Stopping a Seemingly Unstoppable Force: The War between ISIS and the Syrian Government

By: Kathryn Bristor

ISIS.  One word, two syllables that stirs fear in the hearts of people universally and unites nations in the fight against this group that stops at nothing in its efforts to terrorize, overthrow, and kill.  The origins of ISIS arose under the notorious Iraqi terrorist group, al Qaeda in conjunction with an army that had previously been under the reign of Saddam Hussein.[1]  As leadership changed hands, resentment towards governmental control continued to build, causing the movement to expand beyond the borders of this war-torn country.  With the commencement of a civil war next door, Syria became the prime candidate for the group to gain more followers who were adamantly fighting against the government forces at work there.[2]  As the group continued gaining strength through its increasing numbers and territory, the Islamic State in Iraq and Syria, better known as ISIS, was born.[3]

While the influx of social media has brought with it a variety of benefits that did not exist prior to its creation, it has also provided a global platform for the ISIS movement and its propaganda efforts.  CIA reports reflect that ISIS has recruited over 31,000 fighters from 81 different countries.[4]  In addition to its increasing number of followers, U.S. intelligence officials have reported that ISIS makes $3 million every day through various revenue streams.[5]  This influx of resources was apparent in ISIS’ 2015 territorial control of one-third of both Syrian and Iraqi land.[6]  With more than “300,000 dead, two-thirds of the Syrian people in need of humanitarian aid, and some 11 million people uprooted”, the effects of ISIS are palpable.[7]  As ISIS continues recruiting people from all over the world, the question of how to stop a force that has become increasingly unstoppable has the potential to alter international law.

Under current international law, all UN member States are forbidden from the threat or use of force against other member States, unless one of three exceptions is present.[8]  A State has the ability to use military force in another State’s territory if (1) an inherent right of individual or collective self-defense exists, (2) a State requests this type of foreign intervention, thereby consenting to the use of force, or (3) the Security Council authorizes the force.[9]

According to Article 51 of the UN Charter, member States have the “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”[10]  In such contexts, the self-defense must be necessary, proportional, and immediate to be considered appropriate.[11]  Additionally, in order to legally exercise the right to collective self-defense, the State must declare that it is the victim of an armed attack and request aid from other States.[12]  Aside from France, which employed individual self-defense after the Paris attacks, all western States have relied on collective self-defense in their efforts to fight ISIS.[13]  Member States are unfortunately limited in their use of force under this exception since the Syrian government must request assistance, which has proven to be extremely rare.

While not explicitly stated in the UN Charter, international law recognizes a governmental right to request foreign assistance in suppressing rebels who are defying the government.[14]  This concept, known as the invitation doctrine, allows a member State to “legally send troops to another State upon invitation for certain limited operations.”[15]  Although the Iraqi government has repeatedly asked for help in its fight against ISIS, the Syrian government has taken the opposite approach.  Syria protested the ISIS-targeted airstrikes on their country, even prohibiting the entry of humanitarian aid without governmental consent.[16]  The Syrian government did, however, consent to Russian intervention, asking them to provide military support in fighting the Islamic State.[17]  With the exception of Russia, the Syrian government has not consented to the use of force, thus prohibiting member States from taking action in Syria under this exception.

Article 42 of the UN Charter articulates the final exception – the Security Council authorization of military force.  This section allows authorization of force “as may be necessary to maintain or restore international peace and security.”[18]  To date, the Security Council has passed two resolutions in response to the violence that ISIS has instigated.[19]  Resolution 2178 addresses terrorism in generalized terms, calling it a serious threat to society, while Resolution 2249 calls out the Islamic State in Syria, urging States to “take all necessary measures, in compliance with international law” to destroy this group.[20]  While both Resolutions are a positive development, neither grants explicit authorization for States to simply take all necessary measures, making them void if the Syrian government does not request assistance.[21]

Although none of the aforementioned exceptions are fully satisfied in the context of the Syrian conflict, an emerging doctrine has people wondering whether it is possible to intervene against this group that promises to leave the Middle East in shambles.  The doctrine of humanitarian intervention suggests that intervention is appropriate if it “is crucial in order to protect individual rights and prevent individual suffering.”[22]  While clearly in opposition to the principle of State sovereignty, humanitarian intervention elevates the value of human life over legal principle.  This phenomenon has recently been employed to alleviate conflict in several situations such as India’s intervention in Pakistan and Tanzania’s intervention in Uganda.[23]  Although not yet accepted as customary international law, humanitarian intervention may be the answer to ISIS’ seemingly unstoppable movement within, and beyond, the borders of Syria.

