How the War Against ISIS Changed International Law

In an effort to destroy ISIS, beginning in August 2014, the United States, assisted by a handful of other Western and Arab countries, carried out thousands of bombing sorties and cruise missile attacks against ISIS targets in Iraq and Syria. Iraq had consented to the airstrikes in its territory, but Syria had not, and Russia blocked the UN Security Council from authorizing force against ISIS in Syria.

The United States invoked several different legal arguments to justify its airstrikes, including the right of humanitarian intervention, the right to use force in a failed state, and the right of hot pursuit, before finally settling on self-defense. Use of force in self-defense has traditionally not been viewed as lawful against non-state actors in a third state unless they are under the effective control of that state, but the United States argued that in the aftermath of the 9/11 attacks by al Qaeda, such force can be justified where a government is unable or unwilling to suppress the threat posed by non-state actors operating within its borders. This view was not, however, initially accepted by Russia, China, or even the United Kingdom. But that changed in the aftermath of ISIS attacks against a Russian jetliner and a Paris stadium and concert hall in 2015, leading to the unanimous adoption of a UN Security Council resolution calling on States to use all necessary measures to fight ISIS in Syria without offering a legal basis for military action. This article examines the evolution of the right to use force in self-defense against non-state actors and makes the case that events in 2015 triggered a “Grotian Moment”: a fundamental paradigm shift that will have broad implications for international law.

* Dean of the Law School, Joseph C. Hostetler-BakerHostetler Professor of Law, and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law; former Attorney Adviser for United Nations Affairs, U.S. Department of State. The author wishes to express special thanks to Kevin Vogel, CWRU Law School Class of 2017, for providing research assistance on part II of the article.

Case Western Reserve Journal of International Law 48 (2016) How the War Against ISIS Changed International Law

How the War Against ISIS Changed International Law

Michael P. Scharf Case Western Reserve University – School of Law, michael.scharf@case.edu

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Repository Citation Scharf, Michael P., “How the War Against ISIS Changed International Law” (2016).Faculty Publications.Paper 1638. http://scholarlycommons.law.case.edu/faculty_publications/1638

Case Western Reserve Journal of International Law 48 (2016)

How the War Against ISIS Changed International Law

Michael P. Scharf*

Contents

I. Introduction

II. Background on the War on ISIS

III. The Concept of Accelerated Formation of Customary International Law

  1. Nuremberg as a Grotian Moment
  2. Other Examples of Grotian Moments since World War II
  3. The Changing Law of Self-Defense against Non-State Actors
  4. Use of Force against Non-State Actors Prior to 9/11
  5. State Attribution
  6. Anticipatory Self-Defense under Customary International Law
  7. Did the 9/11 Attacks Alter the Paradigm?
  8. A Different Kind of Threat
  9. The International Response to 9/11
  10. The Bush Doctrine
  11. A Grotian Moment that was Still One Case Away
  12. 2014: The Initial U.S. justifications for bombing ISIS
  13. Humanitarian Intervention
  14. Failed State
  15. Hot Pursuit
  16. 2015: The Grotian Moment comes to Fruition
  17. Conclusion

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