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I have repeatedly expressed concern in the past about the Administration’s lack of clarity about the international law basis for edgy counter-terrorism operations, from drones strikes to the Bin Ladin raid. As I wrote with respect to the Bin Laden raid, “When a state uses force in or against another state, it should explain its reasons.” I believe this is especially true for the United States, which tries hard to base its actions on international law and whose actions set important precedents for other countries.
In the current situation, it will be especially important for the Administration to explain its international law rationale for use of force in Syria, because it is trying to build a coalition of countries to participate in the action. Coalition partners, including the UK, Germany, and Australia, will be required for domestic legal and political reasons to base their use of force on international law. These countries are already privately asking the Administration to explain its legal position.
Although I am well aware of the criticisms of Bush Administration’s counter-terrorism policies, in the Administration’s second term we tried very hard to explain the international legal basis for U.S. actions and to engage in dialogue with other countries about them. Obama Administration officials, in contrast, have been reticent about the international law basis for many U.S. actions, which is especially surprising given the Administration’s touted commitment to compliance with international law. Even the numerous speeches by Administration officials on the use of drones have all been delivered to audiences inside the United States and have been sparse in addressing international law.
One reason for the current silence with respect to the possible use of force against ISIL in Syria (and previously with respect to the possible use of force against the Assad regime) is that there is not a clear legal basis, given that the Assad regime has (apparently) not consented to the use of force in its territory. This will leave the Administration to cobble together -- for either public consumption or its own internal legal analysis -- a variety of international legal rationales, which (as Ashley explained) may include that ISIL is part of Al Qaida and therefore part of the U.S. armed conflict with al Qaida, or perhaps a co-belligerency theory, or perhaps collective self-defense. In my own view, although there is not an obvious international law basis, the Administration has legally available options to defend its actions. Ultimately, the Administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual “factors” that “justify” the use of force, as the Clinton Administration did for the Kosovo war. But it would be much preferable for the Administration to provide legal reasons.