My understanding is that US does not recognize Asad regime in Syria. Maybe this could be one of the justifications for the proposed US bombing of IS in Syria. What will Australia gain by becoming involved in this operation? what will the Middle East look like should IS be defeated? does the west desire the emergence of a Kurdish state?

There are at least two potential legal justifications (although neither has been explicitly invoked as far as I can tell).  

First, the bombing could be justified under the emerging norm of Responsibility to Protect.  This would be a more general form of the genocide convention which obligates states to intervene against genocide with no higher legal authorization needed.  

Second, the bombing could be justified under the self defense doctrine.  ISIS has framed its struggle in much larger terms than simply Syria/Iraq.  ISIS has conducted or inspired operations around the world.  All states have a right to self defense as recognized under the UN charter and customary international law.  One could argue that this provides sufficient legal justification and would be similar to the cruise missile attacks on al Qaeda in Afghanistan in the 1990s.

Yes the US other countries do not recognise the Syrian government however it is the only entity that resembles a government and the Syrian government is still recognised within the UN system.

In regards to R2P, this is an UN assembly agreement which all nation-states have ratified and as yet in not a convention nor does it have any legal standing. Given the situation in Syria it would be difficult to identify the who is the culprit in the killing of civilians. Plus one of the keystones of R2P is it is the responsibility for the nation-state to ensure its citizens are safe and protected. It gets more complicated when the nation state is one of the organisation who is killing minority groups.

The right to self defence is probably the most logical yet even this one is a long bow to draw in this situation. While it can be claimed that IS has planned or carried out attacks against US coalition members these have been in various countries and it is only the Middle East that is being attacked. Sure the IS in Indonesia would pose a great threat for US/Aus than Syria does given its regional proximity.

To be clear I don't think either are actually compelling justifications from an international law perspective. They are at best plausible justifications that could be invoked if anyone ever got around to trying to legitimize the policy response to ISIS.  There has been almost no discussion of this.  In contrast to the Clinton and even Bush Jr. administrations the Obama administration is strikingly unconcerned about having international law behind its military actions.

Yes I agree however I do believe it is an important issue. George Bush Jr used the Just War Theory to justify his invasion of Iraq and the Aus Government has claimed the US government has provided legal justification for the latest round of bombing

Are you asking about the international law answer, "international community" perspective on legal justification, or US-centric justification?  If you are asking for the international law and norms perspective, then that is one answer.  If you are asking about the various states' perspectives, then they are all different answers. For example, Turkey has a domestically appropriate reason since the attack on their soil -- right of self defense --where before then it was not domestically palatable because Turks are in conflict with the Kurds and bombing IS was seen as helping their enemy Kurds (different Kurds, but they don't really differentiate).  I might have a deeper answer for you from the US perspective in a little while.

I would be very interested in the US perspective and I take your point regarding the international law and the international community. I  understand the Turks reaction to the attacks on their territory and the use of the right of self defense, however I can't quite equate the US/Aus situation with the right to self defence.

Christine, sometimes the answer is right in front of us yet we don't see it. Your answer is found in your premise.

As you pointed out, The Iraqi government has invited (actually they begged) for the US to intervene/assist against ISIS/ISIL. Yes, we definitely have a national security interest here, but we are actually acting in defense of an ally against an aggressor. Whenever that happens, State borders can be challenged. In this case, ISIS/ISIL has effective control of territory in Iraq and in Syria.

Where ever ISIS/ISIL is in direct conflict with Iraq is fair game, especially if the local State is unable to effectively stop the aggression. The US (and her allies) are limiting strikes to ISIS/ISIL positions in Iraq & Syria in reference to this conflict. Any other locations outside of this area (such as drone strikes in other regions) follow a different area of International Law (generally the right of self defense).

US (and Ally) forces made several excursions into northern Pakistan going after Taliban and Al-Qaeda affiliates during the Afghanistan conflict. Sometimes with, sometimes without Pakistani approval, but considered appropriate.

Think of it in terms of WW2. The Allies did not restrict attacks on the Nazis to only within the borders of Germany (and her allies), they also attacked the Nazis in territories that they controlled outside those German borders (France, Poland, etc).

