Back to Bush? The US air strikes in Syria against the ‘Khorasan group’ in the light of ‘preventive’ self-defence
On 6 November 2014, at first glance, yet another message from the war against terror in Syria was spread: ‘The US military says it carried out air strikes against the al-Qaeda-linked Khorasan group in north-western Syria’ (BBC News). By this time, we have gotten used to reports on military strikes against the so-called ‘Islamic State’ (IS) and its fellow factions in Syria and Northern Iraq. Too many news reports emanate from the prevailing conflict area in the Middle East and they mostly are not even perceived in detail anymore. The public debate rather focuses on the big picture. From an ideological or ethical perspective, the strikes against IS terrorists seem to be a just measure to protect the local civilian population – above all to prevent a genocide of religious minorities such as the Yezidi. In the spirit of Hugo Grotius (1583 – 1646), the fight against IS is the archetype of a bellum justum. This mostly reflects the feelings of informed newspaper readers, who are interested in global politics, regardless of the fact whether the air strikes are pointed at the IS or the ‘Khorasan group’.
However, a war considered just does not necessarily match a justified war. This is why states always make efforts to deliver justifications on the grounds of international law whenever they have intervened contrary to the global prohibition on the use of force (as vested by Article 2 (4) of the UN Charter). In this respect, the fight against IS and its factions is an international law multilayer. There is no exclusive legal pattern for labelling this fight legal or illegal. Nonetheless, critics complain about the lack of an UN mandate whilst supporters point out the most disgusting and inhumane excesses of IS terrorism, which must be stopped by any possible means.
International law does not work in such terms of black and white. Instead, this diffuse and border-crossing conflict area requires a distinguished analysis – even though this might annoy some pragmatic politicians. It is true that there is no Security Council Resolution justifying the use of force in Syria and Northern Iraq. But at least in Iraq the international coalition fights against IS upon invitation by the government in Bagdad (see e.g. S/2014/440). Without going into more detail, this official consent legalizes the use of force on Iraqi territory against any branch of islamist terrorism.
The situation found in Syria is different. Nobody wants to refer to Assad’s possible consent (that presumably would serve his interests as a side-line): Being the tyrant’s ally runs clearly contrary to the ideals of just warriors. But fortunately, there is another justification for the use of force: self-defence, as reflected in Article 51 of the UN Charter. The international right to self-defence has existed much longer than the UN themselves; it reaches back until (at least) 1837. In that time, to defend their colony Upper Canada, British troops, on US territory, attacked a rebel group on their steamer Caroline and eventually scuttled the ship down the Niagara Falls. This incident followed a detailed debate, of which finally emerged the limits of self-defence under international law: a situation of self-defence must be ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’. This core of the Caroline incident still lives on within Article 51.
Exactly this well-established principle of self-defence leads us from 1837 to 2014 – or from the Niagara Falls to the Syrian battle field. The fight against IS means the execution of self-defence. The details are difficult to establish and subject to a controversial debate among international law scholars, inter alia: Is self-defence legal even if directed against private actors like IS (which, despite its hubristic name, of course is not a State)? The more coherent answer is yes – as this was already recognized in 1837. Who may be defended against IS? Rather not the US and its allies. But two protégées come into consideration in conjunction with so-called collective self-defence: Iraq, which is subject to IS attacks also from Syrian territory; and the tormented civilian population in Syria. But is the latter, being no state, subject to self-defence at all? This question inevitably leads to the next minefield of scholarly debate in international law: the legality of humanitarian intervention. An assessment of this question would potentially fill some monographs.
Through the fog of these problems of international law on the use of force shines the message concerning the air strike against the ‘Khorasan group’. For these islamist terrorists did not target Iraqi territory. Instead, they are said to directly threaten the US and their allies themselves. US ambassador to the UN Samantha Power mentioned this distinction to the IS already before the Security Council as early as on 23 September 2014 (UN Doc. S/2014/695): ‘In addition, the United States has initiated military actions in Syria against al-Qaida 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 US tried to justify the recent air strikes by the same reasoning: ‘At the time, Pentagon’s operations chief Lt Gen William Mayville said Khorasan militants were in „the final stages of plans to execute major attacks”’ (according to BBC News). This wording is a marginal note at a first glance only. At a second glance, this is not an ordinary statement among others, but a release that seems to fall out of time. The strike against the ‘Khorasan group’ was not meant to defend Iraq or the civilian population, but rather to defend American and European integrity. What is more, no terrorist attack by the ‘Khorasan group’ on allied territory has ever happened so far. (Not to mention that at best only a very few people in the western world have heard of ‘Khorasan’ before.) Thus, the military strike against the ‘Khorasan group’ can only be qualified as so-called ‘preventive’ self-defence.
