U.S. Faces Legal Barriers in Battle Against the Islamic State

Melanie Capuano, Associate Editor, Michigan Journal of International Law

The Islamic State (also known as ISIS, the Islamic State of Iraq and Syria, or ISIL, the Islamic State of Iraq and the Levant) has captured the world’s attention with its recent acts of brutality, including mass executions and videotaped beheadings.[i] Under the leadership of Abu Bakr al-Baghdadi, the Islamic State aims to establishing a caliphate, a united Islamic state under the legal code sharia.[ii] A recent CIA estimate puts the number of Islamic State fighters across Iraq and Syria at as many as 31,500.[iii] This figure, in conjunction with the vast territory now under the terror group’s control and the sizable funding available to the Islamic State makes them a powerful jihadist group that rivals Al Qaeda.[iv] It has become apparent to the White House that action must be taken in order to put a stop to the activities of the Islamic State. President Obama, who was elected in part because of the fervent opposition to the invasion of Iraq in 2003, said in his recent speech to the nation, “I have made it clear that we will hunt down terrorists who threaten our country, wherever they are.”[v] President Obama laid out a four-part plan to combat the Islamic State, which included airstrikes, support for rebel fighters on the ground, ramping up counterterrorism efforts, and providing humanitarian assistance to civilian victims.[vi]   The legal issue the U.S. faces in carrying out this plan is that while the legislature has approved the training and arming of Syrian rebel forces, they have not explicitly authorized the use of force by U.S. military in Syria.[vii] The only legal footing the military has within the U.S. to justify the use of force is the congressional authorization of force against the “nations, organizations, or persons” who took part in or were responsible for the terrorist attacks of September 11, 2001.[viii] This is tenuous because while the Islamic State arose out of Al Qaeda, the group is now a separate entity and therefore no longer explicitly covered by the Authorization for Use of Military Force (AUMF).[ix] However, the legislature’s intent in passing the AUMF was to deter and prevent acts of terrorism against the U.S. The Islamic State definitely falls into the category of “organization,” and there may be an argument that the Islamic State is a threat to the U.S. Therefore, President Obama may rely on this historical link and the purpose underlying the AUMF as justification to address the current threat. While normally such a bold exercise of executive power should be condemned, when the safety of American citizens is at stake, whether at home or abroad, bureaucratic red tape should not prevent action, when there is an imminent threat against the U.S. The legislature is unsure about whether a broader authorization of military force against the Islamic State in Syria is wise; but the urgency of the situation could lead to unauthorized military force if Congress continues to lag.   Even if the U.S. is able to overcome the domestic obstacles to taking action against the Islamic State, there are still international issues that need to be tackled. The United Nations Charter prohibits a violation of the territorial integrity of a UN member state (in this case, Syria) without that country’s permission or without a UN Security Council resolution authorizing such use of force. The reason that the U.S. is justified in carrying out airstrikes in Iraq is because the Iraqi government requested assistance; the Syrian government has made no such plea for help.[x] Any member of the UN Charter is able to step in and provide military assistance when a State’s government requests it, but not until such a request is made (at least without UN Security Council approval).[xi] Notably, Syria did offer to assist the U.S. in their fight against the Islamic State, but President Obama is against the Assad regime and refuses to work with a government he does not support.[xii]   Furthermore, Russia is an open ally of President Assad and the Syrian government, which is staunchly opposed to U.S. airstrikes in Syria.[xiii] Russia has said that any air strikes against militants in Syria would be an “act of aggression” and a “gross violation” of international law.[xiv] Russia is in a unique position to veto this proposal as one of the five permanent members of the UN Security Council. This presents a huge problem for the U.S., since without Russia’s support they will be unable to obtain permission from the UN Security Council.   According to Article 51 of the UN Charter, a state may act in self-defense when necessary.[xv] This is one reason the U.S. was able to spring into action so quickly after the attacks on September 11, 2001. Here, the Islamic State has made numerous threats against the U.S., although U.S. government officials have stated that they have not yet detected a specific plan to attack the homeland.[xvi] However, the expedient and massive expansion of the group includes at least 2,000 individuals who have Western passports.[xvii] This leads to increased safety concerns because these people can go to Syria or Iraq, conceivably receive training and weapons from the Islamic State, and then easily return to Western countries to commit terrorist attacks.[xviii] Additionally, the Islamic State has videotaped beheadings of two American journalists.[xix] The threat to American citizens abroad coupled with the realistic ability of the Islamic State to penetrate the U.S. borders may be enough for the U.S. to justify acting without prior UN Security Council approval. If the UN Security Council does not approve the strike soon, this is the strongest legal argument that President Obama has in the international legal community.   Members at the recent UN Security Council meeting did note that some of the actions taken by the Islamic State constitute violations of international humanitarian law and may constitute war crimes and crimes against humanity.[xx] The U.S. ambassador to the UN, Samantha Power, has been quoted as saying that there are members of the UN who plan to join the U.S. in airstrikes in Syria, provided that President Obama decides to follow through with his warning to the Islamic State.[xxi] The U.S. is a superpower with a reputation as the world’s police force. Even if there is only weak legal support allowing the U.S. take action in Syria and prevent the Islamic State from continuing with the group’s barbaric behavior and inhumane treatment of innocent civilians, the U.S. will act.