Background on the war on ISIS

ISIS has its roots in the Sunni/Baathist-dominated Iraqi army of Saddam Hussein(1) which was one of the largest armies in the world before the U.S.-led invasion of Iraq in 2003.(2) After the defeat of the Baathist regime, members of the Baathist party were banned from participating in the army or other government positions.(3) Dispossessed, marginalized, and subjugated under the U.S. occupation and subsequent Shi’ite-dominated Iraqi government of Iraqi Prime Minister Nouri al-Maliki, the former Sunni army personnel launched a protracted rebellion, with the insurgents taking on the name “alQaeda in Iraq” and later changing it to the “Islamic State of Iraq” (ISI).(4)

Meanwhile, the chaos in Syria, which began as protests against the Assad regime in 2011 and escalated to full-out civil war by 2014, presented ISI an opportunity to seize territory across the border.(5)

In 2014 ISI established its “capital” in the captured Syrian town of alRaqqah and changed the group’s name yet again to the “Islamic State of Iraq and Syria” (ISIS).(6) Soon thereafter, ISIS seized nearby Syrian oil wells and refineries, providing it with vast financial resources.(7) ISIS then turned its sights on Mosul, the second-largest city in Iraq, which fell to ISIS in 2014.(8) Following this, ISIS had access to hundreds of millions of dollars from banks, as well as tanks and armaments that it captured from the Iraqi army which fled Mosul with almost no fight.(9) With these vast financial and military resources, ISIS began to capture city after city in Iraq and Syria with ease.

Meanwhile, the Maliki government’s continued suppression of the Iraqi Sunnis enabled ISIS to sweep through Sunni areas in Iraq without much resistance because of resentment toward the ruling regime.(10) Experts believe the majority of top ISIS decision-makers are former members of Saddam Hussein’s army, intelligence, and security forces.(11) But during 2014, the ranks of ISIS swelled with as many as 10,000 foreign fighters from across the Arab world and Western Europe who were attracted to its fundamentalist ideology and string of military successes.(12)

The name Islamic State reflects the group’s avowed goal to establish an Islamic caliphate across the Eastern Mediterranean. In the lands it controls, ISIS has imposed repressive edicts and conditions on the inhabitants, similar to the Taliban’s former rule in Afghanistan. ISIS has beheaded thousands of Christians, Kurds and Shi’ites and destroyed Shiite shrines and archeological sites in areas under its dominion in Syria and Iraq.(13)

ISIS’s strategy of seizing and controlling territory in Iraq and Syria distinguishes it from the al-Qaeda network, which has focused on attacks on Western interests.(14) Due to ISIS’s divergent aims, tactics, and its ongoing conflict with the al-Nusra group (which was seen as the primary representative of al-Qaeda in Syria), in 2013 central al-Qaeda leadership disowned ISIS.(15) The United States thus found itself with three adversaries in the Syrian conflict: The Assad government, the al-Nusra (al-Qaeda) group, and ISIS.

The first U.S. airstrikes against ISIS were in response to a humanitarian catastrophe unfolding in northern Iraq in August 2014. After capturing nearby Mosul, ISIS forces attacked a number of towns in the Sinjar area populated by a Kurdish minority known as the Yazadis – killing thousands of men and capturing hundreds of women  and children as slaves.(16) When some 30,000 Yazadis took refuge on 4,800-foot Mount Sinjar, the ISIS forces cut off their means of egress from the mountain.(17)

At the time, Iraq had not yet given permission to the United States to use force in its territory against ISIS, but with the Yazadis’ water and food supplies dwindling, President Obama authorized airstrikes on the ISIS forces in order to save their lives, saying, “When we have the unique capacity to avert a massacre, the United States cannot turn a blind eye.”(18)

Meanwhile, under U.S. pressure, Iraqi Prime Minister Maliki stepped down a few days after the Yazadi operation, and was replaced by Haidar al-Abadi, who was seen as more moderate and more able to begin a reconciliation process with Sunnis.(19) At the request of alAbadi, the United States launched operation “Inherent Resolve,” consisting of widespread airstrikes on ISIS targets in Iraq in August 2014.(20) On September 19, 2014, France joined the United States in bombing ISIS in Iraq, and two weeks later the UK joined its two NATO allies in engaging in airstrikes in Iraq.(21)

Under international law, a State can use military force in another State’s territory in three situations:

(1) with the latter’s consent,

(2) with Security Council authorization, or

(3) when acting in self-defense against an armed attack.

Unlike Iraq, Syria has not consented to use of force against ISIS by foreign countries (other than Russia) in Syrian territory, and the U.S. State Department spokesman stated,  “We’re not looking for the approval of the Syrian regime.”(22) At the same time, with its permanent member veto, Russia blocked Security Council authorization to use force in Syria.(23) Russia has long been a strong ally of the Assad regime, which allows Russia to keep its only naval base outside the former Soviet Union at the Syrian Mediterranean port of Tartus.(24) Russia also seems motivated by the goal of frustrating U.S. policy in the Mideast.(25) The Russian Foreign Ministry has said that without a Security Council resolution, any strike against Syria would constitute an unlawful act of aggression.(26)

Nevertheless, without Syrian consent or Security Council authorization, on September 23, 2014, the United States began airstrikes on ISIS targets in Syria, supported by Bahrain, Jordan, Saudi Arabia, and the UAE.(27) Later, in February 2015 and April 2015, Jordan and Canada, respectively, joined the airstrikes against ISIS in Syria.(28)

