NYTimes:U.S. Invokes Iraq’s Defense in Legal Justification of Syria Strikes

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SHAFAQNA (International Shia News Association) The United States said on Tuesday that the American-led airstrikes against the Islamic State — carried out in Syria without seeking the permission of the Syrian government or the United Nations Security Council — were legal because they were done in defense of Iraq.

The American ambassador to the United Nations, Samantha Power, officially informed the United Nations secretary general, Ban Ki-moon, of the legal justification in a letter, asserting that the airstrikes had been carried out under a fundamental principle in the United Nations Charter. That principle gives countries the right to defend themselves, including using force on another country’s territory when that country is unwilling or unable to address it.

International law generally prohibits using force on the sovereign territory of another country without its permission or authorization from the United Nations, except as a matter of self-defense. American intelligence agencies have concluded that the Islamic State poses no immediate threat to the United States, though they say that another militant group targeted in the strikes, Khorasan, does pose a threat.

Yet the letter asserted that Iraq had a valid right of self-defense against the Islamic State — also known as ISIS or ISIL — because the militant group was attacking Iraq from its havens in Syria, and the Syrian government had failed to suppress that threat. Because Iraq asked the United States for assistance in defending itself, the letter asserted, the strikes were legal.

“The Syrian regime has shown that it cannot and will not confront these safe havens effectively itself,” the letter states. “Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders.

“In addition the United States has initiated military actions in Syria against Al Qaeda elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The argument seems to have persuaded Mr. Ban to issue an implicit nod to the airstrikes. He told reporters earlier Tuesday that the strikes had been carried out “in areas no longer under the effective control of that government.”

The American government is also citing a Sept. 20 letter from Iraq’s minister of foreign affairs, Ibrahim al-Jafari, to the United Nations complaining that the Islamic State was attacking Iraq from its havens and saying that it had requested the United States’ assistance in defending itself.

Iraq has “requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent,” the Iraqi letter said. “The aim of such strikes is to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders.”

Two legal scholars, Jack Goldsmith of Harvard Law School and Ryan Goodman of the New York University School of Law, said the United States appeared to be on solid ground by invoking the argument of collective self-defense of Iraq, but that the notion that Syria’s sovereignty could legally be violated because it was “unable or unwilling” to suppress the threat would be more controversial. While the United States has long invoked that argument in various contexts, many international law scholars disagree with it, they said.

The United States is also asserting a right to defend its own personnel in Iraq from the Islamic State. American officials said this right, which was not asserted in the letter to Mr. Ban, should be understood as supplementary authority to helping Iraq defend itself directly.

Administration officials have said that as a matter of domestic law, they believe that the United States has statutory authority to attack the Islamic State under Congress’s 2001 authorization to fight Al Qaeda. They also believe that Congress’s 2002 authorization of the Iraq war could provide an alternate source of such authority. The United States has been bombing Islamic State forces in Iraq since August.

Both congressional authorizations provide legal authority for the strikes in Syria, too, the officials contended, because of the Islamic State’s history of ties to Al Qaeda — notwithstanding the fact that the two groups recently split. And, they said, the 2002 Iraq war authorization can be read in part as promising to help foster a stable, democratic government in Iraq, which would include defending it from terrorist attacks.

In May 2013, President Obama announced a new policy for targeted killings under which the United States would generally strike only at specific individuals who were deemed to pose a “continuing and imminent threat” of attacks on Americans. The policy appeared designed to foreclose the possibility of so-called signature strikes, which target groups of people whose identities are unknown but whose patterns of life suggest that they are members of militant groups.

Neither the strikes targeting the Islamic State nor those targeting Khorasan were based on any individualized, case-by-case analysis that a specific person in the strike zone posed a continuing and imminent threat to the United States, the officials said. Rather, the United States was hitting members of the groups based on their status as part of an enemy force.

The officials said the May 2013 policy for targeted killings did not apply to the broader armed conflict now underway in Iraq and Syria.

 

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