Christine, I hope that I understand your question right, as I am still at the very beginning of becoming acquainted with international law. If you are interested in the possible legal foundations of a US intervention in Syria under international law, you might find this useful.

Let's exclude the R2P from further considerations, as it is my understanding that its implementation would require the approval of the UNSC (please correct me if I'm wrong!).

There are two other possibilities for legally intervening in Syria: first, consensually using the concept of intervention by invitation (as it is the case for Iraq), and second, nonconsensually using the right for individual and collective self-defense under Article 51 of the UN Charter (see also Art. 2(4). The latter would be possible if (i) Syria is responsible for an armed attack against the self-defending state, or (ii) Syria is unwilling or unable to stop armed attacks against the self-defending state launched from its territory. For further reading on these conditions, you may want to consider the ICJ's decision on Military and Paramilitary Activities in and against Nicaragua (1986), para. 194.

Interestingly, President Al-Assad did invite the US - but only under the premise of "coordinated action". President Obama rejected this offer. However, the US argues that while it cannot support atrocities committed by the Syrian government, this invitation proves that Syria is unable to stop the armed attacks launched by the IS. Hence, the US combines the concepts of invited intervention by the Iraq and the right for individual and collective self-defense, arguing that fighting the IS does not stop at Iraq's borders and that Syria is unable to stop the IS on its own territory. However, this argumentation is not uncontestable. The weakest point in this argumentation might be rejecting Syria's offer, as it can be argued that intervention by invitation should take precedence over violating the affected state's sovereignty on the basis of self-defense. For a brief overview on the topic, check out Claus Kreß' eye-opening article on justsecurity.org! https://www.justsecurity.org/20118/claus-kreb-force-isil-syria/

As for the strikes against Taliban and Al-Qaeda in Pakistan, the US has not been explicitly invited. Still, it can be argued that drones are deployed with the tacit consent of Pakistan, as it does not explicitly express non-consent. However, this case is not easily transferable to Syria because Assad would surely express non-consent.

Hope this helps!

There are only three conditions under international law that justify a country using military force against another, and none of these apply to Syria.  First, the United Nations Security Council can pass a resolution authorizing the use of force under what is referred to as Chapter VII (the authorization is found in Chapter VII of the U.N. Charter).  Such a resolution stipulates the conditions and means through which countries can use force.  Technically the Council authorizes a U.N. force to intervene, but over the past few decades, it has also authorized individual countries and regional security bodies (such as the African Union) to do so).  Since the U.N. Charter is legally an international treaty and all countries in the world are members of the U.N., the Council authority is absolute.  In the Syria case, the Council has refused to authorize the U.S. or NATO to use force, and therefore any use by the U.S. would not be legal.

Second, individual countries are permitted to use force in self-defense even without U.N. authorization.  Self-defense usually means protection of territory, population, and independence, however, this has been terribly abused over the years, with countries taking a very broad definition of self-defense to justify what have been clearly aggressive acts.  The U.S. cannot credibly claim self-defense in this case.  Syria in no way threatens the U.S. 

Third, countries can intervene if they are invited to do so by the legitimate sitting government of the country.  Syria is tricky, because they are in a state of civil war, which means there is no single entity that can claim to be the official government (that's what a civil war determines).  A rebel groups can "invite" the U.S. to intervene, but this again is tricky, since there are a large number of rebel groups and none of them individually control enough territory to claim government status.

A country cannot use military force simply because it doesn't recognize or like the target government (that is called an invasion, which is illegal under international law).  Nor can it launch attacks to change the government or regime.

In short, there is no legal basis for the U.S. to act in Syria.

Thank you Bruce.

I came to the same conclusion that there was no legal basis for the US to act in Syria. The self defense argument based on the Just War Theory does not hold water either. Taking this a step further does this mean that the US and allies are committing an act of state terrorism? 

Mr.Bratz, Nice presentation of points (and of just because we agree).

I didn't realize that Pr. Assad actually requested US assistance against ISIS. I'm sort of surprised by that considering the support that Pr. Obama has given to forces trying to eliminate him (including Al-Qaeda & ISIS affiliates). Thank you for the link.

By the way, I intentionally stayed away from the drones issue because I believe that's is separate and needs a long complicated discussion to clarify. My example of the excursions into Pakistan was referring to conventional military force.

