On June 26, Seifiddine Rezgui wandered onto the Sousse beach resort in Tunisia and opened fire, killing 38, including 30 vacationing British citizens. The Islamic State (ISIS) claimed responsibility for the attack after information was revealed that Rezgui attended an ISIS training camp in Libya and was part of an ISIS sleeper cell in Tunisia. The connection to ISIS has the British government contemplating increased action against the terrorist group in Syria. Prime Minister David Cameron has suggested that any attacks against ISIS in Syria would be legal internationally under the theory of individual self-defense, citing the threat that ISIS poses to Britain. The focus on individual self-defense as a justification for military action in Syria under domestic British law and international law contrasts with the American approach, which relies on collective self-defense in international law and an unrelated Congressional authorization in domestic law.
Currently, the British military is actively engaged in the fight against ISIS in Iraq, sending troops to join the counter IED trainings and engaging in airstrikes against ISIS targets. The possibility of extending British military action over the border into Syria has interesting domestic and international legal implications, mirroring the debate over American military action in Syria. The dualist debate over military action in any third country inevitably includes both domestic and international legal authorization. Like in the United States, the legality of airstrikes in Syria – both domestically and internationally – is questionable.
In the United States, the Obama administration has articulated a coherent, if questionable, legal theory for its action in Syria. Domestically, the U.S. Congress has not given the administration express authorization for military action in Syria. Rather, the administration has relied on a strained interpretation of the 2001 and 2002 Authorization of the Use of Military Force (AUMF), which authorized the Bush administration to target Al Qaeda and its associated forces. The Obama administration has lumped ISIS in as an associated force, despite clear indications to the contrary. The administration has admitted the inadequacy of the domestic legal authorization by proposing a new, ISIS-specific AUMF, which recently fell victim to Congressional inaction. Despite the lack of domestic legal authorization, American airstrikes continue against ISIS in Syria.
Internationally, the justification for the use of force in Syria is similarly troubling. Article 2(4) of the United Nations Charter prohibits the use of force against the territorial integrity of states. The only exceptions to this blanket prohibition are through Security Council Authorization or in self-defense, pursuant to Article 51. The Chinese and Russian positions on the issue preclude the possibility of a Security Council resolution. Consequently, the United States has relied on a theory of collective self-defense: the United States is coming to the defense of its Iraqi ally by striking ISIS positions in Syria. This theory has been complicated by the location of the airstrikes in a third country. The United States has said that it would not seek the permission of the Syrian regime to conduct strikes and the Syrian regime has stated that any strikes not taken in conjunction with the Syrian government would be considered aggression and a breach of Syrian sovereignty. The complications and legal uncertainties have been generally ignored due to the universal condemnation of the target of the strikes. Certainly, there would be a more controversial debate if the United States began striking the Assad regime.
In the British case, the case for airstrikes against ISIS in Syria is actually simpler. The Cameron government has stated that it would wait for parliamentary authorization for military action. In 2013, however, Parliament refused to authorize military action against ISIS in Syria, putting into doubt the possibility of future parliamentary authorization. Perhaps in anticipation, Michael Fallon, the British Defense Secretary, said that military action did not require parliamentary authorization if it was in response to a direct attack against Britain. Thus, domestically, the Cameron government would have legal justification to expand airstrikes against ISIS through parliamentary approval or in self-defense.
The idea of that strikes against ISIS in Syria could be in individual self-defense – as opposed to collective self-defense – has been highlighted by the attack in Tunisia. A spokesperson for Cameron recently stated that the attack in Tunisia “underlined the scale of the threat posed to British people by ISIS.” She also noted that any airstrikes against ISIS in Syria would be legal under international law due to the threat that ISIS poses to British citizens. In other words, the Cameron government believes that the threat to Britain posed by ISIS is sufficient to trigger the right to individual self-defense under Article 51 of the UN Charter. Secondly, as stated by Defense Secretary Fallon, the government does not need parliamentary approval for military action if it is taken in self-defense. The clear inference, therefore, is that the Cameron government believes that it already has domestic and international legal authorization to strike ISIS in Syria even though the Prime Minister has stated that he would wait for Parliament.
If the Cameron government decides to act without Parliamentary authorization, it would be engaging ISIS in Syria through a different domestic and international legal theory than is used by the United States. Although both countries are facing the same legal obstacles, the Obama administration and the Cameron government have different legal theories to authorize action. Internationally, the United States has justified its actions through a theory of collective self-defense, Britain is relying on individual self-defense due to the threat of ISIS to British interests. Domestically, the United States has stretched the limits of a seemingly limitless authorization for the use of force against Al Qaeda to justify military action without Congressional authorization. Conversely, if the Cameron government approves airstrikes without Parliamentary authorization, it would be doing so under a theory of self-defense, brought about by the Tunisian attack.
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