To say that this issue is broad and lends itself to a wide array of sub-topics is an understatement; such topics include direct state-on-state military action, state-on-nonstate action, prolonged military activity vs. limited military strikes, the extent to which states can permit other states to engage in extensive military operations against their own non-state actors, and the extent to which active support from one state toward non-state actors of another states infringes upon the latter's sovereignty. This is far from an exhaustive list, but it merely underscores the difficulty in analyzing the topic. Illexum will, of course, place a higher degree of focus on examples from today's news. We will include some historical analyses as well, however, because those are also instructive on how we will view territorial sovereignty going forward.
The first topic that we will explore is ISIS - specifically, how U.S. military action against ISIS (and other groups, such as al-Nusra) affects traditional notions of territorial sovereignty. ISIS is a good example of the erosion of territorial sovereignty, given that it currently controls territory in both Syria and Iraq. Thus, from the outset, the challenge of containing or rolling back ISIS necessarily involves a different approach to the issue of territorial sovereignty. Moreover, the nation-states in which ISIS operates have very different relationships with the United States. While the Iraqi government invites U.S. military assistance in fighting ISIS, the Syria's President Bashar al-Assad is not so eager to invite U.S. military involvement.
Brief Background: U.S. Military Action Against ISIS
Unsurprisingly, therefore, the first U.S. action against ISIS took place in Iraq. First, on August 7, 2014, the U.S. dropped aid packages to displaced Iraqis who had been forced to evacuate to the mountainside in light of ISIS advances. Specifically, the U.S. launched airstrikes on August 8, 2014, against ISIS artillery that was being used to attack Kurdish forces. The humanitarian aid drops continued throughout August, as did the airstrikes against ISIS.
The two questions that plagued the United States political and military leadership, however, were 1) whether the U.S. would put troops on the ground and 2) whether military operations would expand to the civil war-ravaged Syria. As to the first question, President Obama initially declared (in early August 2014) that the United States would not be sending troops back to Iraq to fight ISIS;
As Commander in Chief, I will not allow the United States to be dragged into fighting another war in Iraq, so as we support Iraqis as they take the fight to these terrorists, American combat troops will not be returning to fight in Iraq because there is no American military solution to the larger crisis in Iraq,Of course, a few hundred American troops already had started returning to Iraq in June 2014, albeit as "advisers" to Iraqi and Kurdish military forces. As the airstrikes ramped up in August 2014, the U.S. sent 150 more advisers to Iraq, with Defense Secretary Chuck Hagel emphasizing that this was not a "combat boots on the ground" type situation. In November 2014, President Obama authorized sending a total of 3,100 troops to Iraq - still, he claimed, in an advisory and training capacity. The latest update is that President Obama will soon request authorization from Congress for military action against ISIS (despite claiming that the 2001 Authorization of the Use of Military Force (AUMF) already gives it the authority to engage in action against ISIS).
As to the second question, the United States did indeed expand its war against ISIS to Syria, launching airstrikes within Syria's borders in September. Incidentally, the strikes were not limited to ISIS; in September, the U.S. launched strikes against the shadowy Khorosan Group and in November, it attacked the al Qaeda splinter group Jabbat al-Nusra. Of course, some analysts say that the Khorosan Group is merely a subset of al-Nusra, and that the Obama administration played up the Khorosan Group in order to build up public support for its military action in Syria. The strikes against ISIS have continued into the new year, with the U.S. launching strikes against ISIS in Iraq and Syria just this past weekend.
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| Smoke rises over Kobane, Syria, after a U.S. airstrike against ISIS on December 25, 2014 (Source: The Guardian) |
Implications for the Erosion of Territorial Sovereignty
The traditional notions of territorial sovereignty have eroded in recent years, especially in those regions where borders or entire regions are out of government control. Over the last twenty years, this has been especially pronounced in the context of U.S. counter-terrorism. Airstrikes have been a go-to American response to terrorism, whether it be a response to the 1998 embassy bombings or the prolonged drone war in Pakistan.