Mr.Cronin, I think you ignored your own point: "Second, individual countries are permitted to use force in self-defense even without U.N. authorization."

The Iraqi government specifically requested assistance. The US forces involved are not going after Syrian forces, but the ISIS/ISIL controlled areas in Syria which are also being used against Iraq.

The US isn't claiming Self-Defense, it doesn't have to because Iraq is. Iraq is acting in self-defense against ISIS/ISIL, therefore any ally is able to assist in that when asked. That makes it legal. Your own reasoning/position defends it.

Mr Mcginness,

I understand your reasoning but I would question the conclusion on the grounds of state sovereignty. While Iraq did request support from the US and allies Syria requested very limited support that did not necessarily include the bombing of the country. The leap that one country can bomb another just because the first country is acting in self defence seem a very long leap and give the history the US has in the region a convenient rationale for the action. One could ask is the situation the same in Yemen where there has been no requested but there has been US action often under the guise of the Saudi air force.

Yes, Iraq can request U.S. assistance to fight ISIS in Iraq, but it has no authority to request U.S. airstrikes in Syria, which is the question that was posed.

Yes I agree. Just a side issue then does the attacks against Syria by the US and allies amount to state terrorism? 

No, it is aggression but these are acts or war not terrorism.  Terrorism are acts or threats of violence for the purpose of spreading fear and terror in the pursuit of a political or social goal.  U.S. and allied actions are military acts aimed at defeating an adversary, which is the definition of armed force.  Not every act of violence is terrorism.

Mr.Cronin,

By your rational, the only country that has a right to strike at ISIS/ISIL in this conflict is Iraq since they are (currently) the ones directly being attacked by ISIS/ISIL forces staged in Syria. No one else can assist.

Aside from being a wrong interpretation of what you already provided, that wouldn't even remotely make sense. Especially when Iraq doesn't currently have the capability to do anything about it.

When you have an aggressor force that is straddling a border like you have here, they do not have the right of a safe zone unless they are being protected (or dealt with) by the "host" State.

In this situation, Syrian forces have no control over the areas in question and ISIS/ISIL are using those areas in their efforts in both Syria and Iraq. As you pointed out, Iraq has the authority to defend itself. So does anyone supporting Iraq (allies) in her efforts to defend herself also.

It should be noted that US (and Allies) strikes are strictly against ISIS/ISIL positions and not Syrian positions.

As pointed out by Mr.Bratz, Syria has requested help against ISIS/ISIL forces which emphasizes they do not have control over the area. It basically comes down to thew fact that ISIS/ISIL is in control and until Syria can take the territory back, that territory is no longer Syria, its belongs to the Caliphate.

There is a reason no one is complaining about US (and Allies) strikes against ISIS/ISIL targets in Syria on the behalf of Iraq.

You must have misunderstood my point.  Yes, the government of Iraq has the right to invite the U.S. or any other country to assist it in fighting ISIS in Iraq, but not to take military action in Syria.  Syria  is a sovereign state.  A neighboring state cannot "invite" a third party to invade another state.  The Syrian government has not asked the United States to launch air attacks on its territory; this is just absurd.

In 1970 the U.S. invaded Cambodia (and Laos) under the theory that Viet Cong forces were using that territory to launch attacks in Vietnam and that the South Vietnamese government asked the U.S. to take this action.  It was considered by virtually all countries at the time to be an illegal invasion, and it was.  In 1983 the U.S. invaded Grenada at the "invitation" of several Caribbean nations, another act that was universally considered to be illegal since no one can request an invasion of their neighbors (the other rationale, that U.S. medical students were in danger, is a separate issue, although that turned out to be a fabrication).

Mr.Cronin,

Clearly we have a disconnect here so let's go ahead and take this in steps.

Facts: ISIS/ISIL (basically Al Qaeda 2.0) has been able to capture and effectively control northern and western territories in Iraq as well as Northern and Eastern territories of Syria. They are continuing attacks against both Iraq and Syria, declaring themselves as the new Caliphate.

Facts: ISIS/ISIL personnel, Command & Control assets and Logistical support used against Iraq are in Both Iraq and Syria.

