Introduction to How the War on ISIS changed IL

In 2014, a militant group calling itself the Islamic State (ISIS)1 rapidly took over more than thirty percent of the territory of Syria and Iraq. In the process, it captured billions of dollars worth of oil fields and refineries, bank assets and antiquities, tanks and armaments, and became one of the greatest threats to peace and security in the Middle East.3 In an effort to “degrade and defeat” ISIS, beginning in August 2014 the United States, assisted by a handful of other Western and Arab countries, launched thousands of bombing sorties and cruise missile attacks against ISIS targets in Iraq and Syria.

While the Iraqi government has consented to foreign military action against ISIS within Iraq, the Syrian government did not. Rather, Syria protested that the air strikes in Syrian territory were an unjustifiable violation of international law. The United States initially claimed the airstrikes against ISIS were justified variously by a right of humanitarian intervention, a right to use force in the territory of failed states, and a right of hot pursuit, before settling on the argument that the airstrikes in Syria were lawful acts of collective self-defense on behalf of the government of Iraq. 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 has argued that since the 9/11 attacks such force can be justified where a government is unable or unwilling to suppress the threat posed by the non-state actors operating within its borders. This view was not, however, accepted by Russia, China, or even the United Kingdom, which initially refused to join the United States in bombing ISIS targets in Syria.

Article 51 of the UN Charter provides for protection of a State’s “inherent right” of self-defense. Reference to an “inherent right” means the question is not one of treaty interpretation but rather discerning whether the evolving customary international law principles governing self-defense support the U.S. position. Usually, customary international law changes slowly over many decades. (1) But sometimes, world events are such that customary international law develops quite rapidly. (2) Some scholars call these transformative events and paradigm shifts that accelerate the formation of customary international law “International Constitutional Moments,” (3) likening them to the rapid, radical transformation in American Constitutional Law that accompanied the New Deal. But because these changes occur largely outside a constitution or treaty framework, elsewhere I have made the case that a more apt term for this phenomenon is “Grotian Moment,” named for Hugo Grotius, the 15th Century Dutch scholar and diplomat whose masterpiece De Jure Belli ac Pacis helped marshal in the modern system of international law.(4) This article examines whether the use of force against ISIS in Syria is one of these so-called Grotian Moments, marking a rapid change in customary international law.

The article begins with background about the nature of the ISIS threat and the U.S. decision to launch airstrikes against ISIS in Syria  in August 2014. Next, it discusses the principles and process of customary international law formation and the phenomenon of accelerated formation of customary international law. Finally, it explores the evolution of the legal rationales to justify use of force against ISIS in Syria that were espoused by the United States, and the international reaction to these arguments, in order to determine whether or how the airstrikes and the international response have altered international law.

Arie09
  1. (explaining that historically, crystallization of new rules of customary international law was viewed as a protracted process that took decades, if not centuries, to complete. French jurisprudence generally required the passage of at least forty years for the emergence of an international custom, while German doctrine generally required thirty years)Vincy Fon & Franscesco Parisi, Customary Law and Articulation Theories: An Economic Analysis 3, GEO. MASON UNIV. SCH. L., L. & Econ. Working Paper Series No. 2-24 (2000), http://www.law.gmu.edu/assets/files/publications/working_papers/02-24.pdf
  2.  North Sea Continental Shelf (Ger. v. Den., Ger. v. Neth.), Merits, 1969 I.C.J. 3, ¶¶ 71, 73–74 (Feb. 20) (explaining that “Although the passage of only a short period of time is not necessarily . . . a bar to the formation of a new rule of customary international law . . . an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”)
  3. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. drafting of the United Nations (U.N.) Charter was a “constitutional moment” in the history of international law); Leila Nadya Sadat, Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1206–07 (2007) (Sadat has similarly described Nuremberg as a “constitutional moment for law.”). REV. 429, 463 (2003) (Martinez, for example, has written that the drafting of the United Nations (U.N.) Charter was a “constitutional moment” in the history of international law); Leila Nadya Sadat, Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1206–07 (2007) (Sadat has similarly described Nuremberg as a “constitutional moment for law.”).
  4. See generally MICHAEL P. SCHARF, CUSTOMARY INTERNATIONAL LAW INTIMES OF FUNDAMENTAL CHANGE: RECOGNIZING GROTIAN MOMENTS (2014) [hereinafter Grotian Moments](noting that the term “Grotian Moment” was first coined by Princeton Professor Richard Falk). See INTERNATIONAL LAW AND WORLD ORDER 1265–86 (Burns H. Weston et considered to have laid the intellectual architecture for the Peace of Westphalia, which launched the basic rules of modern international law); HEDLEY BULL ET AL., HUGO GROTIUS AND INTERNATIONAL RELATIONS 1, 9 (1992) (explaining that while the results of Westphalia may have been simplified by the lens of history, and Grotius’ role may have been exaggerated, Westphalia has unquestionably emerged as a symbolic marker and Grotius as an emblematic figure of changing historical thought.”Grotian Moment” is thus an apt label for transformational events in customary international law). eds., Thomson/West 4th ed. 2006) (Grotius (1583–1645) is widely considered to have laid the intellectual architecture for the Peace of Westphalia, which launched the basic rules of modern international law); HEDLEY BULL ET AL., HUGO GROTIUS AND INTERNATIONAL RELATIONS 1, 9 (1992) (explaining that while the results of Westphalia may have been simplified by the lens of history, and Grotius’ role may have been exaggerated, Westphalia has unquestionably emerged as a symbolic marker and Grotius as an emblematic figure of changing historical thought.”Grotian Moment” is thus an apt label for transformational events in customary international law).

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

http://scholarlycommons.law.case.edu/faculty_publications

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