Testing the Validity of US Self-Defence Arguments against the Khorasan Group in Syria

4 Nov 2014

Dr. Christophe Paulussen & Dr. Kinga Tibori Szabó*

On 23 September 2014, US President Obama announced that the night before, US armed forces had begun strikes against ISIL targets in Syria. This came as no surprise, as Obama had already outlined his strategy on combating ISIL thirteen days before, explaining: “I have made it clear that we will hunt down terrorists who threaten our country, wherever they are. That means I will not hesitate to take action against ISIL in Syria, as well as Iraq. This is a core principle of my presidency: if you threaten America, you will find no safe haven.” Also in Obama’s speech of 23 September, ISIL’s threat against the US was mentioned as a casus belli, although the President acknowledged, in his speech of 10 September, that “specific plotting” against the US was not yet detected. Interestingly, the threat another group in Syria (which did not yet feature in the 10 September speech) posed to the United States was used to justify the strikes as well: “Last night we also took strikes to disrupt plotting against the US and our allies by seasoned al-Qaeda operatives in Syria who are known as the Khorasan group. And once again it must be clear to anyone who would plot against America and try to do Americans harm that we will not tolerate safe havens for terrorists who threaten our people.” In her letter to UN Secretary-General Ban Ki-Moon dated the same day, US Representative to the UN Samantha Power likewise explained that the US had started the strikes in Syria for two reasons: “[I]n order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders. In addition, the United States has initiated military actions in Syria against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.” According to the US, strikes were legal in both situations as Syria is unwilling or unable to prevent the use of its territory for such attacks.

This commentary will only focus on the validity of the specific US self-defence arguments against the Khorasan group in Syria. It will not delve into the strikes against ISIL, at the request of Iraq, in Iraq itself (which seems to be covered from an international law point of view by Iraq’s right of self-defence and its request for support). Likewise, it will not focus on the lawfulness of strikes in Syria more generally. On that aspect it suffices to say that such strikes may be deemed lawful if consent on behalf of Syria can be established. To date, there has been no formal request to intervene from the Syrian authorities, and there is no expressed coordination between Syria and the US. At the same time, there are no clear objections against he strikes, and, in fact, Syrian officials appeared to have welcomed the strikes. Neither will this commentary deal with the application of the humanitarian intervention concept in either Iraq or Syria.

To test the validity of the specific US self-defence arguments against the Khorasan group in Syria, this commentary will look at both Article 51 of the UN Charter and customary international law on this issue. In addition, the above-mentioned unwilling or unable criterion will be critically reviewed.

Pursuant to article 51 of the UN Charter, “[n]othing 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”. First, the question whether self-defence is possible against a non-state actor, such as the Khorasan group, should be addressed. It can be argued that acts of non-state actors, such as terrorists, might indeed lead to an armed attack, as a result of which a state can exercise its right of self-defence, but whether this is only possible if these acts can be attributed to a state or not is the object of debate – in both case law and literature. We will return to this issue below. At this point, let’s assume that there does not have to be any link with a state and that an autonomous terrorist group can also mount an armed attack.

Although Article 51 of the UN Charter requires the occurrence, the existence, of an armed attack, it is well-accepted that a state does not have to wait for the missiles to be launched. It can anticipate such a launch. According to the well-known customary international law formula stemming from the 19th-century Caroline affair between the US and the UK, there must be “a necessity of self defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”. This shows that even though anticipatory self-defense is possible, there must be (a threat of) an imminent (see words such as “instant” and “no moment for deliberation”) armed attack.

It can be argued that even though threats may have been made in the current situation under examination, it is not evident that there is a clear and concrete threat of an imminent armed attack by the Khorasan group against the US. Different reports circulate. On 23 September, The Washington Post wrote: “Army Lt. Gen. William C. Mayville Jr., director of operations for the Joint Chiefs of Staff, later told reporters that the group was in the “final stages of plans to execute major attacks against Western targets and potentially the U.S. homeland.” He added, “We believe the Khorasan Group was nearing the execution phase of an attack either in Europe” or the United States, having attempted to recruit Westerners who can more easily enter the target countries.” However, the report continues, “James R. Clapper Jr., the director of national intelligence, said late last week that “in terms of threat to the homeland, Khorasan may pose as much of a danger” as the Islamic State”. And with regard to the Islamic State, Homeland Security Secretary Jeh Johnson still stated on 29 August that the US is not aware of any specific threat to the US homeland from Islamic State militants.

From some of the language used above (“major attacks against Western targets and potentially the U.S. homeland [emphasis added]”), it seems that the threat of Khorasan, if it even exists, might actually be greater for Europe than for the US. This could perhaps be explained by the fact that many more Europeans than Americans have joined the fight in Syria (and Iraq) and that Khorasan, or any terrorist group, could convince former fighters to commit attacks when they return home. However, there is no report of any of the European states having asked the US to assist in self-defence because of an imminent armed attack. Indeed, even though UK Home Secretary Theresa May stated that attacks were planned, UK authorities also said they had “no knowledge of any “imminent” plot to attack British targets.”

There is thus a risk that the version of anticipatory self-defence Obama is using in this case is not linked to the existence of a concrete (threat of an) imminent attack. This is reminiscent of former US President George W. Bush’s interpretation of self-defence, also called preventive self-defence. The 2002 National Security Strategy echoed the approach of the Bush administration by stating that anticipatory action in self-defence was lawful “even if uncertainty remains as to the time and place of the enemy’s attack.” The Obama approach to the threat posed by the Khorasan group to the US seems to surpass even the controversial Bush doctrine, as not only the time and place of the future attack is unknown, but also its very contemplation against the US is uncertain.