U.S. aircraft participating in the strikes included F-15, F-16, F/A-18, F-22 fighter aircraft and B-1 bombers, as well as Tomahawk missiles deployed from US naval vessels in the Red Sea and North Arabian Gulf.(29)

From August 2014 through August 2015, the U.S.-led coalition had conducted more than 5,500 airstrikes on ISIS targets in Iraq and Syria, resulting in the deaths of over 15,000 ISIS fighters.(30) Despite American and British commanders’ claims of success,(31) ISIS’s forces reportedly grew to over 31,500 during the period of bombing, with a steady influx of recruits from around the world replacing ISIS casualties, suggesting that the war against ISIS is likely to be a lengthy one.(32) Then, on October 31, 2015, ISIS bombed a Russian jetliner over the Sinai desert, killing 224 passengers, and followed that up on November 13, 2015, by attacking a rock concert and sporting event in Paris, killing 130 and injuring 368 people.(33)

In response, on December 2, 2015, the U.N. Security Council unanimously adopted Resolution 2249, which determined that ISIS is “a global and unprecedented threat to international peace and security,” and called for “all necessary measures” to “eradicate the safe haven [ISIS] established” in Syria.(34)

Michael P. Scharf (How the War Against ISIS Changed International Law)

  1.  See Smith, supra note 5, at 1, 9.
  2. John M. Broder & Douglas Jehl, Iraqi Army: World’s 5th Largest but Full of Vital Weaknesses, LOS ANGELES TIMES (Aug. 13, 1990), available at http://articles.latimes.com/1990-08-13/news/mn-465_1_iraqi-army [https://perma.cc/E525-EHFE] (noting that the Iraqi army was the 5th largest in the world).2.
  3. See Smith, supra note 5, at 9.
  4. Smith, supra note 5, at 1
  5. 5.Id.
  6. 6.Id.
  7. Id. at 17.
  8. Martin Chulov, Isis insurgents seize control of Iraqi city of Mosul, THE GUARDIAN (June 10, 2014), available at [https://perma.cc/RD3V-N6JU].
  9. Smith, supra note 5, at 16-17.
  10. Id.at 24.
  11. Id. at 9.
  12. Id. at 20.
  13. Id. at 11.
  14. Smith, supra note 5, at 12.
  15. 15.Id. at 14.
  16.  Steve Hopkins, Full horror of the Yazidis who didn’t escape Mount Sinjar: UN confirms 5,000 men were executed and 7,000 women are now kept as sex slaves, DAILY MAIL (Oct. 14, 2014, 11:22 AM), http://www.dailymail.co.uk/news/article-2792552/full-horror-yazidisdidn-t-escape-mount-sinjar-confirms-5-000-men-executed-7-000-womenkept-sex-slaves.html
  17. Haroon Siddique, 20,000 Iraqis besieged by Isis escape from mountain after US air strikes, THE GUARDIAN (Aug. 10, 2014, 9:12AM),  [http://perma.cc/2WAR-D7M3].
  18. Helene Cooper & Michael D. Schear, Militants Seize of Mountain in Iraq is Over, Pentagon Says, N.Y. TIMES (Aug. 14, 2014),  [http://perma.cc/DP69-NY7D]; Helene Cooper, Mark Landler& Alissa J. Rubin, Obama Allows Limited Airstrikes on ISIS, N.Y. TIMES (Aug. 7, 2014),  [http://perma.cc/693E-LYVH].
  19.  Smith, supra note 5, at 24.
  20.  See Mills, supra note 4, at 6.
  21. See Smith, supra note 5, at 51-52.
  22. See generally Mills, supra note 4, at 55 (describing how the United States did warn the Assad regime about the imminent launch of airstrikes in September 2014 but did not request the regime’s permission).
  23.  Syria resolution authorizing military force fails in U.N. Security Council, CBS NEWS (Aug. 28 2013, 4:48 PM),  [http://perma.cc/3ZGZ-96HM].
  24. Smith, supra note 5, at 42.
  25. Smith, supra note 5, at 14.
  26. Somini Sengupta, A Host of Possible Objections to Expanded Airstrikes in Syria, N.Y. TIMES (Sept. 17, 2014),  [http://perma.cc/U5NT-ET95].
  27.  Julian E. Barnes & Dion Nissenbaum, U.S., Arab Allies Launch Airstrikes Against Islamic State Targets in Syria, WALL ST. J.,  [http://perma.cc/HF7MRGTJ].
  28. Mills, supra note 4, at 10-11
  29. Smith, supra note 5, at 53.
  30. Jim Michaels, 15,000 Killed, but ISIS Persists, USA TODAY (July 30, 2015, 5:55 PM), http://www.usatoday.com/story/news/world/2015/07/29/air-campaignkills-15000-isis-militants-pentagon-iraq-syria/30750327/ [http://perma.cc/6P6X-WR9L].
  31. Id.
  32. Id.
  33. See Armin Rosen, ISIS pulled off 2 of its most alarming attacks in the space of less than a month, FIN. TIMES (Nov. 18, 2015, 8:01 AM), http://www.businessinsider.com/isis-paris-plane-attacks-2015-11 [https://perma.cc/9M3M-3P9A] (last visited Dec. 19, 2015); Adam Chandler et al., The Paris Attacks: The Latest, THE ATLANTIC (Nov. 22, 2015, 4:58 PM), http://www.theatlantic.com/international/archive/2015/11/parisattacks/415953/ [https://perma.cc/NM9A-F695] (last visited Feb. 19, 2016).
  34. See S.C. Res. 2249 (Nov. 20, 2015), available at http://www.un.org/press/en/2015/sc12132.doc.htm [https://perma.cc/4GZM-WEYC]

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