The Iraqi air strikes in Syria on Friday have inevitably brought up the question of their legality. The highly probable answer is that the air strikes were legal under international law.
If the air strikes were carried out with the prior permission of the Syrian government, then the question of their legality does not exist: the Iraqi air strikes would be legal, just as Russian air strikes which happen in Syria are.
There is no confirmation as yet of whether or not Iraq had Syria’s permission to carry out the air strikes. However it is likely that it did. Importantly, as of the time of writing, neither Syria nor its allies – Iran and Russia – have publicly objected to the air strikes.
However even if the Iraqi air strikes were carried out without the permission of the Syrian government, there is a strong arguable case that they were legal.
Iraq is in a completely different position from the US led ‘anti ISIS’ coalition, Turkey and Israel, which regularly carry out air strikes on Syrian territory without the permission of the Syrian government. Unlike those states Iraq not only borders Syria but like Syria is at war with ISIS (‘the Islamic State’) which controls large areas of its territory.
ISIS does not recognise the international border between Iraq and Syria since it denies the right to existence of those states, and its ‘Islamic State’ straddles that border, occupying large areas of territory on either side. Moreover ISIS regularly moves men and supplies across the border – which it does not recognise – to attack either the Syrian or the Iraqi army in their respective territories.
The legal framework for taking military action in this context is set out in Article 51 of the UN Charter
Nothing in the present Charter shall impair 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Article 51 is interpreted by reference to the so-called Caroline Test, which was adopted by the Nuremberg Tribunal and which is recognised in international law. It requires that a state when taking military action on the territory of another state in order to prevent an attack upon it, must show that
necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation ….. and that …..[the force used] did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.
In other words the test requires
(1) The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option (necessity); and
(2) The response must be proportionate to the threat (proportionality).
In my opinion Iraq has at least a good arguable case that the air strikes fulfil the criteria of Article 51 and of the Caroline Test.
The Iraqi army is fighting a bitter war against ISIS on Iraqi territory. Iraq regularly carries out horrendous terrorist attacks on Iraqi territory. ISIS regularly transfers men and supplies from the territory it controls in Syria to carry out these attacks against Iraq on Iraqi territory, and in the present fighting in Iraq it is doing so on an ongoing and continuous basis. There is no doubt therefore that there is a threat to Iraq from ISIS in Syria which is both imminent and real. Moreover since the Syrian government does not control the area which Iraq has bombed, Iraq has a reasonable case in international law that it had no peaceful alternatives other than to carry out the air strikes, since it could not call on the Syrian government to prevent ISIS from moving men and supplies from this territory within Syria to Iraq in order to carry out its attacks on the Iraqi army and Iraqi civilians there. I do not know whether Iraq has reported the air strikes to the UN Security Council, but I presume it has, and on the face of it the extent of the force used, which seems to have targeted only ISIS facilities and not Syrian government facilities, looks proportionate.
The Caroline Test has been grossly abused by the US and the Western powers in recent years to manufacture a whole bogus doctrine of ‘anticipatory self-defence”, which allegedly permits the Western powers to take military action anywhere in the world that they want without the prior permission of foreign governments or of the UN Security Council in order supposedly to ‘anticipate’ threats to themselves however ephemeral or frankly fictitious they might be. The military action the Western powers are conducting in Syria, supposedly against ISIS, is justified in this way. In reality the Caroline Test cannot be used to justify Western bombing in Syria since the attacks the Western powers are ‘anticipating’ from Syrian territory are not ongoing and imminent, and the force they use is completely disproportionate. Moreover – as everyone knows – their actions are ultimately targeted not at ISIS but at the Syrian government, which – unlike the Iraqi government – they want to overthrow, so they cannot claim to be making their argument in good faith.
The fact that the Caroline Test has in recent years been so grossly abused in order to justify Western aggression around the world does not however mean that it no longer exists and does not apply in proper and appropriate circumstances. It both does exist and on the face of it Iraq’s air strikes in Syria are covered by it.
As to the political implications of these strikes, that is in the nature of things a more problematic question. Whilst it is true that the US is an ally of Iraq and an enemy of Syria, it does not in my opinion follow that Iraq is the enemy or the potential enemy of Syria. Unlike the US Iraq has never sought to overthrow the Syrian government, and Iraq has very good relations with Iran and Russia, which are Syria’s allies. Russian aircraft which fly to Syria from Russia – including TU22M3 bombers that carry out air strikes on ISIS in eastern Syria – regularly do so by flying through Iraqi air space with the permission of the Iraqi government. Moreover Shia militia from Iraq participated with at least the tacit permission of the Iraqi government in the Syrian army’s recent campaign to liberate eastern Aleppo from Al-Qaeda.
On balance I would say that Iraq and Syria have a sufficient commonality of interest at the moment in their respective fights against ISIS – the mortal enemy of both – for the Syrian government to take a sanguine view of the Iraqi air strikes.
Longer term, I doubt that Iraq threatens Syria in the way that Turkey does and the Western powers do, and I suspect that once the wars on their respective territories have ended there will be at least an attempt to make these two neighbouring Arab countries friends.