Arlan Cohen revisits his recent report on the Islamic State, “Scared to Fight,” with Cornell Law Professor Jens David Ohlin. In part one of the interview, they discuss the legal and policy justifications governing the US response in Iraq and Syria.

Jens David Ohlin is a professor at Cornell Law School who specializes in international and criminal law. He has published a number of books on the laws of war, targeted killings, and the role of non-state actors in armed conflicts. His newest book, The Assault on International Law, is due out this January through Oxford University Press. The Journal of Law and Public Policy’s blog unit reached out to Professor Ohlin to get his thoughts on the Islamic State (IS) and recent events in the Middle East.

The following interview is published in two parts.

PART ONE

Matt Olson of the National Counterterrorism Center stated in a speech recently that we do not have any credible information that the Islamic State is planning to attack the U.S. President Obama has also said that we have not yet detected specific plotting against our homeland. Assuming the circumstances have not changed and IS still does not pose a direct threat to the United States, what makes IS a terrorist organization in the eyes of Americans, as opposed to an insurgency?

I think that is a valid point. I think the U.S. administration often plays fast and loose with these terms. IS clearly is an insurgency. It also clearly is a non-state actor. It is also a belligerent in a non-international armed conflict against both the Iraqi government and the Syrian government. But those things, taken together, do not necessarily entail that it is also a terrorist organization. Of course, there is not really a coherent definition of what counts as a terrorist organization, either under international law or domestic law. It is very contested what counts as terrorism under international law. And then, under domestic law, U.S. statutes do not attempt to define a “terrorist organization.” They simply refer to a list being maintained by the state department of designated terrorist organizations. So what counts as a terrorist organization is whatever the U.S. government says is a terrorist organization, which is not a very satisfying definition at all.

How does an organization get on that list?

The Federal government decides that an organization is seeking to achieve political aims through violence. One way could be by launching attacks against the United States, but not exclusively. There are organizations on the designated terrorist list that include terrorist organizations fighting other states. But the basic animating impulse, I think, is that the organization is pursuing a particular policy of using violence as a means to an end, and to place pressure through fear of attacks in order to generate some kind of political change. That really is the sine qua non of terrorism. In that sense, it may be legitimate to consider IS a terrorist organization in so far as they do attempt to spread fear by using beheadings, by violating the laws of war and massacring infidels in various locations. So they are kind of using terrorist methodology. What they have not done so far is that they have not directly attacked the homeland. Their attacks against the United States so far have been limited to the American citizens who are captured and ultimately assassinated and beheaded by IS individuals.

Given that they do not pose a direct threat, does the US have a right to take unilateral action—airstrikes, ground troops, etc.—in Iraq and Syria? If so, what are the limitations on that mandate?

That is a complicated question under International law, and then there is a separate question under domestic constitutional law. For international law, the US is entitled to use force against IS targets in Iraq because we operate with the consent of the Iraqi government. The Iraqi government has said we are inviting you to use force against IS locations within Iraq. Because there is no violation of Iraqi sovereignty—they invited us there—there is no need for us to justify our use of force on Iraqi territory. In Syria, however, the situation is different. Although the Syrian government does not really have a problem with us striking IS targets in Syria they have not formally given us consent to operate in their territory because they are anxious that we will use any permission to operate in their territory as a wedge to start engaging with the Syrian government. So they have not given us permission.

The question becomes what is the international law basis for intervening against IS located in Syria. A [United Nations] Security Council authorization would certainly clear that problem, but there is no security council authorization as Russia and China would certainly veto it. So the last possibility is a virtual doctrine known as the “Unwilling or Unable doctrine.” That doctrine says that if a particular state is either unwilling or unable to stop a terrorist threat located in its territory and is using that territory as a base to launch extraterritorial attacks against third parties, then those third parties are entitled to use self defense against that terrorist organization or non-state actor even if doing so constitutes an infringement of the sovereignty of the host nation because, essentially, the host nation has proven itself unwilling or unable to deal with the problem itself. That does not give you license to completely invade the country and do whatever you want and seek regime change in the country, but it does allow actors to pierce its sovereignty enough to eliminate the threat coming from the non-state organization. I think if that doctrine is an accurate state of the law today then it would justify intervention against IS targets in Syria. The question is whether or not it is an accurate statement of the law or is in fact an aspirational statement of where we want the law to go in the future. It is incredibly controversial. It is not codified in any particular treaty. It is allegedly a part of customary international law, which some scholars accept and other scholars think is a U.S. form of casuistry that we are just sort of making up as we go along. So it is very controversial.

In terms of the domestic law question, usually the use of force authorized by the president requires some form of congressional authorization pursuant to the Constitution and also pursuant to the War Powers Resolution. In this case, the Obama administration has not sought a specific authorization from Congress regarding the launch of attacks against IS. Instead, the administration has argued that the operation is pre-authorized under the 2001 Authorization of Use of Military Force [AUMF] that congress passed right after 9/11 giving then President Bush the authority to use whatever force necessary to defeat Al Qaeda. That is a problematic argument. The Obama administration seems to be saying that because IS was, at one point in the past, affiliated with Al Qaeda, that makes IS targetable under the 9/11 AUMF. That strikes me as a very weak argument because, although IS had this relationship with Al Qaeda in the past, it has long since been severed and IS is a very distinct organization with methods and objectives distinct from Al Qaeda. In fact, Al Qaeda essentially excommunicated IS because IS was too radical even for Al Qaeda, which is strange to think about. The other argument the Obama administration is making is that the strikes are justified by the 2002 authorization of military force for the Iraq war invasion against Sadaam Hussein. That is also kind of a weak argument because that authorization expired, not explicitly, but I think the best reading of it is that it expired once the war was completed and the troops were pulled out and a new government was formed in Iraq. This is now a return to Iraq for a completely different reason and that prior authorization really does not speak to this issue. In any event, I do not see how the Iraq authorization would provide a basis for the attacks against IS in Syria. It is just a separate issue from the Iraq war.

I find all of this a little bizarre because I think that if the administration had sought authorization from congress in the week after the first beheadings by IS they would have received it, because not just Congress, but everyone in the United States was outraged by [the beheadings]. So I think that they could have received the necessary votes.

Do you think that going forward the administration should be seeking authorization? Or do you think that now, without authorization, they should treat IS as more of an insurgency and take a back seat in the conflict?

I think [the administration] needs to continue to use military force. It is very dangerous. IS is now threatening to go after major areas of Baghdad that were once considered relatively secure, mostly because the Iraqi army is in shambles right now and incapable of defending the country. So IS is a huge danger to Iraq and Syria, and the western world. I think they need to continue the military engagement but they should go to Congress and get the authorization so that there is a legal foundation for what they are doing.

Is there a concern that intervention is not really heading anywhere? Is there a worry that if we eliminate IS another organization will step in?

Defeating IS will not solve all of our problems in the region. If we successfully defeat IS—which is a big if—we would still be left with the problems still there under the surface. Those problems include keeping civil peace in Iraq, making sure that the government has a power-sharing arrangement between the various sects there, and rebuilding the Iraqi army so its able to provide domestic security. All of those problems will have to be dealt with and it is not an easy task. But it is a bridge we will have to talk about when we get there.

PART TWO of Arlan’s interview with Professor Ohlin is coming soon.