There are two common scenarios for drone strikes against militants (though, of course, one can certainly imagine other situations) - those in which the host state expressly or implicitly condones the military action, and those in which the host state opposes such action. How, one might ask, does such military action fit within the international legal framework for military action? The United Nations charter prohibits military action that violates territorial sovereignty: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." The notable exceptions to the use of force against another state are Security Council-authorized actions and "individual or collective self-defence if an armed attack occurs against a Member of the United Nations." Typically, the United States presents its military actions as self-defense in response to the armed attack of 9-11 (or, in the case of Iraq, anticipatory self-defense). Moreover, in those cases where a state invites U.S. action as part of its own counter-terrorism efforts, one might legitimately describe such action as "collective self-defense." What is unclear in this scenario is whether such a country must formally request assistance in self-defense, or whether secret, behind-the-scenes discussions suffice. For example, current U.S. military action in Iraq is done with the knowledge and cooperation of the Iraqi government. The U.S. drone war in Pakistan, meanwhile, was done behind closed doors; Pakistan would often openly condemn U.S. strikes while secretly providing intelligence and targeting information to the U.S. for those very strikes.
When a state openly opposes military operations by a third party within its borders, the legal basis for such action becomes unclear. In Syria, for example, the United States has taken action against ISIS and al-Nusra. It has not taken open military action against President al-Assad's forces, although it has provided weaponry, training, and other support for anti-Assad forces. What presents the United States with a distinct legal challenge, however, is how to justify its invasion of sovereign territory by airstikes and special forces operations. There is no collective self-defense, as can be argued in Iraq and potentially in Pakistan. The claim of self-defense is a stretch, given that the U.S. has had to make the dubious claim that ISIS is part of al Qaeda in order to justify such action under the AUMF and the theory that 9-11 constituted an armed attack against which the United States is still engaged in self-defense. Another theory that has found its way into legal scholarship is that states that cannot control their own borders, or engage in atrocities against their own people, "waive" any claim to territorial sovereignty. This theory, known as "involuntary sovereignty waiver," has been put forth to justify military action in Iraq in 1991 and Serbia in 1999.
The United States has not directly put forth a coherent legal theory for its military action in Syria, and it may well not want to. General norms of international law disfavor unilateral or mostly-unilateral military action, which is why the U.S. is always eager to garner multinational support to buttress the legitimacy of its actions. Even where those actions are multilateral, however, the legal underpinnings for the military action remain the same. The only difference is the political distinction between the world's sole superpower engaging in unilateral military action and that same superpower working with other states to thwart the spread of ISIS. Like most other international norms, the sanctity of territorial sovereignty is often the product of the prevailing political viewpoints -- or whatever the current military and political realities dictate. The United States does not want to be perceived as engaging in numerous military actions that violate territorial sovereignty. At the same time, its words and actions have made it clear that the United States views territorial sovereignty as subservient to its own defense needs, whether those needs be real or perceived. The very notion of a "global war on terror," by its very name, suggests that territorial sovereignty is not as resolute or finite as it was once perceived to be.
As the United States gets dragged into yet another military conflict on foreign soil, however, one must ask -- if Syria doesn't want us there, and the country is in the midst of a devastating civil war, what will further military engagement in the area accomplish? Will the United States continue its mission creep and deploy forces (either alone or in concert with Iraqi, Kurdish, or other military forces) ever closer to the Syrian border? Will we engage in ground operations in Syria, and if so, will we have the logistical base to do so? This is what happens when you engage in military action in a hostile country, and why the violation of territorial sovereignty matters -- what sort of environment does the United States expect to find, in such a deeply divided country? It would face enemies on multiple fronts, and its scarce allies hold very little territory right now. If the United States deepens its military involvement, it risks getting to the point where the only way to protect its own forces would be a large-scale deployment - something the country hardly has the stomach for.
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