Academic journal article Texas International Law Journal

Unresolved Legal Questions concerning Operation Inherent Resolve

Academic journal article Texas International Law Journal

Unresolved Legal Questions concerning Operation Inherent Resolve

Article excerpt

TABLE OF CONTENTS

INTRODUCTION..........................222

I. RISE OF ISIS..........................222

II. OPERATION INHERENT RESOLVE..........................229

III. INTERNATIONAL LAW AND OPERATION INHERENT RESOLVE..........................231

A. Security Council Authorization..........................231

B. Invitation to Intervene..........................235

C. Humanitarian Intervention..........................238

D. Self-Defense..........................240

1. The Inherent Right of Individual or Collective Self-Defense..........................240

2. May a State Legally Exercise Force in Self-Defense Against a Non-State Actor?..........................243

3. "Unable or Unwilling"..........................246

CONCLUSION..........................253

Introduction

Since August 2014, the United States and several of its allies have been embroiled in military operations against the Islamic State of Iraq and al-Sham in Iraq, Syria, and later, also in Libya. Those military engagements raise a plethora of vexing legal questions both on the domestic constitutional law plane in the United States' and on the international level. This Article seeks to explore and examine the legal justifications for the United States's military operations against ISIS under international law.

Part I sketches the rise of ISIS, and Part II briefly describes the contours of Operation Inherent Resolve, which was launched by the United States on August 8, 2014 with a series of airstrikes directed against ISIS targets in Iraq before expanding, a month later, to attacks on ISIS targets in Syria. Part III examines critically the four main legal justifications put forward in support of the United States's (and its allies') military operations against ISIS, namely acting in pursuance of Security Council authorization (in reliance on Security Council Resolution 2249 of 2014), invitation by the Iraqi government to its friends and allies to intervene militarily in order to defeat ISIS, claims of humanitarian intervention, and last but not least, arguments that in pursuing military options, the United States exercises its inherent right for individual or collective self-defense.

I. Rise of ISIS

The origins of ISIS can be traced back to 1999 and the founding of Jamaat alTawhid wa'l-Jihad (JTWJ) by Abu Musab al-Zarqawi.3 In October 2004, after several years in which JTWJ was loosely affiliated with al-Qaeda,4 al-Zarqawi formally pledged allegiance to that organization and to Osama bin Laden, renaming JTWJ as al-Qaeda in the Land of Two Rivers (AQI).5 However, there continued to be an "ideological divide" between AQI and al-Qaeda, as "Zarqawi felt that the only way to save the umma (global Islamic community) from itself was through purging it, whereas bin Laden's number two, Ayman al-Zawahiri, believed that Muslims were not the problem, but that instead the 'apostate' institutions needed to be changed."6 In 2006, al-Zarqawi established a new terrorist organization, the Majlis Shura al-Mujahedin (MSM), a collection of "Iraqi insurgent factions... with AQI at the top."7 Al-. Zarqawi's death in June 2006 by U.S. airstrike" "invalidated MSM's implied pledge to bin Lad[e]n."4 Within a few months, al-Zarqawi's successor, Abu Hamza al-Muhajir, shifted his loyalty to Abu Omar al-Baghdadi, the leader of the Islamic State of Iraq (ISI).10 In 2010, al-Baghdadi was killed in "an operation led by Iraqi security forces with the support of U.S. troops."11 He was replaced by Abu Bakr al-Baghdadi, who, in April 2013, changed the organization's name to the Islamic State of Iraq and alSham (ISIS), announcing that it was extended into Syria.12 Baghdadi went so far as to assert that al-Zarqawi was never truly loyal to Osama bin Laden and al-Qaeda and that the purported alliance was "for strategic reasons, and not out of some genuine devotion or need."1'

For its part, al-Qaeda openly disavowed ISIS in February 2014, declaring, "ISIS is not a branch of the Qaidat al-Jihad [al-Qaeda's official name] group, we have no organizational relationship with it, and the group is not responsible for its actions. …

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