Chris Hanley from TNS opinion and James Downes discuss the ramifications surrounding ISIS alongside the complications of International Law.
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| http://all-that-is-interesting.com/isis-2014#1 |
ISIS in a nutshell
There is no
doubt that the ‘War on Terror’ that culminated around the 2003 invasion in Iraq
has weakened the core pillars of al Qaeda. But despite the
erosion of the terrorist group following a ‘post-2006 surge’ the US and allies
were unable to completely destroy them. The Islamic State of Iraq and the
Levant (ISIL or ISIS) ’rebooted’ in 2011 after successfully freeing many political
prisoners from Iraqi prisons. Now, seemingly out of nowhere, the world finds
itself in a situation where it faces one of, if not, the most dangerous
terrorist groups in existence.
So how did we get here?
The ‘war on
terror’ was a costly ordeal and was embroiled in conspiracy and corruption. As
a result the citizens of the West are now much less likely to back military
exercises beyond their borders. The people are fatigued and politicians now
have to jump through hoops to be able to justify any type of armed conflict,
regardless of the threat posed.
A quick look at
public opinion over the last couple of decades testifies this viewpoint. Whilst
Gallup polls showed that 82% of Americans were in favour of military action in
Afghanistan, 2001 – and 64% for action in Iraq, 2003 – only 36% supported any type
of conflict in Syria in September 2013[1].
Obama threatened military action and nothing happened. Now Syria is one of the
main stumbling blocks for tackling ISIS and Western governments seemingly have
no legitimacy to deal with it.
Is there any legitimacy to intervene?
Well, no – is
the short answer. At least in democratic terms. But there is a whole new
dimension – a legal perspective. International
law is complicated and resolution after resolution continues to redefine what
is the international norm. However, in relation to this topic, the key premise
in discussion is that the use of force in
the territory of another sovereign state is strictly prohibited.
Nevertheless,
there are four key exceptions to this rule that are derived from Article 51 in
the UN charter:
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.
1)
When there is authorization
from the UN Security Council.
This does not sound
too difficult to achieve – but it is worth noting that each of the five Great
Powers, all of which were the victors of the Second World War (the UK, Russia,
France, China and the US), have a veto power. Bearing in mind that interests in
the Middle East are starkly different, a resolution from the council was never
realistically a feasible option. For example, six vetoes have been issued since
2009 and five of them were exercised by Russia: four of which were in relation
to the situation in Syria, with the latest veto concerning the ongoing conflict
in Ukraine.
2) Humanitarian Intervention
This argument is
probably the most controversial to date since so much is left to
interpretation. Furthermore, it has only ever been applied to states – and
unsurprisingly the grounds for action against non-state actors are weak since
they would undoubtedly violate other rights of states explicitly outlined in
the UN charter. Nonetheless, the argument has not yet been applied to this
situation in Iraq and Syria since the threshold, whatever that may be, is a
long way from being reached.
3)
When intervention is
consented by the recipient State
This is what is observed
in Iraq today, where allied states have been welcomed by the Government in the
fight against ISIS. This is the easiest solution but a state cannot be forced
to consent to such action – which leads us to Syria. Bashar Al-Assad has not
consented to any foreign military action in Syria. This definitely complicates the
situation and consequently there have been attempts to redefine the term
‘consent’. A core normative question is raised on this issue. Does consent have
to be explicit or could intervention be tacitly allowed? This is one of the
arguments that has recently surfaced, where Assad has condemned any
intervention on his territory, yet the Syrian Government has done nothing to
disrupt or foil any current operations.
4)
The right to self-defence
i.
Self-defence of the United
States
This argument
should be no stranger to anyone who lived through the 2000’s and it is
ultimately one that is being used again now by the US, with the dictum that if
something is not done now, we are likely to pay for it in the future. Whilst
ISIS might not pose any immediate threat, Obama is adamant that they do pose an
eventual threat to the Western democracy. Therefore, “self-defence” manifests
itself in a proactive engagement.
It is worth
mentioning here that Iraq has a claim to act in self-defence since ISIS
operates both within and outside of their borders. The Iraqi government does
not need to justify its actions to combat ISIS on their soil given the amount
of atrocities they have committed. By taking their fight into Syria, without
the permission of the Assad government however, certain criteria have to be
met. Nevertheless, the general consensus is that they have the right to defend
themselves even if it means that their actions will exceed their borders. Up
until now, only a few have argued that the threat ISIS poses from Syria does
not warrant Iraq’s intervention.
ii.
Collective self-defence
Another branch
of this particular justification is the right to “collective self-defence”. In
this instance, collective self-defence could be argued for since Iraq is
directly affected by the situation on its borders. Furthermore, since the Iraqi
government has the support of allied states in their fight against ISIS –
allied states can argue that this grants them the right to carry this fight
into neighbouring countries. However, this inevitably rests on the question of
whether Iraq itself has the right to act in Syria on the basis of its defence.
iii.
