by Michael Dorf
A number of commentators--including my colleague Jens Ohlin and Yale law professor Bruce Ackerman--have argued quite persuasively that President Obama lacks domestic legal authority to conduct military operations against the Islamic State (IS).
There are really only two possible sources of such authority, and neither works. First, the President could be exercising his inherent power to defend the country against a foreign attack, in which case, at the least, the War Powers Resolution clock has started ticking, but as Ackerman points out, the Obama Administration's views with respect to Libya in 2011 (which I criticized at the time) suggest that the Administration does not regard the WPR as applicable. Second, the President could claim to be acting pursuant to the post-9/11 Authorization for Use of Military Force (AUMF) but as Ohlin and Ackerman (and others) point out, even under the broad view of the AUMF that includes authorization for targeting forces "affiliated" with al Q'aeda, IS is not covered, because IS is not affiliated with al Q'aeda.
Meanwhile, there is a further question worth raising. Even if Congress grants Obama a new AUMF for bombing IS, that would only mean that doing so would comply with domestic constitutional law. We would still want to know whether the use of such force is consistent with international law.
I think the answer with respect to bombing IS in Iraq is pretty clearly yes: IS has attacked the Iraqi government and so, at the invitation of the Iraqi government, the US is providing assistance in Iraq's exercise of its right to national self-defense.
But the picture is different with respect to bombing IS in Syria. The government of Syria has said that it would welcome US airstrikes on IS in Syria but only if coordinated with the Syrian government. Because US policy is hostile to the Assad regime, US airstrikes against IS in Syria will not be coordinated with the Syrian government and thus, by the latter's account, are an act of aggression. Are the strikes in Syria nonetheless permitted under international law?
That question seems to me to implicate US policy elsewhere. Since 9/11 the US has conducted drone strikes in the territory of non-belligerent countries, especially Pakistan and Yemen, with unclear levels of permission from the respective host governments. If and when Pakistan, Yemen, or some other country gave the US permission to carry out such attacks in their territory, the US would have been acting similarly to how it is now acting in Iraq: at the invitation of a host country exercising the right of national self-defense against an insurgent force. But it does not appear that all of the US bombing in Pakistan and Yemen has been with the permission of the host countries. Such attacks have thus been illegal under international law--except perhaps (and it is a very big perhaps) if one regards Pakistan and Yemen as giving safe harbor to irregular non-state forces with which the US is at war.
Even supposing that (proportionate) drone strikes in Pakistan and Yemen were permitted by international law, bombing IS in Syria would still be illegal because, by hypothesis, Syria would not be inviting the US presence and Syria cannot realistically be said to be giving IS safe harbor. The most that can be said here is that the Assad regime has targeted IS less aggressively than it might have, because it saw IS as a threat to some of the other anti-Assad forces. That is not safe harbor and, in any event, the Syrian regime does now seem intent on combating IS. But if the US cannot plausibly claim to be bombing in Syria either with Syrian permission or in response to a de facto belligerency by Syria, then there is no international law justification for the bombing.
Indeed, once one goes down this road, it looks like the Obama Administration policy of training and arming "moderate" rebels in Syria is itself pretty clearly a violation of international law too. That's what the ICJ said in 1986 in Nicaragua's case against the US for arming the contras. Significantly, in that case the US did not argue that it had a right to arm the contras because the US has the right under international law to try to overthrow bad regimes, but that the US was coming to the aid of El Salvador, which was under attack by Nicaragua. The ICJ rejected this defense on the facts but significantly, in the current circumstances there isn't even a fig leaf of a simliar argument.
The US does not say that by arming anti-Assad rebels we are protecting Turkey or some other ally against Assad. I suppose that if I were a lawyer for the Obama Administration I would try to argue that attacking IS in Syria is part of the national self-defense of Iraq, on the theory that Syria is either unwilling or unable to stop the IS threat from spilling over into Iraq, but that is also problematic. As noted above, the Syrians are willing to confront IS, so the argument would have to be that Syria is unable to take on IS. I think a decent argument can be made that there ought to be an international law right of national self-defense to attack enemies in the territory of a non-belligerent state even if that state opposes such an extension of hostilities, so long as that state's own efforts against the non-state enemies are ineffective, but there really is nothing in international law that currently authorizes such a right of self-help in the territory of non-belligerents. And even if this argument were to succeed, it would only provide a legal justification for attacking IS in Syria. It would not provide a legal justification for supporting the "moderate" rebels fighting against Assad in Syria.
So what is the Obama Administration's justification under international law for its military policy in Syria? So far as I can tell, Obama--like some of his predecessors in both parties--has simply ignored the fact that supporting the overthrow of the government of a foreign sovereign that is not attacking or threatening to attack is a violation of international law.
Except when Putin does it.
Now let me be very very clear. I am not saying that Russia's support for anti-Kiev separatists in Ukraine is morally equivalent to Obama's support for anti-Assad rebels in Syria. What I am saying is that the US cannot plausibly criticize Putin (or other aggressors) on the ground that his actions violate international law. They do violate international law, but that does not distinguish them from US actions.
Well, so what? Isn't it sufficient to point out that Putin is using military force to undermine a government that resulted from a popular revolution against a corrupt kleptocrat, whereas Obama is providing military support (in the "moderate" rebel policy) to undermine a ruthless dictator who commits atrocities against his own people? As I said, there is a very salient moral distinction between Russian and US policies.
But something substantial is sacrificed when the US, through its violation of international law, makes sincere resort to international law unavailable as a standard of criticism. We undermine our own credibility more generally and weaken the value of international law. This policy of weakening international law--which, as I have said, is bipartisan--is probably counterproductive in the long run. International law tends to serve the interests of powerful states, much in the way that the domestic law of property serves the interests of those who have property, and so the US has much to lose from the weakening of international law.
Let me float one last possibility. For some years, liberal interventionists like Samantha Power have argued that international law should recognize a responsibility to protect vulnerable civilian populations as the basis for military action. I am sympathetic to the idea in principle but I think that it must be tied to some sort of international process for authorization; otherwise, it too easily becomes a pretext for interventions on other grounds. E.g., Putin, even while denying that he is intervening in Ukraine, cites a duty to protect Russian speakers from the "fascists" in the Ukrainian government. And we in fact have a system for such authorization: the UN Security Council. That system is itself subject to criticism, but then the focus of change efforts ought to be on the Security Council, not the responsibility to defend.
In any event, even if I am wrong and the liberal interventionists are right that there ought to be international legal authority for otherwise unauthorized humanitarian interventions, international law--the UN Charter and customary international law--does not currently recognize humanitarian intervention as a ground for the use of military force. So the Obama policy remains a violation of international law.
Perhaps it's still the right thing to do. Sometimes there is a moral duty to violate the law. But here, as elsewhere, one would have greater confidence in American foreign policy if one had the sense that the government counted the violation of international law as a barrier to its favored policy, even if not an insuperable one.