Wednesday, October 15, 2014

Is Modern Terrorism Blurring International Relations Principles?

     The Islamic State is by far the most successful terrorist group in modern, and possibly of all, times.  Their meteoric rise from a local al-Qaeda cell to an insurgency that existentially threatens the region deserves prompt action.  However, the correct course of action to deal with this treat has been the subject of intense debate.  Furthermore, the quagmire that is the Syrian civil war has also given rise to other radical extremist groups who seek to exploit the security vacuum.  Such a vacuum creates a threat to the United States and other western nations, according to several US officials, as these organizations wish to do harm to the west.  The recent action against the so-called Khorasan Group in Syria is evidence that other extremist factions have used the vacuum or "safe haven" of Syria to establish external operational planning against what some groups deem "the far enemy" - the United States.  Is the threat facing nations outside the Middle East and elsewhere posed by these terrorists and the actions taken to address the supposed threat blurring the lines of modern International Relations (IR)?

International Norms


     The modern international system was developed after World War II.  The two world wars wreaked such havoc on European populations that no one wanted to see again.  The First World War saw the extensive use of chemical warfare while the Second World War saw mass genocide.  With the creation of international institutions such as the United Nations and agreements made after the Geneva Conventions, the global community sought to bring together world leaders to create a more codified system that could prevent similar action and mediate international legal disputes.

State Sovereignty


     State sovereignty is one of, if not the, guiding principle of IR today.  State sovereignty is the idea that the ruler of a territory is the supreme leader of that territory and is not accountable to any outside authority.  Since the authorization for the War on Terror after the 9/11 attacks, the issue of state sovereignty has been a tricky one for the United States.  For instance, the United States violated the sovereignty of Pakistan when President Obama authorized a raid on the Abbottabad compound where intelligence indicated Osama bin Laden was residing without first notifying the Pakistani government.  Officials feared that the Pakistani government, who has not always been a trustworthy partner, may tip off bin Laden if the US notified them of the raid.  

Stateless Actors


     Several terrorist organizations who are actively planning to and have attempted to carry out attacks against the United States reside in several countries across the globe.  The difficulty today with the rapid proliferation of emerging terrorist organizations is that they are what are called "non-state actors."  They are not acting on behalf of the states in which they reside and in many cases also pose a threat to their domicile nations.  

     An insightful essay provides clarity to the shifting paradigm of stateless actors.  Author Amitai Etzioni, Director for the Institute for Communitarian Policy Studies at George Washington University, attributes the initial challenges in combating the Taliban in Afghanistan following the United States invasion in 2001, to the rules of engagement.  Amitai believes, "[o]ne major concern is how the U.S. military ought to deal with civilians who are sporadic combatants, and civilians who act, part of the time, as support forces for combatants...My own position is that [civilian combatants] should be treated as a third category: as terrorists, subject to distinct rules and authority."  The mere concept of "civilian combatant" is paradoxical but the tactics used by terrorist groups and insurgencies do not abide by typical international rules and call for a reexamination. 

     One of the reasons the Afghan War was the longest war in United States history was what Amitai calls "abusive civilians."  "Abusive civilians are citizens who misuse their civilian status by violating the rules of war while seeking to benefit from them, demanding that those whom they challenge abide by these rules," Amitai writes.  Under international law, it is a crime to specifically target civilians.  However, unmarked "civilians" in Afghanistan often used this to their advantage, which made distinguishing civilian/combatant status much more difficult for US and International Security Assistance Forces (ISAF).   

     While Amitai paints a picture more associated with war, the idea that ununiformed individuals or terrorists who attack other sovereigns and hide behind the state sovereignty doctrine to avoid direct reprisals for their actions is troubling.  For example, take a hypothetical provided in a draft paper by Nathan Myhrvold, co-founder of Intellectual Ventures. "Suppose Timothy McVeigh [the Oklahoma City bomber] had committed a terrorist act against another country rather than against Oklahoma City. What would [the US] have thought if a foreign military force had attacked McVeigh’s hometown of Pendleton, New York?" Myhrvold hypothesized.   

     The United States does have agreements with several nations that have large terrorism populations where it can carry out aggressive counterterrorism (CT) campaigns such as the targeted killing program, which seeks to target and eliminate terrorist leaders from the battlefield.  Many of these nations with which the United States has partnerships and agreements benefit some from the CT because while these terrorist groups wish harm against the US, they also pose a threat to their government as well.  However, one of the problems the United States faces is when other nations do not act to quell such threats.  The United States is then left to decide how to address these threats within IR doctrines. 

Self-Defense   


     Article 51 of the UN Charter affords the right of self-defense to nations prior to and absent of a UN Security Council Resolution.  Under current international norms, individual nation-states have a right to protect themselves from threats that may emanate or foment abroad.  Ashley Deeks, Professor at the University of Virginia School of Law, identified three situations for lawful force inside a sovereign; "[P]ursuant to authorization by the Security Council under Chapter VII of the Charter, in self-defense, or with the consent of the territorial state (at least in certain circumstances).  The right to use force in self-defense is triggered by an 'armed attack,' as recognized by Article 51 of the Charter." 

     Many lawyers among previous and current US presidential administrations have adopted the "unable" or "unwilling" doctrine within US domestic and international law (under Article 51.)  Under this doctrine, the United States, or any state for that matter, is justified in breaching another state's sovereignty if that state is unable or unwilling to quell threats against it. 

     As Attorney General Eric Holder has maintained, "The use of force in foreign territory would be consistent with these international legal principles...after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States."  However, as Micah Zenko, Douglas Dillon Fellow at the Council on Foreign Relations, questions: "[W]hat are the criteria by which the executive branch determines that another country is “unable or unwilling” to take measures against suspected terrorist threats?"