The unwilling or unable
This is a test
that is brought up time and time again in international conflict but its
boundaries are none the clearer. On the 25th June 2014, the Iraqi
government wrote to the UN Security Council explaining the situation with ISIS.
In short, ISIS is actively attacking Iraq and the Syrian government is unable
to prevent ISIS from using their land as their hub. Thus, in the act of
self-defence, the Iraqi government can argue the right to intervene in Syria,
even without the Syrian regime’s permission. Therefore, the US can justify intervention
on these grounds too.
Is there a legal basis?
As discussed
above, there only seems to be a case for intervention on the grounds of
self-defence – and even then the only country that has any real claim to this
is Iraq. So what about the US? Well, their justification lies in the grounds of
collective self-defence. Since the Iraqi government has the rightful claim, under
Article 51 of the UN charter, to fight in Syria on the basis of defending their
own country, the US can also make this plea since the Iraqi government has
welcomed their assistance.
This also has
ground in the fact that Iraq, alone, is not able to hold off the attacks of
ISIS from Syria. Nor has Syria done enough to weaken the organization in the
last two years. Not only this, but the Assad regime has taken few steps to
counter ISIS and many of the regions by which ISIS are operating are arguably
out of the regime’s control. Ban Ki-Moon, the UN secretary General, said
himself that "I also note that the strikes took place in areas no longer under
the effective control of that government"[2]. Therefore, allied states may have the
right to aid on the basis of the ‘unwilling or unable’. Thus, if this argument holds,
permission from the Syrian government is no longer a pre-requisite for intervention.
Why just the US?
So if there is a
legal basis, why is the US the only country to be active in Syria? Why did
France, Belgium, Germany and Spain stop at Iraq? Even the UK has been reluctant
to follow.
One fundamental
reason is that the United States’ efforts have been sufficient so far and Obama
seems confident that they, along with their Arab allies have the firepower to
deal with the threat. Philip Hammond, Secretary of State for Foreign and
Commonwealth Affairs, stated on a visit to the Kurdistan region that they see
no ‘imminent demand’ for the UK to join the strikes. Whilst it is clear from
various statements that the Conservative government does not rule out joining
the strikes should the need arise, the division in Parliament is likely to
stall the UK’s involvement, at least for the time being.
The structure of
governance across NATO states differs substantially as well and this quite
clearly plays a role. Since the financial crisis, it has been harder and harder
for leaders to justify spending precious budget on conflicts abroad – and
especially since the ‘war on terror’; justifications for war have come under
much more scrutiny. It’s unlikely that Cameron wants to be wrapped up in
another Hutton inquiry.
European
governments are generally structured differently to the US. Most European
governments have a fusion of powers and it is this that makes it hard for
executive actions to be taken without the consent of the parliaments. The US on
the other hand has a separation of powers, which designates the powers of the
Commander-in-chief to the hands of the Executive. Moreover, the Bush
administration arguably strengthened these powers, giving Obama much more to
work with on the basis of precedence. It is conceivable that had these powers
been in the hands of Congress, then the outcome would be very different.
Worlds apart
On 9th
November, Obama, without any congressional approval, doubled the amount of US
troops in Iraq from just over 1,500 to 3,000 and surprisingly the media has
failed to scrutinize this. However, as demonstrated by the public opinion
figures in the first section, the majority seem to be against engaging in armed
conflict abroad, and especially one that is likely to be prolonged for years to
come. Without the approval of Congress, nor the public, Obama is playing a
dangerous game.
It is hard to
believe that such an executive action would be tolerated on the European
continent. What then makes the US different in this regard? For one, it’s
obvious that the two sides of the transatlantic partnership have different
approaches to foreign policy. The US has tended to opt for military action
whilst most countries in the EU prefer diplomatic and economic solutions.
However, it’s interesting to note that public opinion doesn’t necessarily
reflect the actions of the government. It would be expected that public opinion
would naturally align with the habits of their national policy agenda but this
is not the case.
A survey
conducted by TNS opinion for the German Marshall Fund earlier this year shows
that opinion across the Atlantic is remarkably close on this matter. When asked
about the type of missions NATO should be engaged in, 43% of Europeans[3];
and 49% of Americans thought that it should be involved in operations outside
of America and Europe. This denotes only a 6 percentage point difference
between the mentalities of citizens across the Atlantic, yet the foreign policy
agendas of their governments are starkly different.
As Obama
requests a further $3.2 billion from the American tax payers to fund his
executive war on ISIS, the public’s patience will continue to be tested. There
is no doubt that Obama’s handling of the situation will be integral to his
party’s success in two years’ time. However, as Obama continues to utilize
widely recognized resolutions drawn from the Bush administration, he is
unlikely to receive much opposition from his allies. Not only this, but as
discussed above, this particular conflict in the Middle East seems to operate
within legal boundaries entrenched in the UN charter.
