There is a raging debate as to whether the bombing of ISIS in Iraq and Syria is legal. It is a serious issue because it involves the infringement of the sovereignty of other countries for which US domestic law and international law have strict guidelines that must be followed.
Under Article 1, section 8 of the US Constitution only Congress has power to declare war, that is, make a formal act by which the nation goes to war against another. Without an authorization of the use of military force or declaration of war, under the War Powers Resolution 1973 the President as Commander-in-Chief is required to notify Congress within 48 hours of committing the armed forces to military action and forbids the armed forces from remaining for more than 60 days with a further 30 day withdrawal period.
No declaration of war has been obtained by the President for the current bombing of ISIS in Iraq or Syria. The 90 day limitation has not passed but Congress is currently on holiday and the leaders of both Chambers Senator Harry Reid and Speaker Boehner seem disinclined to hold a vote given the coming mid-term elections in November. Speaker Boehner has even suggested waiting for the new Congress in the new year.
But if there is no authorization what sanctions would Congress have against the President? It could withhold funding for the operations but how could it do that since it was Congress that failed to even hold a vote to grant or not to grant authority?
Another option would be to seek an impeachment of the President but this would fail as his actions are hardly likely to amount to 'high crimes and misdemeanors'.
A last option would be to do nothing and leave the President to justify the war on the basis of international law.
Even if the bombing of ISIS in Iraq and Syria were to have complied with domestic law it must still satisfy the requirements of international law.
The general rule is that a country can not bomb another since this would be a violation of the other's national sovereignty.
Therefore in order to be justified the bombing of ISIS in both countries has to fall within one of the established exceptions.
One exception is that the attack is done with the consent of the country being bombed. This is satisfied in the case of Iraq since the Iraqi government authorized the US to conduct airstrikes against ISIS in Iraq. So there is no need for a UN Security Council resolution for the operation to be legal under international law.
In the case of Syria no such permission has been given by the Assad regime.
The second exception is that the attack has the authority of a UN Security Council resolution. Under Chapter VII of the Charter authority can be given to combat threats to international peace and security. Russia, a traditional ally of Syria and permanent member with veto power has already said the bombing of Syria violates international law so no resolution from the UN seems forthcoming.
That leaves the US to rely on the third exception, namely, collective self-defense under Article 51 of the Charter and on the doctrine of "unable or unwilling" to act. The Obama administration is relying on this defense on the grounds that:
(a) ISIS is attacking Iraq from safe-havens in Syria who is "unable or unwilling" to eradicate them and Iraq has asked for an international effort; and
(b) Pre-emptive self-defense, that is, the US can attack Khorasan (a terrorist organization in Syria) because of an imminent threat to the US and its allies which has to be prevented before it occurs (see Letter to UN Secretary -General Ban Ki Moon, by US Ambassador to UN Samantha Power, dated September 23, 2014).
This is a weak argument. If ISIS is using Syria as a safe haven to attack Iraq, Iraq can use force against those who retreated into Syria but those countries providing assistance (under the umbrella of a coalition) could only do so to the necessary necessary to quell ISIS in Iraq and Ensure that it is unable to conduct future attacks there. Furthermore action by these other states would be subject to the consent of the Iraqi government (LAWFARE – US Airstrikes Against ISIS in Syria? Possible International Legal Theories, by Ashley Deeks, August 23, 2014). This is obviously unacceptable to the US which stated aim is to "degrade and destroy" ISIS. Interestingly, the British Parliament seems to have realized this and authorized the use of force but only in Iraq.
Under the principle of collective self-defense, Syria must be shown to have failed the "unable or unwilling" test but the Syrian government has expressed a willingness to work with the US provided the strikes are coordinated with its government. Here the problem for President Obama is political as well as legal given the long standing cool relations between Washington and Damascus and the need by the US to avoid the appearance that it is helping the Assad regime.
Furthermore under established law collective self-defense does not apply to threats from non-state actors like ISIS or Khorasan though this could change as the law evolves (OPINIO JURIS – The Unwilling or Invalid Doctrine Comes to Life, by Jens David Ohlin, September 23 , 2014). And the doctrine of Pre-emptive self-defense is a weak basis to justify any military operation since it is not accepted by the international community let alone if used against non-state actors.
The conclusion is that the legality of the bombing of ISIS in Iraq and particularly in Syria is questionable since there is no Congressional authority, no consent or UN resolution in the case of Syria and collective self-defense is not available. But there is much blame to go around.
The Republicans in Congress have abandoned President Obama to deal with the ISIS crisis on his own. Paradoxically at the same time they are suing him on the ground that he acts too much on his own like a King. That is not what justice is all about. He who seeks justice must have clean hands.
At the UN, because of the divergent political interests of members, the Security Council can not even pass a resolution to authorize the bombing of ISIS in Syria.
Regrettably the choice for President Obama is either to exist to the law or to take the fight to ISIS. That is the dilemma.
Victor A. Dixon
October 5, 2014