria without permission from Congress, can the US legally bomb Syria under international law?
The United Nations
The United Nations (UN) Charter requires that all countries recognize and respect the territorial integrity or political independence of other countries. In other words, unauthorized military operations within the borders of a foreign country would violate this rule. However, the two exceptions to this rule include 1) actions authorized by the UN Security Council or 2) self-defense. The US is not only a member of the UN, but also serves as one of five permanent members on the UN Security Council. The five permanent members are China, France, Russia, United Kingdom and the United States.
UN Security Council Resolution?
The US government could legally take action under a UN Security Council resolution authorizing the use of force. To date, there is currently no resolution authorizing military strikes in Syria. It is unlikely that a resolution will pass considering that Russia, an ally of Syria, is one of the five permanent members that has the power to veto any substantive resolutions.
The US government could claim individual self-defense, but the exception only applies if there is an imminent threat to US personnel in a state that is unwilling or unable to counter that threat. ISIS is not confined to any borders, does not wear an identifiable uniform and does not recognize or comply with international law. The concept of self-defense against non-state actors on a global scale is relatively new and poses challenges that are not clearly addressed by international law.
The US government could claim collective self-defense – that they are part of an effort to defend the country of Iraq from ISIS. Under this exception, the right for other states to take action could be justified as long as Syria is unable to control its own territory. Iraq would have to declare it was threatened by ISIS forces in Syria, invoke its right to self-defense and ask for assistance from other states. The use of this exception would limit actions only to those necessary to protect Iraq from ISIS, but may not be sufficient to justify actions to destroy ISIS in Syria.
Although not an exception, a country can authorize the use of foreign military force in its own country. ISIS is currently operating in at least two countries, Iraq and Syria. The US use of force in Iraq is authorized because of consent from Iraq. The US currently has no plans to coordinate attacks with or obtain consent from the Syrian government. Syrian officials have said that any US attack inside its borders would be considered an act of aggression unless coordinated with the Syrian government.
Overseas Contingency Operations?
Although not popular within the international community, the US could justify actions against ISIS in Syria by explaining that the airstrikes are part of an ongoing armed conflict with terrorists who pose a threat to the United States. Formerly referred to as the Global War on Terror, the Obama administration now refers to US counter-terrorism activity abroad as Overseas Contingency Operations. Just as the US has continued to use drone strikes against terrorists in Pakistan against the wishes of the Pakistan government, the US may use the same rational to justify air strikes in Syria.
Is the United States bombing in Syria legal? What say you? You decide.
Article by Julius M . Blattner
First Lieutenant Julius Blattner is an Assistant Staff Judge Advocate in the Maryland Army National Guard. He is currently assigned as the International and Operational Law Judge Advocate for the 29th Aviation Brigade. He is also the founder and owner of JM Blattner, LLC, a full service law firm headquartered in Towson, Maryland.
The author, Julius Blattner, prepared the article in his personal capacity. Any opinions expressed in this article are the author’s own and DO NOT reflect the views of the Maryland Army National Guard, State of Maryland, National Guard Bureau, the Department of the Army, or the United States government. Assumptions made within the analysis are NOT reflective of the position of any US government entity.