It is recognized today that no state has to wait for an actual attack until it is entitled to self-defence. This is the Caroline legacy. Problems start, however, when it comes to determining time and probability of the threatening attack to fall within the scope of legal ‘preventive’ self-defence. Confusing terminology like, e.g., ‘pre-emptive’ or ‘anticipatory’ self-defence does not help to solve the problem. (For this reason, to display the neutrality of the term, the general denomination as ‘preventive’ self-defence is written in quotation marks in this text.) Helpful for this assertion is rather an interpretation of Article 51 of the UN Charter as well as the analysis of the relevant state practice. At the end of the day, this leads to the (here shortly summarized only) result that self-defence is also legal in a ‘preventive’ way under at least two alternatives: if an attack will definitively occur in the near future if going unchecked (i.e. if the attack is imminent), or if an attack could occur instantly with sufficient probability, as indicated by a prior record of events sufficiently reliable to establish such probability, if going unchecked. (See more details on these issues in my dissertation „Vorbeugende Selbstverteidigung im Völkerrecht“.) Certainly illegal, on the other hand, is the use of force, even if meant defensively, against an only latent danger. Exactly this, however, was postulated by the so-called Bush doctrine. Former US president George W. Bush tried to enforce this doctrine through his National Security Strategy of 2002 and 2006, but he failed with this strategy because of the reluctance of the majority of states.
After his presidency, Barack Obama was considered an antipode to Bush and henceforth formulated a new National Security Strategy. But as of today it is not too ambitious to state that such paradigm change has not happened at all – at least in foreign policy. The recent strike against the ‘Khorasan group’ can well be understood as the final step back to the Bush doctrine, if the activities of this (with no doubt islamist-terroristic) group generate not more than a latent danger. In any case, the US have not disclosed reliable evidence for the ‘final stages of plans to execute major attacks’, which could eventually allow the conclusion of an imminent attack. Thus, at this state of the issue, there are good reasons to consider the air strikes against the ‘Khorasan group’ illegal under international law. Such a result might also explain the rather short-winded information about the strike. If this single strike is, in the public debate, nothing more than another part of the big operation against IS, objections are not to be expected. Even more, a formal protest relevant under international law would easily be seen as a betrayal of the just cause in the Grotian sense. If the Obama administration really intended to revitalize the Bush doctrine, this tactical dodge in the shadow of fighting IS was successful.
But putting pessimism aside, another interpretation of the recent air strike in the light of ‘preventive’ self-defence is possible. This is because another variation of ‘preventive’ self-defence lies in the twilight zone between legality and illegality: If an attack will definitively occur in the foreseeable future if going unchecked, the legality of ‘preventive’ self-defence might be put in a relation to the harm otherwise resulting from it – i.e. the more potentially harmful the attack is, the earlier the use of force becomes permissible. In other words: If the ‘Khorasan group’ really was preparing massive terrorist attacks in Europe or the US, even forcefully interrupting such preparations early might be legal, if otherwise warding-off the attack would be significantly more difficult. If the USA stroke – effectively and proportionally – through an open window of opportunity to impede worse and manifest preparations of an attack, this operation could be justified without recourse to the much more permissive Bush doctrine.
However, only the future will reveal whether the Obama administration really pursues ‘back to Bush’ or rather a strategy towards a slightly moderate extension of the international law on ‘preventive’ self-defence. In any case, the short notice about the strike against the ‘Khorasan group’ discloses that in 2014 – as well as in 1837 – the contouring of international law on the use of force through relevant state practice is on-going. This has to be observed with care, particularly in Syria.