As this informative post at Just Security has also explained, the US considers Khorasan as operatives of Al Qaeda, it views itself to be in an ongoing armed conflict with Al Qaeda, and it may thus use force in Syria – because Syria is unwilling or unable to take action – without having to undertake a new self-defence analysis. The notion of a global armed conflict or a global battlefield, while part and parcel of the counter-terrorism strategy of the US, is extremely controversial in international law because it expands the armed conflict paradigm (and the applicability of the law of armed conflict) to the detriment of the law enforcement paradigm, which, as the US acknowledged, is very effective in combating terrorism.

Regarding the unwilling or unable criterion: this “is now a fairly well settled part of the US government’s legal position” but “remains controversial under international law”. Samantha Power explained the criterion as follows: “States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 of 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.” Even if we accept the assumption made above and put aside the fact that some scholars (and relevant case law) still argue against a right of self-defence against a terrorist group as such, not linked to a state, a succinct analysis of the enunciated test will highlight several problems. First of all, the test is extremely vague and undefined. When can it be said that a government has not “confronted” a safe haven “effectively”? Who determines the meaning of “effectively”? When can it be said that a state is unwilling or unable to take measures against the group? Even Ashley Deeks, a scholar often defending the criterion, concludes that it is not clear what it requires and that it lacks content. It does not need to be emphasized here that indistinctness is highly problematic when it comes to such serious matters as (exceptions to) the use of force. Second, whereas Power’s first sentence still refers to attacks, the second sentence is stated in more general terms: “The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself.” There is a danger that, by putting the unwilling or unable criterion to the foreground, the only real criterion, namely whether or not there is (a threat of) an imminent armed attack, is pushed to the background. That is not to say that the fact that a state is unwilling or unable to repress (terrorist) groups in its country is a meaningless factor. To the contrary, it is a significant factor, but it is arguably part of the already-explained Caroline requirement that there should be a necessity to act in self-defence. In other words, whether or not it is necessary to act against (a threat of) an imminent armed attack can be derived from many practical circumstances, including the fact that a state is unwilling or unable to deal with the (threat of an) imminent armed attack itself. Nonetheless, the sole fact that a state is unwilling or unable to prevent its territory from being used by terrorists is not enough to trigger the right of self-defence. There must, at the very least, be (a threat of) an imminent armed attack involved.

Finally, it should be mentioned that the Caroline formula also requires that even if there is an initial necessity to act, the concerned state must also show that, through its actions, it “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, once it has been established that it is necessary to act, the acts themselves must also be necessary and proportionate to avert the attack or to bring it to an end. Therefore, statements that the strikes have the object of ultimately “destroying” terrorist groups – a point made in relation to ISIL, but probably also valid as regards the Khorasan group – are problematic, as “[t]he United States (…) will need to establish that the destruction of the group is necessary and proportionate to the threat – something it very well may do, but which will likely raise questions about proportionality“.

We must therefore conclude that the US self-defence arguments against the Khorasan group raise serious questions. And it is all very much reminiscent of the speech “Strengthening our Security by Adhering to our Values and Laws, by John Brennan, Assistant to the US President for Homeland Security and Counter-terrorism, at Harvard on 16 September 2011. According to Brennan, the authority to use military force is not restricted solely to “hot” battlefields. The US, because it is engaged in an armed conflict with Al Qaeda, has authority to take action against Al Qaeda and its associated forces without doing a separate self-defense analysis each time it wants to use force, think of the targeted killings via drones of suspected Al Qaeda operatives and associated forces in states like Yemen and Pakistan. Accordingly, the US reserves the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves and that “a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups”.

Despite the controversial nature and precarious legal basis of its approach to self-defence, the US continues its stance, perhaps in order to push the law further. During his speech at the UN General Assembly on 24 September, Obama talked about “the failure of our international system to keep pace with an interconnected world” and about “renew[ing] the international system”. He even stated that “we cannot rely on a rule book written for a different century” – an implicit reference to the UN Charter? In any case, there is overwhelming support among states for a restricted approach towards anticipatory self-defence, and only very few accept the controversial unwilling or unable criterion.

If the US is willfully challenging the UN Charter on these points, this would be a problematic development. Not only from a legal perspective, but also because counter-terrorism measures that fail to comply with the Charter of the United Nations may contribute to increased radicalization and the fostering of a sense of impunity. These undoubtedly true and wise words are not ours; they were stated by the UN Security Council, chaired by Obama himself, when UNSC Resolution 2178 on foreign terrorist fighters was adopted, also on 24 September.

In criticizing Russia for its role in the Ukraine crisis during his UN General Assembly speech, Obama remarked that the approach “might makes right” is wrong and that “America stands for something different. We believe that right makes might”. If that is really the case, then it would be advisable for the US to give heed to the centuries-old, widely accepted content of the right of self-defence, which, as argued before, is broad, capable of responding to terrorist threats and not in need of expansion.

*Dr. Christophe Paulussen is an ICCT Research Fellow and Dr. Kinga Tibori Szabó is the winner of the ASIL Francis Lieber Prize 2012 for her book ‘Anticipatory Action in Self-Defence’ (T.M.C. Asser Press)