JURIST Guest Columnist Jordan Paust of the University of Houston Law Center discusses the constitutionality and international legality of the war against ISIS in Iraq and Syria …
President Obama and Secretary Kerry were reluctant to use the word “war” or the phrase “armed conflict” with respect to what they admit is our “fight” against ISIS that is ongoing in Iraq, has migrated to Syria, and is predicted to last a number of years. Yet, common sense allowed most to realize that the protracted firing of missiles and dropping of bombs by US military personnel on ISIS military equipment and fighters in Iraq and later in Syria has been significant war-time conduct. Under international law and US constitutional law, it is also war and armed conflict.
Under international law, it is the fact of war that compels the legal conclusion that war exists and, importantly, that the laws of war apply. At this moment, the US is engaged in an international armed conflict in Iraq and Syria to which all of the customary laws of war apply as well as several treaty-based rules of war. Under international law, the US is also engaged in measures of collective self-defense with the consent of Iraq against ongoing ISIS armed attacks on the Iraqi government that also happen to be partly planned and emanate from Syria. The Russians are wrong that these measures of collective self-defense are not lawful under the UN Charter and that the US must have authorization from the UN Security Council. Article 51 of the UN Charter expressly recognizes the inherent right of member states to engage in responsive measures of self and collective self-defense if an armed attack occurs. Quite clearly, ISIS is engaged in armed attacks against Iraq and, because the attacks are partly planned and partly emanate from Syria, selective use of force against ISIS in Syria as a matter of collective self-defense is also permissible and the US did not need special consent from the Assad government and is not at war with his regime.
Further, if the US was not participating in what is known as an international armed conflict in Iraq and Syria, US military personnel would be placed in harms way. It is only during such an armed conflict that US military personnel would have pow status, combatant status, and combatant immunity for lawful acts of war. Claiming that the US is not participating in an international armed conflict would be against common sense, contrary to international law, and remarkably inconsistent with the national security and foreign policy interests of the US.
Under the US Constitution, US targetings of ISIS in Iraq and Syria are measures of war or armed conflict as well as measures of collective self-defense that are lawful under international law. The president’s duty under Article II, Section 3 of the Constitution is to faithfully execute the “Laws,” which throughout US history have decidedly included international law. It is this constitutionally-based duty that actually provides a competence of the president to use military force that is authorized by international law, like measures of collective self-defense. President Lincoln, President Truman, and every subsequent president has affirmed that they have a constitutionally-based competence to go to war in accordance with authority that pertains under international law, like the Security Council authorization to use military force in Korea that is still operative, the Security Council’s authorization regarding Libya, and NATO’s authorizations to use military force in Kosovo and Libya.
This constitutionally-based authority cannot be obviated by Congress. In the 2001 Authorization for Use of Military Force, Congress admitted that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” This is correct with respect to action authorized by international law.
Moreover, as expressly recognized in the 1973 War Powers Resolution nothing precludes the president from using authorizations to use military force that are provided under existing treaties of the US, which necessarily include the UN Charter and the North Atlantic Treaty. However, as recognized by the Supreme Court, Congress could limit the war in terms of time, place, and methods as long as the limitations do not go so far as to violate the separation of powers. Whether Congress will set limits to this war is presently unknown.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Professor Paust is one of the most cited law professors in the US and has published over 190 articles, book chapters, papers and essays addressing treaty law, customary international law and the incorporation of international law into US domestic law.
Suggested Citation: Jordan Paust, Of Course It’s a War, and It Is Lawful, JURIST – Academic Commentary, September 20, 2014, http://jurist.org/academic/2014/09/jordan-paust-war-lawful.
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