For those who need to find a basis in international law for the strikes by the US and allies – Saudi Arabia, Jordan, Bahrain, Qatar and the UAE – against Islamic State targets inside Syria early yesterday, there will always be an arguable case. However tentative.
There's a unanimous UN Security Council resolution condemning IS and mandating sanctions. With Russia almost certain to oppose a specific resolution on Syria, Security Council backing is unlikely to be forthcoming. Today President Barack Obama will ask the UN to require states pass laws that punish those who travel across borders to take part in any terrorist acts, and to work to fight violent extremism. The resolution, under Chapter VII of the Charter, is legally binding, though nothing in the measure calls for military action.
Then there’s the UN doctrine of “responsibility to protect”, certainly arguable in relation to the genocidal threat to Kurds fleeing IS advances inside Syria near the border town of Kobani. The US was responding to an urgent appeal from opposition forces for military support – more than 130,000 Kurds have fled north to Turkey in recent days, while 300 villages have been emptied of their populations.
As for the requirement to seek the permission of the state whose borders such an attack violates, the US insists, with somewhat dubious legality, that President Bashar al-Assad is no longer a legitimate leader anyway following his use of chemical weapons against civilians. Accordingly the US and its allies have not sought Assad’s permission, though they did tip him off that the raid was about to happen.
Asking Assad for permission would certainly provoke political problems, given that the US is actively supporting those trying to oust him. But it would not be unreasonable to speculate that Washington or one of its allies sought, at the very least, informal assurances through back channels that Syria would not attack its aircraft as they bombed IS. Would that be tantamount to permission? Morally at least? Possibly, but unarguable because such a tacit agreement can never by its nature be acknowledged. If the legal basis for the raid is at best dubious, its political legitimacy has been strengthened by the involvement of important Sunni Arab neighbouring states, although that in itself has the potential to turn the conflict into a regional one. IS immediately warned it would strike back at those involved.
Yet, whatever its legality, the actions of the US and its allies are unlikely to provoke significant international opposition. The realpolitik of world politics, of deep fears about IS and wide frustration with great-power veto constraints on the UN's ability to act, mean that Obama will be given a pass. For those, like Ireland, committed to the UN and building a law-based international order that will be seen as disappointing. But inevitable.