     In fact, the United States is currently using the unable and unwilling doctrine, combined with other international and domestic legal justifications, for their recent military action in Syria.  United States Ambassador to the United Nations, Samantha Power, in a letter to UN Secretary General Ban Ki-moon justifying the US strikes in Syria, wrote, "States must be able to defend themselves...as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself."  

     In a further articulation of such a justification, Robert Turner, law professor at the University of Virginia, wrote recently, "As a general rule, states are not permitted to use force within the territory of another sovereign state without its consent. But the doctrine of State Responsibility imposes on Syria (like all states) a duty to prevent its territory from being used to attack another state. If Syria is either unwilling or unable to fulfill that responsibility, as the victim of those attacks, Iraq—or an ally like the United States, acting in collective self-defense at the request of Iraq—has a right to use necessary and proportional force within Syrian territory to prevent such attacks." 

     In some cases, legal scholars have expressed skepticism to the unable or unwilling doctrine, especially since its language does not appear in Article 51 of the UN Charter.  Professor Kevin John Heller of  the School of Oriental and African Studies (SOAS), University of London, strongly questions this doctrine in regards to its applicability to the controversial US targeted killing program.  "Is the 'unwilling or unable' standard the correct one?  Perhaps — but that position needs to be the end of the analysis, not the beginning... It is certainly possible to argue that the customary rules governing the use of force in self-defense have evolved to adopt the 'unwilling or unable' standard.  But that is a highly contentious and extraordinarily difficult question...international law is simply whatever the U.S. says it is," Heller asserts.  His analysis and opinion is especially insightful being that he is not from the US.  The US has used a plethora of legal justifications for its War on Terror, many of which run contrary to human rights principles, which Heller challenges.

       Under Article 51, nations have also employed what is referred to as "collective self-defense" justifying breaches of sovereignty.  Under collective self-defense, nations may come to the aid of other nations at their request.  Additionally and similar to the unable and unwilling doctrine, nations acting under collective self-defense can violate the sovereignty of another state if a particular threat may potentially spill over into one's territory.  Robert Turner writes on collective self-defense; "Among other justifications, Article 51 of the UN Charter clearly recognizes the (preexisting) right of countries to act in collective self-defense of states that are being attacked and request assistance."

     The United States has employed the collective self-defense narrative in Iraq and Syria.  Deputy national security adviser to President Obama, Tony Blinken, justifying the initial strikes inside Syria against the Islamic State, stated, "there is a doctrine of collective self-defense.  The Iraqis asked us to take action.  Indeed, they asked the United Nations, wrote to the United Nations, asking the United States and other countries to act against ISIL because ISIL in Syria threatens them.  Unfortunately, the border has been virtually erased.  And even as we take action against ISIL in Iraq, if we're not able to do so as well in Syria, they can continue to plot and plan and build attacks, including on Iraq, from Syria. And so this was at the request of the Iraqis and it fits into the theory of collective self-defense."  Blinken was using the administration's preferred acronym for the Islamic State.  In that context, Mr. Turner states, "So even if [the Islamic State] had not been killing Americans with IEDs and by cutting off their heads, we could attack them at the request of Iraq."

     Ms. Deeks also indicated that the threat of imminence also serves as a justifiable use of force and wrote, "Most states and scholars recognize that an imminent threat of an armed attack would also trigger a state’s right to self-defense, though there is debate about what constitutes an 'imminent' threat."

Hot Pursuit


     In another seemingly strange international legal concept, Lionel Beehner, PhD candidate at Yale University, wrote recently in Foreign Affairs on a concept invoked by Secretary of State John Kerry for US military action in Syria against the Islamic State - the "hot pursuit" doctrine.  According to Beehner, the hot pursuit doctrine "has traditionally applied to the right of a navy to chase pirate ships from its territorial waters into the high seas. And in its modern incarnation -- as part of domestic criminal law -- the doctrine is primarily used to allow law enforcement officials to pursue criminals fleeing across borders."    

     Beehner notes that by invoking this doctrine in Syria, US policy makers could be opening a "Pandora’s box of political ironies and potential legal dilemmas."  Such ironies could pave the way for nations such as Russia to invoke similar justifications for incursions into surrounding nations to defend their own self-interests.  Beehner also stated that the doctrine has "little legal validity on land, unless participating countries conclude a separate treaty spelling out such rights."      
 

***

     Terrorism has undoubtedly been on the rise within the last thirteen years.  While regional terrorism has always existed, the problems that stem from it have metastasized globally.  Nations within the Middle East have begun to use proxies or non-state actors to fight for their interests as to not get their diplomatic hands dirty.  The current situation in Syria is so difficult to address because, while the United States is effectively at war against the Islamic State, a non-state actor despite its name and ambitions (though President Obama is characterizing operations as counterterrorism), the United States does not have permission from the Syrian government or the cover of a UN Security Council Resolution like in past conflicts such as in Libya and the first Gulf War.  In fact, Syria and its allies have stated that the current military action by the United States would have been seen as an act of aggression, yet Assad (not his allies) has been complacent with the current strikes because he knows he will stand to benefit from them.  The United States has, on several occasions, ruled out partnering with the Assad regime and the longer term goal of the United States is to see Assad thrown from power.

     The greater proliferation of civil wars and non-state actors who exploit them has created a system in which existing legal and international formalities are twisted in order to achieve subjective ends.  Since some nations are not able to protect their citizens or quell insurgencies, responsibility has fallen, or rather been sought out, by others to address the problem.  State sovereignty is one of the most important staples of international relations and current circumstances seem to call for exceptions to that rule.  International law is supposed to protect nations from international encroachment (such as Russia in Ukraine), however, it appears as if it may no longer be adequate to serve in that capacity.

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