When is a war not a war? Does it matter, when a bomb is dropped or a missile is launched, whether it is called “counter-terrorism”, or “armed conflict”, or “hostilities”?
In fact, it is — especially for a president who has said he wants to keep U.S. military action within the bounds of U.S. and international law, and for administration officials who have spent countless hours in recent weeks analyzing the language used to describe operations in Syria.
It matters to the American people, who have said in polls that they support airstrikes against Islamic State militants in Syria and Iraq, but are not very interested in another ground war in the Middle East. It also matters to Congress, which has not authorized war since World War II, but can decide to approve this specific “use of military force.”
For civilians on the ground, the likelihood of being hit by a US airstrike may be different under President Obama’s narrow guidelines for counterterrorism without war than under broader international rules governing “armed conflict.” And European allies, many of whom have joined US air operations in Iraq, remain uncertain about the international legal justification for military action in Syria.
The administration’s definition of what it does has continued to evolve in recent weeks. As government lawyers strive to provide the president with maximum flexibility under domestic and international law, the results have at times seemed both inconsistent and confusing.
When Obama announced on September 10 that he had authorized offensive U.S. military action, he underscored the potential threat the Islamic State posed to the American homeland and said its goal was to “degrade and ultimately destroy” the group. Neither the president nor the White House informants who provided additional context for his remarks mentioned a request by the Iraqi government to carry out airstrikes in Syria.
Yet that demand is now cited as a key international legal basis for the strikes that began on September 22. It is not known when it was originally made. On September 23, US Ambassador to the United Nations Samantha Power referred to an Iraqi letter sent to the UN Secretary General three days earlier, citing a call for the United States to they are “leading international efforts to strike at ISIL sites and military strongholds in Syria in order to end the continued attacks on Iraq.
Power cited the UN Charter’s recognition of the legitimacy of the use of force in individual and collective self-defense. She did not mention the goal of destroying the Islamic State, also known as ISIL and ISIS.
The day after Obama’s national address, CNN asked Secretary of State John F. Kerry if the United States was at war with the Islamic State. It was “bad terminology,” Kerry said. “What we are doing is engaging in a very important counter-terrorism operation.”
Three days later, on CBS’ “Face the Nation,” Kerry called the semantic debates “a waste of time.” But, he said, “If people need a place to land. . . yes, we are at war with ISIL.
Obama, who has said in the past that the United States is ‘at war with al-Qaeda’, seemed to disagree when asked about the war on Islamic State on ’60 Minutes’. from CBS on September 28.
“It’s not America against ISIL,” he said. “It is America that leads the international community to help a country [Iraq] who we have a security partnership with, to make sure they are able to take care of their business.
When reporters asked Pentagon press secretary Rear Admiral John F. Kirby on Tuesday if the US military was “at war with ISIL,” his response was succinct. “Yes, yes,” Kirby said.
Administration lawyers, seeking outside advice, have discussed operations in Iraq and Syria with a number of former officials. “We encouraged them. . . to publicly clarify their legal theories under national and international law,” said a participant in some of those closed-door discussions who would discuss a private meeting only on condition of anonymity.
“Armed conflict” versus “war”
International law, which uses the words “armed conflict” instead of “war”, applies whether states fight among themselves or against “non-state actors”, such as terrorist groups, although terrorists, for definition, don’t follow the rules.
The law recognizes the possibility of civilian casualties. But governments cannot intentionally target civilians, and any action that endangers civilians must be proportionate to the importance of the military objective.
In guidelines for lethal action against terrorism he outlined last year, Obama imposed the narrower standard of “virtual certainty” that there would be no civilian casualties. But “that was then and this is now,” said John B. Bellinger III, legal counsel to the George W. Bush administration’s State Department. “I mean that seriously. When they came up with all these rules a year ago, they thought the terrorist threat was going in one direction. Now, that seems like a completely different direction.
Amid reports of civilian casualties in US strikes in Syria — which the Pentagon said it had not confirmed — administration officials said the “virtual certainty” standard only applied “outside areas of active hostilities,” based on “among other things, the scope and intensity of the fighting,” said a senior administration official who spoke on condition of anonymity about the legal findings.
“We consider Iraq and Syria to be ‘areas of active hostilities,’ based on what we are seeing on the ground right now,” the official said. “It is not the same as determining that an armed conflict is taking place in the country in question.” Nonetheless, the official said, the administration chose to abide by the laws applicable to armed conflict with respect to possible civilian casualties.
But “in international law, there is only one concept – armed conflict, or not,” said a former senior administration official who spoke on condition of anonymity to candidly describe the dilemma. administration. The United States, the former official said, now recognizes something in between – a new category of “hot battlefield or zone of active hostilities”.
The administration also said its actions were a legal response to the threat because Syria “is unwilling or unable” to fight Islamic State itself. Naz Modirzadeh, founding director of Harvard Law School’s program on international law and armed conflict, called the concept an example of “people’s international law.”
Law established, she wrote Thursday on the lawfare blogdoes not include such a distinction for attacks on sovereignty.
The role of Congress
Under the Vietnam-era War Powers Resolution, the president must notify Congress whenever he sends U.S. forces into “hostilities” and must withdraw them after 60 days unless lawmakers agree.
Obama observed the requirement when launching U.S. military operations in Libya in the spring of 2011, but then adopted what critics called an elastic definition by deciding that the situation did not constitute “hostilities” endangering military personnel. American, and was therefore not subject to the deadline.
In Iraq and Syria, Obama sent the notifications but said he didn’t need congressional approval because US actions are justified separately by the president’s constitutional authority as commander-in-chief and the 2001 Authorization to Use Military Force (AUMF) against al-Qaeda. and its associates.
Last year, Obama proposed curtailing, and eventually repealing, the al-Qaeda measure as obsolete at a time when that organization’s core leadership had been “decimated” and new independent terrorist threats were emerging. Although he pledged to consult Congress on new authorizations for new threats, and some laws were proposed, nothing had happened by the time the Islamic State took control of large territories in Syria. and in Iraq.
The Islamic State and al-Qaeda have mutually and publicly rejected any association with each other. But the administration said the once-rejected AUMF was valid because the Islamic State is rooted in an al-Qaeda-linked group that originated in Iraq a decade ago.