First Question: Iraq can clearly attack ISIS/ISIL forces in Iraq, but can they (within the boundaries of "Self-Defense") attack ISIS/ISIL forces in Syria since they are also being used against directly and indirectly against Iraq?

Hi,

My answer would be no the US has no mandate from the UNSC or an invitation from the Syrian government to attack ISIS/ISIL. .The Self Defense is not applicable in this case  as the US is not under direct or indirect threat

 I agree that it is an invasion/war that is being undertaken in Syria and as to whether this is legal is the question. From my research it is an illegal war

There is absolutely no legal justification for a Western attack on Syria and unlikely to be one given China and Russia's alliance with the Asad regime. Any such attack would be illegal under international law and would be as stupid as the  invasion  of Iraq which was America's  ( and the world's)  biggest foreign policy blunder in the last 70 years.

Agreed. However it does not appear to have stopped the US and allies from undertaking such an action

I know. I am in the UK right now and David Cameron is seriously contemplating going to Parliament with another request to bomb ISIS in Syria and Northern Iraq . There is absolutely no ethical or political justification for this and the consequences would be absolutely horrific.   Ramesh Thakur has just published a damning  condemnation of Australian moves in this direction in the Japan Times.

http://www.japantimes.co.jp/opinion/2015/09/06/commentary/world-commentary/australia-risk-much-air-raids-syria/

Hi Kevin,

Yes our incompetent government  (Aus) will decide in the next couple of days whether to join the US in bombing Syria.  I think they will take this step partly to raise their profile on the home front in regards to security  not that the average Aus wants to bomb anyone and partly because we always follow the US lead

Thanks for the link I will read it with interest

The problem is that agents in the international system develop their interests almost independently from international law and then use it to justify their actions. To quote the retired US Air Force colonel John A. Warden III: "You never ask a lawyer 'can I?' you say what you want to do and ask for the way to do so legally." (Dill 2015: Legitimate Targets? 216) In my previous answer I have laid out how the US actually argues. That is, it blurs the line between intervention by invitation in the Syrian case, where Assad expressed a “conditional consent”, and Iraq’s right to collective self-defence. (See my previous post) This rationale is new in international law and there are good arguments for and against it.

While normatively agreeing that US/AUS bombing in Syria is in many incidents wrong and not even effective, I would stress that there is no one true legal answer to your question yet, Christine. Hence, I have to ask you what you really want to know. Do you want to know what possible legal rationales exist or do you want a rationale for your statement that the bombing is illegal?

Christine, you need to take it in steps. I'll pose the same question to you.

Given the Facts (posed to Mr.Cronin several days ago), Does Iraq have the authority to attack ISIS/ISIL forces in Syria that are being used against it?

As for the references to the Iraq conflict (Re-initiated in 2003), that's tangential to the question imposed. Should be a discussion/debate in another thread.

Agreed. 

Christine,

Okay so given the facts on the situation, we agree that Iraq has the authority to defend themselves and strike ISIS/ISIL forces in Syria that are being used against them.

Now, for the sake of time let's look at the next several questions IN ORDER.

2) Agree/disagree - (Fact) Iraq does not currently have the ability to fight an aggressor such as ISIS/ISIL. Question: Does Iraq have the authority to request assistance from other countries to help with dealing with an aggressor force (ISIS/ISIL) in self defense?

3) Agree/disagree - If those countries agree to assist Iraq in their self defense, are they authorized to attack the aggressor (ISIS/ISIL)?

4) Agree/disagree - If the assisting countries are authorized to attack the aggressor (ISIS/ISIL) in assisting Iraq in self-defense, can they attack the aggressor (ISIS/ISIL) wherever Iraq would be authorized to attack the aggressor (ISIS/ISIL)?

A lot of situations (such as this one) tends to be easier when you break it down into steps as I am doing here.

Of course, If your answer is no/disagree to any of the above posted questions, I would have to ask what is your reasoning behind saying no?

Hi Jim,

Yes I do agree in principle with the above but I still have some problems with Iraq requesting the allies to bomb Syria. If the bombing was just related to Iraq not question about it. However, it is not Syria that the bombing is against it is an entity without any sovereignty so is Syria sovereignty being compromised by such an action as they have not requested the action.  

