Last week’s speech by State Department Legal Adviser Brian Egan laying out the legal and policy rationales behind the US’s war against ISIL was largely overlooked in the mainstream press (Marty Lederman’s short synopsis here). This makes some sense considering that Egan himself claimed the speech contained almost no news. Instead, the American Society of International Law’s Annual Meeting was a symbolic platform to put all of the Obama administration’s arguments for US military interventions into a cohesive statement. The individual components of his speech may not have been news on their own, but it’s not accurate to claim that the Legal Adviser did not say anything new. Egan’s speech connected many of the dots of legal and policy arguments for the war against ISIL that his executive branch colleagues have offered over the last year and a half. Some have gone so far as to argue that the doctrine articulated by Egan has “normalized and legitimated” Bush era preemptive use of force doctrines in more palatable form. A close review of this speech reveals a far-reaching articulation of US doctrine toward international law and the use of force worldwide. The outworking of this doctrine could have significant impact on the collective security system established in the aftermath of World War II as well as undoing the basic compact that encouraged restraint on the use of force by states since that time.

Egan’s speech should be welcomed for showing the US’s commitment to working within the limits of international law. The speech was peppered with references to international law and its intrinsic value to the United States:

International law matters a great deal in how we as a country approach counterterrorism operations.

We comply with the law of armed conflict because it is the international legal obligation of the United States; because we have a proud history of standing for the rule of law; because it is essential to building and maintaining our international coalition; because it enhances rather than compromises our military effectiveness; and because it is the right thing to do.

Despite international law reassurance, the substance of the doctrine articulated by the Legal Adviser poses the dual challenges of unilateralism and selectively in the US’s approach to the law of armed conflict (LOAC). It bears reminding that the invocation of law does not necessarily affirm legality, and there is a grave risk of mistaking invocation for compliance. If the forceful doctrine of aggressive self-defense fleshed out last week in Washington affirms the entrenchment of consolidated US use of force practice, an important conversation is required about the future of collective military force and the international order that has kept the peace between great powers for more than 70 years — an order the US has played a key role in building and leading. 

Let’s start with the right to self-defense that frames the logic behind the US’s operations against ISIL in Iraq and Syria. As Egan explained:

[a]lthough the United States maintains an individual right of self defense against ISIL, it has not relied solely on that international law basis in taking action against ISIL. In Iraq, U.S. operations against ISIL are conducted with Iraqi consent and in furtherance of Iraq’s own armed conflict against the group. And in Syria, U.S. operations against ISIL are conducted in individual self-defense and the collective self-defense of Iraq and other States.

While his speech cited the inherent right to self-defense as outlined in the UN Charter (invoking Article 51 as well as the invitation or consent of states to excise force on their territory), Egan didn’t once mention how the role the UN Security Council and the principles of UN-based collective security play in this new doctrine. The United Nations Charter was invoked only briefly and there was no acknowledgement that self-defense sits in a broader eco-system of force restraint with an overarching maxim of saving “succeeding generations from the scourge of war.” For many states, scholars and policy makers self-defense ought rightly to remain a residual response or a position of last resort (accepting an immediate right of self-defense in response to immediate armed attack), given the well-proven capacity for the doctrine to be manipulated and interpreted to a state’s own selfish goals.

What does it practically mean under this consolidated doctrine that the US deems these expanded practices of military force can be used without Security Council authorization as long as the US is invited by a nation to assist with its self-defense, or as discussed below, if it finds an un-consenting country such as Syria “unwilling or unable” to act against a threat to the US or its allies? Minimally, I suggest that the implementation of this doctrine requires some sophisticated conversation to address what threshold of meaningful consent makes such an invitation valid. I specifically recall Iraq’s 1990 argument that its invasion of Kuwait was ‘by invitation’ as well as the USSR’s argument in 1956 that it was invited to invade Hungary. Bogus invitations, coerced invitations, invitations by governments that have little effective control over their territories and their populations ought to incite concern for the international community. International lawyers ought to have some profound concern when a collective security system is being undercut by proposals that re-order invitations to exercise force as substitutes for collective deliberation on the legality of the use of force.

Again, per Egan:

In some cases, international law does not require a State to obtain the consent of the State on whose territory force will be used. In particular, there will be cases in which there is a reasonable and objective basis for concluding that the territorial State is unwilling or unable to effectively confront the non-State actor in its territory so that it is necessary to act in self-defense against the non-State actor in that State’s territory without the territorial State’s consent. For example, in the case of ISIL in Syria, as indicated in our Article 51 letter, we could act in self-defense without Syrian consent because we had determined that the Syrian regime was unable or unwilling to prevent the use of its territory for armed attacks by ISIL.

The US has long sought to operate within the constraints of the Security Council an entity that it helped create and legitimate. Even in the case of the 2003 invasion of Iraq, the administration of President George W. Bush went through the (unsuccessful) motions of attempting to receive security council authorization for that disastrous war. The general practice of states to seek Security Council approval with all the limitations, compromises and deadlocks this creates has enabled a much starker assessment of those states that conform to the dictates of international law and those that do not. This was a lesson the Bush administration learnt to its peril when it failed to get Security Council approval for its 2003 use of force in Iraq. In essentially dismissing the relevance of the Security Council to the use of force against ISIL not only does the United States undermine the relevance, authority and efficacy of the Security Council, it gives direct license to other states to do the same. What are the implications when a P5 member of the Security Council validates a generically deployable self-interested authorization to use force on the territory of another state with neither its consent nor that of the Security Council?

Further devaluing the traditional and limited doctrine of self defense is the US’s introduction of “unwilling or unable” terminology into the legal fray when justifying action on a nation’s territory without its permission. As Marty pointed out, Egan seemed to say that the unwilling or unable test falls under the notion of necessity to deal with a direct threat. But the adoption of this phrase has more than a hint of “legal lego-land” to it. The random invocation of a standard used in international criminal law and neutrality law does not meet a threshold test for rigor or legitimacy in the law of armed conflict. As Kevin Heller has noted reflecting on the academic advocacy on this test in LOAC that:

it completely fails to establish its thesis that “[i]nternational law traditionally requires the victim state to assess whether the territorial state is ‘unwilling or unable’ to suppress the threat itself.”

If the United States is intent on providing a new blueprint for the aggressive use of self-defense based on this nebulous standard there is little sensibility to the likelihood of abuse by other states. The short-term gain for the US in having a legal mantra for use of force in its fight against ISIL in Syria, shows long-term naivety about the potential for expansionist states to use the doctrine to their own advantage. When you order from the à la carte menu, invariably others think it’s a good idea. This may be unproblematic in the restaurant world in the use of force area the consequences could be disastrous.