Legal risk in bombing Syria

It is rare that Australian military strategy turns on a public debate over international law. The United States has formally requested that Australia's support in the fight against Islamic State be extended beyond Iraq to include Syria, where the US has been conducting airstrikes for the past year. Debate amongst Australian political leaders has revolved foremost around the legality of the request, whilst avoiding conclusive positions. Clear options have emerged however, and it is in Australia's interest to set forth its legal case.

To date, Australian military action has been by invitation of the Iraqi government, and therefore avoided charges of illegality that accompanied the US-led 2003 Iraq War. Thorny legal questions now arise as the reality of IS entrenchment in Syria draws Australian and other coalition forces into that territory, even as the government of President Bashar al-Assad conspicuously denies permission to do so. The straightforward solution of overriding opposition through the UN Security Council remains improbable due largely to the veto power of Syrian ally Russia.

Prime Minister Tony Abbott has addressed legal uncertainty via cryptic statements that, unlike Iraq, Syria is an "ungoverned space with a regime that Australia doesn't actually recognise." As a matter of law, Australian non-recognition of the Syrian government has no relevance to the legality of using force. Designating Syrian territory as "ungoverned space" is significant however, with this firming as the most plausible and likely basis for the legality of acceding to US requests.

International law establishes that Iraq may use force in its own self-defence against an aggressor state, and may do with allied assistance. Rules become contested however where the aggressor is not the Syrian state, but a terrorist organisation operating in its territory. Such was the case with al-Qaeda when based in Afghanistan in 2001. Although the Afghan government did not perpetrate the September 11 terrorist attacks on US soil, international law arguably developed to allow military intervention for harbouring the terrorists that did.

The US has long contended that collective self-defence of Iraq can legally encompass airstrikes in Syria, so long as that government remains "unwilling or unable" to prevent its territory being used as a base for ISIS. UN Ambassador Samantha Power argued that: "The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself." The US accordingly "initiated necessary and proportionate military actions in Syria" to "regain control of Iraq's borders." Foreign Minister Julie Bishop appears ready to affirm that precedent in concurring that "the border between Syria and Iraq is no longer governed".

Despite the highly controversial nature of the interpretation, UN Secretary-General Ban Ki-moon also emphasises that "the strikes took place in areas no longer under the effective control" of the Syrian Government. Responses of legal scholars have ranged from declaring that "the unwilling or unable doctrine comes to life", to warning that terrorism threats are causing US lawyers "to make dangerous holes in the concept of sovereignty". As between these options, there are forceful reasons why Australia should endorse the American interpretation.

The crux of opposition to the US position is that it will allow powerful states to erode sovereignty on the basis of self-judging standards. However, the case of Syria demonstrates that there are competing sovereignties​ at play here that cannot logically co-exist. Syria has a claim to the inviolability of its formal territorial boundaries. But Iraq also has a claim to enjoy material sovereignty, in the sense of exercising governance within its own borders. So long as IS controls large swathes of Syria, sovereignty over those parts of the country is a mere legal fiction, but one that threatens the real sovereignty of Iraq.

The idea of establishing the rule of law internationally is that states are primarily responsible for controlling violence within their own borders, but that international law provides means for addressing threats to international peace and security when that fails. International law risks becoming guardian of an entirely lawless zone in northern Syria, devoid of government control, yet apparently beyond the reaches of the international community. International law will become the Islamic State's only global ally if lawyers continue to defend rules divorced from political purpose.

Resolving legal questions is no substitute for answering fraught political dilemmas including, most especially, the coherence of the US strategy of undermining the regime of Bashar al-Assad. Evidence of the regime's human rights abuses remains compelling, but if Assad's regime should fall, IS will be among the leading contenders vying to fill a dangerous power vacuum. Crucially, broadening self-defence to encompass ungoverned spaces would only permit those actions necessary to defend Iraq's sovereignty, and thus in no way permit regime change.

The "unwilling or unable" doctrine undoubtedly carries risks of being hijacked by powerful states to defend might as right. Yet that risk is inherent to all rules governing the use of force. What directly threatens the rule of law is obliging states to choose between military strategy advancing global peace and security, and upholding formal rules.

Abbott now appeals beyond the legal distinctions to argue "the morality is the same". It is a dangerous precedent if responses to global threats must set aside legal principle for subjective morality. International law is an ongoing process of reconciling high ideals with a realistic understanding of political complexity. It is incumbent on our leaders to engage in that conversation.

Malcolm Jorgensen is a PhD candidate and lecturer at the United States Studies Centre and Sydney Law School, at the University of Sydney.

First published in the Canberra Times.