Christine, It becomes a matter of perception. Which, by the way, is even more emphasized now that Russia is stepping up more for Syria.

Anytime a country requests allied support those actions could go against an aggressor, no matter where they are (tied to the conflict). Think WW2. We assisted Great Britain against the AXIS powers throughout Northern Africa and Europe. Whatever country Germany/Italy had troops were open targets. You don't get to have a safe zone to launch attacks from.

Same goes here. Isis stages attacks on Iraq from territory they control in Iraq and in Syria. US and Allied assistance is against ISIS/ISIL, not Syria. Happens all the time in international conflict. 

Even consider the 1990 Gulf war (Desert Storm). Kuwait asking for assistance was asking for the US (and coalition) to attack Iraq which Kuwait was unable to defend itself against. Same concept.

Of course, look at where Russia has sent support, they are placing forces in areas controlled by Syria, not ISIS/ISIL. It'll be interesting to see if they cooperate against ISIS/ISIL in Iraq or just Syria.

Thanks Jim.

The examples helped a lot.

Yes the Russian entry into Syria adds more complexities to an already complex situation.  I guess time will tell in regards to Russian action and ISIS

The West has no vision of finding a solution to the Syrian civil war.  Ok! you degrade and destroy ISIS, what's next? I see no post civil war vision for Syria. 

Terry, cannot argue with that. By pushing for the "Arab Spring," the current administration here in the US has implemented a policy that has the Middle East teetering between imploding and an Iranian State.

Just can't figure out if they are intentionally doing that or if they are blindly incompetent.

Jim, I think you are vastly overestimating the influence and role of the U.S. in the Arab Spring.  The Obama administration did not "push" the Arab Spring, it rose spontaneously in Tunisia and quickly spread throughout the region without any participation whatsoever from the U.S.  In fact, the U.S. has, since the end of WW II, strongly supported the autocratic governments in the Middle East (particularly Egypt and Saudi Arabia) over the opposition.  The U.S. tried to play catch-up after the protests spread, but it had little influence over the direction of them.  The U.S. can not "manage" the direction of Middle East politics.  We learned from the debacle of the Iraq was what happens when the U.S. tries to do so with such a heavy hand.

The main dynamic defining politics in the Middle East and North Africa is the "Islamic civil war" between Sunni and Shiite.  This was largely the product of the U.S. invasion of Iraq, which tore apart the country and ignited a domestic civil war with no effective central government.  ISIS is the product of this.  The core of ISIS is former military officers from Iraq's army, which the U.S. dismantled after the invasion.  This is why they are such an effective fighting force; they are led by professional military officers, even though they are a non-state actor.  Actually the only effective forces opposing ISIS are Iranian-backed militias and the Kurdish militias.  ISIS is fueled by support from such close U.S. allies as Saudi Arabia and Egypt.

The Middle East is not "imploding."  It is undergoing a rapid and violent social change fed by decades of corrupt, authoritarian governments, most of whom were supported by the major powers, including the U.S.  It is also the product of a regional rivalry between the sunni powers (Saudi Arabia and Egypt) and the shiite powers (Iran and Syria, although Syria is not a shiite country).  The Sunni fundamentalists are gaining the upper hand because of support from these two U.S. allies and because the destruction of Iraq blew apart the balance of power that existed between the Sunni and Shiite states.

Bruce, I was actually trying to avoid going down this path by acknowledging T.Stavridis point.

You are correct, (at least in the right general area) with your reference to the Shiite/Sunni conflict. But your analysis is rather misleading on the state of the Middle East before the 2009 change of US Administrations and, more importantly, changes in US Policy (in particular where support was given and where it was removed).

Abandoning allies and encouraging enemies has consequences.

Be more than happy to discuss it, but it should be on another thread.

Hi Bruce,

I find it hard to believe the CIA or associates had little to do with the Arab Spring considering who was the president at that point in time. Yes the Shiite/Sunni conflict is a critical aspect of the troubles in the Middle East but so is the culture of the US to spread democracy throughout the world whether it works or not. There is no one answer to the ME situation and yes I think it does deserve a new thread and I would gladly participate

According to the laws approved by the United Nations should have a significant role in maintaining the Syrian society and even could be the introduction of Syria under item VII