The use of airstrikes against the Islamic State in Iraq and Syria (ISIS), referred by the Obama administration as the Islamic State in Iraq and the Levant (ISIL) or even the Islamic State (IS), has raised serious legal concerns about the legality of the use of force ordered by the executive branch. ISIS is creating a serious dilemma for the West, which can be identified as such: use of military force against an eventual threat at the cost of violating core national and international legal principals and values.
The sudden rise of ISIS and its fast path in taking territories in Iraq and Syria has been one of the main topics at the forefront of government narratives and the media. ISIS, according to CRS experts, is a “transnational Sunni Islamist insurgent and terrorist group.” ISIS took over large segment of northeastern Syria and northwestern Iraq. The ultimate objective of ISIS is to establish a caliphate in Syria and Iraq under the leadership of Abu Bakr Al Baghdadi. According to the CIA spokesperson, the ISIS forces could fluctuate as of September from 20,000 to 31,500 individuals. At the difference of other groups, ISIS is extremely well financed and structured. “The group is sophisticated, strategic, financially savvy and building structures” argues Patrick B. Johnston, “that could survive for years to come.” ISIS gets its wealth from oil production and wealthy foreign donors. So ultimately, the West will have to find a way to disrupt the flow of money to ISIS and identify the wealthy donors.
Early September President Obama announced before the nation that the US will have to engage military, only through airstrikes, against ISIS. President Obama declared the use of military force to fight ISIS and ultimately ‘degrade and destroy’ it. He told the nation that ISIS poses a direct “threat to the people of Iraq and Syria, and the broader Middle East” and “If left unchecked, these terrorists could pose a growing threat beyond that region, including to the United States.” For now, as underscored by Obama in his speech, ISIS does not represent an immediate security threat to the United States. The use of preemptive actions, adopted from the Bush doctrine, is a clear shift from the Obama doctrine.
Two documents are often referred in order to understand the legality of the use of force by the US President. The War Powers Resolution of 1973 and the 2001 Authorization for Use of Military Force (AUMF). As argued in his September 10th speech, President Obama claims that “I have the authority to address the threat from ISIL.” This question of authority has become a real problem for constitutional lawyers and the legislature. Let’s reflect on the type of authority Obama is speaking about (listen here a discussion between two legal experts on the constitutionality of the war against ISIS).
First, the 1973 War Powers Resolution drafted and adopted by the Congress at the end of the Vietnam war changed to so degree the legality of the use of force by giving more autonomy to the President at first before using congressional approach. The 1973 War Powers Resolution adapted the use of force to its global environment allowing quick response if necessary. However, it requires the President to obtain congressional approval after 60 days of the first use of force, and the President must stop the ‘hostilities’ 30 days after if he fails to receive Congress’ approval. The war on ISIS is once again underscoring the complexity of the US Constitution. Does the Constitution shape politics and policy-making? Or is Politics cherry-pick the Constitution for its end? As argued by Ben Wittes, a senior fellow at the Brookings Institution, “The Declaration of War is kind of a dead instrument of national law.” It is even worst when the Congress is not doing its job of balancing the power of the executive branch. The current Congress is obsessed with the looming November 4th elections and won’t do anything until then. The structure of electoral system in the US has made governing a second task well behind campaigning and fundraising. Obama is taking advantage of it, as any other Presidents would have.
Second, the AUMF drafted on September 21st, 2001 and soon after adopted by Congress consists in (read here a previous analysis on the AUMF)
That the President is authorized to use all necessary and appropriate force against those nations, organization, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2011, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or person.The problem with the AUMF is that it does not apply to the war on ISIS for one simple reason: the precedent established by the Bush and Obama administration has been the use of the AUMF in order to go after members of Al-Qaeda and its ‘associate forces.’ Even though ISIS emerged from Al-Qaeda in Iraq, ISIS is not an associate force, or even an affiliate of Al-Qaeda, it is in fact a separate entity that split from Al-Qaeda years ago, some argues in 2006. As exposed in a 2014 CRS Report, the experts wrote that “In recent months, Islamic State leaders have stated their view that their group ‘is not and has never been an offshoot of Al Qaeda,’ and that, given that they view themselves as a state and a sovereign political entity, they have given leaders of the Al Qaeda organization deference rather than pledges of obedience.” Professor of Law at Yale, Bruce Ackerman in his latest op-ed in the New York Times, writes that “it’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq.”
Last but not least, the latest US and Western military intervention and airstrikes against ISIS violate to some extent the core basis of international law in the use of force embodied in the Charter of the United Nations. Because the US, France and Britain, three members of the UN Security Council, knew that they would have never been able to adopt a UN Security Council Resolution (UNSCR) allowing the use of force threatened by an eventual Chinese and/or Russian veto, decided to go alone. Russia and China would not have accepted to vote and adopt a UNSCR after the turn of events in the 2011 war in Libya mandated by a UNSCR. In recent years, the West has criticized Russia for using unilateral force to advance its national interests and influence, but the West has done the same against ISIS. Certainly, the West is not looking at occupying neither Syria nor Iraq, but it has nevertheless used military forces against a perceived threat abroad without an international legal authority. The use of military force is in direct continuity of the war on terror launched by President Bush giving some sort of ‘moral duty’ to destroy any terrorist threats anywhere in the world.
Unmistakably, this piece is not seeking to give legitimacy to the existence of ISIS or its cause. ISIS has demonstrated an horrific degree of violence and horror used in order to assert its
power and undermined anyone with different belief system and ideology. Experts and journalists have demonstrated that ISIS is creating a real power vacuum in the region and cannot be left unchecked. However, the West ought to abide and believe in its own legal system and international principles and values. Violating them would create a terrible precedent and demonstrate their inutility. ISIS has been a difficult problem for Euro-Atlantic members as it has been attracting a large number of westerners deciding to join the cause in Iraq and Syria. The numbers are estimation but believed to be around 2,000 westerners counting 500 British and 700 French citizens.
The West is facing a difficult threat in ISIS, as it has been able to shape and advance a narrative attracting individuals to join its cause. For such reason, the use of the words ‘destroy’ and 
‘degrade’ by President Obama was an obvious rhetorical and strategic mistake. From a public opinion standpoint, Obama was able to look strong domestically and finally been perceived as a though foreign policy chief (at least in theory). But the execution of western journalists/humanitarian workers had an impact in the decision making of the Obama administration. They were/are facing a moral dilemma: on the one hand, there is a legal problem, on the other hand there is a drive to defend ‘western lives’ from ISIL – Should such defiance go unpunished? From a foreign policy/strategic standpoint, these two words are an obvious miscalculation. They are fantastic tools of recruitment for ISIS. ISIS can shape its narrative and ideology around the fact that the West does not want to recognize its existence and right to be. The identification of a clear threat to its existence permits ISIS to frame an ideology and make individuals fight for its cause. From ideational standpoint, Obama is now speaking like a neo-conservative. He is adopting words that would have been expected from Dick Cheney, Donald Rumsfeld and George W. Bush. ISIS may only represent a future threat to the security of Western homelands, but it has already seriously shaken up Western commitments to its own values and principles. Ultimately, one should wonder about a simple question: Is the West undermining the legal national and international system developed, promoted and defended since the end of World War two in order to ‘destroy and degrade’ ISIS?
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