Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
Lawyer and legal analyst, Ashley Deeks, summarized a number of areas of concern within international law affecting the then proposed US led effort to conduct airstrikes against ISIS last August. These discussions related to a number of options being considered at the time, as justifications under international law, and included among others, the argument for self-defense.
The self-defense argument has multiple sub-arguments under the UN Charter. These include: basic self-defense; anticipatory self-defense, and collective self-defense. The argument that was ultimately chosen by the US, UK and Canada, as well as Jordan, was ‘collective self-defense’.
As Article 51 makes clear, the argument for collective self-defense allows Iraq to ask for other states to help it protect itself from further attacks against it within Iraq by going after ISIS forces in Syria who have attacked in Iraq and withdrawn to Syria. The thinking at the time was that it was not a likely argument because it depends on Iraq’s consent which could be withdrawn and might affect US national interests. So, it is interesting that in fact, that has been the argument chosen to defend the air strikes.
Following the burning by ISIS of a Jordanian pilot, Jordan announced in February 2015 that it would attack ISIS based possibly on a new argument, that of individual self-defense. However, as Deeks points out, the attacks carried out by Jordan would have to be in balance with the type and severity of attack – that of a single pilot – and, as a result would “be more constrained than under an argument of collective self-defense” (Deeks, 2014).
In March, Canada became the third country after the US and Israel to justify its attacks against ISIS in Syria based on an argument for attacking “mischief-making ‘non-state actors’”, an argument similar to the individual self-defense argument but extended to include attacks by states against perceived and specific threats of non-state groups, like ISIS, regardless of arguments regarding sovereignty – which has been floated as an argument for the illegality of the air strikes (Kampmark, 2015).
Key to all these arguments has been Syria’s apparent lack of consent and the invoking of self-defense arguments. James Bezan, Parliamentary Secretary to the Minister of Defense for the Canadian government is quoted in a March 28, 2015 article as justifying their support of airstrikes against ISIS in Syria, saying, “Collectively, the coalition – which includes the government of Iraq – needs to defend themselves and have the right to defend themselves from ISIL [ISIS]” (Kampmark, 2015). This view was further supported by Foreign Affairs Minister Rob Nicholson who argued, “[i]f Syria is unable or unwilling to prevent ISIL from staging operations into Iraq, that is a legal justification to get involved” (Kampmark, 2015).
The argument against this view, however, is Syria’s sovereignty. The self-defense argument evolved under former US president, George W. Bush and Israel, to justify the invasion of Iraq in the 2001 US Congress Authorisation for Use of Military Force Against Terrorists resolution (Kampmark, 2015). It is an argument that ignores the boundaries between states and gives unlimited power to a government for carrying out acts of retaliation and attacks against those who are perceived to be a threat regardless of the state they are in. It does not require the consent of the local government meaning that any government can attack individuals or groups or any target, in fact, that is perceived to be a threat to the attacking country and its interests. In other words, there is no protection that a state can provide its citizens from attacks against them based on another state’s assessment of their level of threat to that state. No one is protected anywhere. And, there are really no limitations, restrictions or criteria for making that judgement.
How and who defines a group as a threat becomes important. It becomes possible to justify not simply the anti-ISIS coalition attacks, but, theoretically, if ISIS becomes the government of a state, it would be justified in going after the anti-ISIS coalition within the borders of the anti-ISIS coalition member states. And, this is a frightening possibility.
Ironically, it really does not matter much as both sides are carrying out their attacks regardless of the legal arguments in favor or against. The need to defend the self-interest of the members of the anti-ISIS coalition is clear. An attack on the USA, UK or Canada might ensure an all-out and devastating war, some might even say, the feared World War III. On the other hand, the reverse is possible if ISIS manages to create a larger pro-ISIS coalition of forces and argue that they are only acting in self-defense. In either case, the dangers remain as the attacks on both sides continue and are escalating. (Deeks, 2014)
These two camps in the argument regarding the legal justification for the strikes against ISIS, the argument of self-defense and the argument for sovereignty, characterize the debate which has become heated because ISIS is a new type of problem as it is a group that claims the rights of a government and state, justifying its own attacks based on its argument for self-defense and sovereignty. (Kampmark, 2015).
What is interesting about all this is that the American planes/drones are flying over Syria without fear of attack by Syria. In other words, if not formally, then tacitly, it appears, Assad is giving consent to the attacks. Syrian forces have not retaliated even though there has been no formal consent given. In this regard, despite the traditional views regarding sovereignty that focus on if Canada is not attacked by Syria then they cannot attack Syria in self-defense, it can be argued that in real, tangible fact, Syria has given consent to the anti-ISIS coalition to attack ISIS targets within its borders. Assad’s ‘inability to gain control’ over the situation within Syrian borders bolsters the assumption that informally he accepts the help of the anti-ISIS coalition forces.
Legal arguments usually follow acts, situations and policies that have already come into place, as in the last 14 year history of attacks by the US within borders in order to justify them. In this case, it seems also to be true. However, the unique problem created by ISIS as a self-proclaimed sovereign state that has yet to be acknowledged by the rest of the world as a state, using a legitimate state as refuge and home base for its own attacks, requires the development of more appropriate legal constraints that can protect states under threat and intimidation such as Syria as well as the US. The legal arguments for the attacks are undeniably there, if shaky in regards to the defenses of sovereignty. However, regardless of the choices, depending on the strength and ability of non-anti-ISIS coalition forces to engage in further armed conflict, the world is facing a serious and real threat of global conflict.