While the doctrine of humanitarian intervention is increasingly gaining acceptance, the destruction that ISIS has, and continues, to inflict on the Syrian people warrants immediate involvement.  ISIS continues to control a large portion of eastern Syria, in addition to land in other Middle Eastern countries, and continues to claim responsibility for numerous attacks throughout the world.[24]  Unless the Syrian government requests assistance in the fight against this terrorist group or humanitarian intervention is invoked, ISIS threatens to continue gaining momentum.  If the world continues to stand by and watch innocent lives being taken, the responsibility will no longer fall on ISIS’ shoulders alone.

[1] Jason Hanna, Here’s How ISIS Was Really Founded, CNN (Aug. 13, 2016), http://www.cnn.com/2016/08/12/middleeast/here-is-how-ISIS-began/index.html.

[2] Id.

[3] Id.

[4] Lucy Westcott, CIA Reports ISIS Has up to 31,500 Fighters, Newsweek (Sept. 12, 2014), http://www.newsweek.com/cia-reports-ISIS-has-31500-fighters-270122.

[5] Annalise Lekas, #ISIS: The Largest Threat to World Peace Trending Now, 30 Emory Int’l L. Rev. 313, 321 (2015).

[6] Id. at 321-22.

[7] David P. Forsythe & Mahmood Monshipouri, ISIS and the Civil War in Syria: The Challenge for U.S. Foreign Policy, Geo. J. of Int’l Aff., http://journal.georgetown.edu/ISIS-and-the-civil-war-in-syria-the-challenge-for-u-s-foreign-policy/.

[8] U.N. Charter art. 2, ¶4.

[9] Oren Gross, Unresolved Legal Questions Concerning Operation Inherent Resolve, 52 Tex. Int’l L.J. 221, 231 (2017).

[10] U.N. Charter, supra, note 8, at art. 51.

[11] Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 190 (June 27).

[12] Id. at ¶ 205.

[13] Gabor Kajtar, The Use of Force Against ISL in Iraq and Syria – A Legal Battlefield, 34 Wis. Int’l L.J. 535, 571 (2017).

[14] U.N. Charter, supra, note 8, at art. 39-51.

[15] Gross, supra note 9, at 231 (quoting Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 British Y.B. Int’l L. 189 (1985)).

[16] Permanent Rep. of Syria to the U.N., Letter dated June 18, 2014 from the Permanent Rep. of the Syrian Arab Republic to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/426 (June 20, 2014).

[17] Rep. of Russia to the U.N., transmitted by Letter Dated 15 October 2015 from the Permanent Rep. of the Russian Federation to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/792 (Oct. 15, 2015).

[18] U.N. Charter, supra, note 8, at art. 42.

[19] Christopher M. Ford, Syria: A Case Study in International Law, 85 U. Cin. L. Rev. 185, 225 (2017).

[20] Gross, supra note 9, at 231 (quoting S.C. Res. 2178 (Sept. 24, 2014); S.C. Res. 2249 (Nov. 20, 2015)).

[21] Christine Longo, R2P: An Efficient Means for Intervention in Humanitarian Crises – A Study of ISIL in Iraq and Syria, 48 Geo. Wash. Int’l L. Rev. 893, 903; Johan D. van der Vyver, The ISIS CrISIS and the Development of International Humanitarian Law, 30 Emory Int’l L. Rev. 531, 553 (2016).

[22] Milena Sterio, The Applicability of the Humanitarian Intervention “Exception” to the Middle Eastern Refugee CrISIS: Why the International Community Should Intervene Against ISIS, 38 Suffolk Transnat’l L. Rev. 325, 343 (2015).

[23] Id. at 344.

[24] Islamic State and the CrISIS in Iraq and Syria in Maps, BBC News (Aug. 16, 2017), http://www.bbc.com/news/world-middle-east-27838034.