Unwilling or Unable: Newfangled Self-Defence Against ISIS in Syria

Abstract

Focussing on a sequence of tense, era-defining moments in 2014 as world leaders struggled to comprehend and respond effectively to the dramatic rise of Islamic State forces in Syria and Iraq, this Review Essay is in part a chronicle of the readings (and indeed, on occasion, the significant mis-readings) of a diverse cast of actors seeking legal justification and irrefutable political arguments for the use of force in an escalating situation of geopolitical crisis and unspeakable atrocity. The essay provides a thoughtful, stirring reminder of the abiding value of close, critical reading in human rights and humanitarian practice.

• Introductory note by Brian Phillips, Reviews Editor, Journal of Human Rights Practice

When we founded the Journal of Human Rights Practice in 2008, it was our express intention that the the Journal’s Review Section should be an eclectic, unconventional space for commentary. Rather than just offering another space for academic opinion on new books in the human rights field, we wanted to create a forum that would allow both scholars and practitioners to reflect critically on a wide range of publications and other media. We wanted our reviewers to consider everything from non-governmental organizations (NGO) reports and UN documents to films, plays and novels that explored human rights topics freshly and imaginatively. Above all, we wanted to encourage human rights practitioners and scholars to be avid, searching, even daring readers. And it is in that spirit of creative reviewing and genre diversity that we publish the following essay by Noah Weisbord.

Among its many virtues, Noah Weisbord’s essay is a thoughtful, stirring reminder of the abiding value of close, critical reading in human rights and humanitarian practice. Weisbord’s essay exemplifies this necessary habit of reading events, blogs and other media coverage, international legal standards, government press statements, and speeches and interviews of public officials with an equal and exacting carefulness. Focussing rigorously on a sequence of tense, era-defining moments in 2014 as world leaders struggled to comprehend and respond effectively to the dramatic rise of Islamic State forces in Syria and Iraq, Weisbord’s essay is in part a chronicle of the readings (and indeed, on occasion, the significant mis-readings) of a diverse cast of actors seeking legal justification and irrefutable political arguments for the use of force in an escalating situation of geopolitical crisis and unspeakable atrocity. How might one read and interpret Article 2(4) and Article 51 of the United Nations Charter and other relevant international standards (from the 1948 Genocide Convention to the Responsibility to Protect principle to the Geneva Convention on the High Seas) for the purposes of sanctioning (or opposing) military intervention in this moment? How did a set of powerful ‘readers’—from Barack Obama and Vladimir Putin to John Kerry and Samatha Power—answer what Weisbord describes here as ‘the question of law’s place in the gathering war’?

As Weisbord notes in a discussion of the emergence in recent decades of the ‘lawfare’ debate among scholars and political and military officials, proponents of the ‘lawfare’ concept had insisted that ‘gaps and ambiguities in the law leave room for opposing interpretations’, and that ‘the deciding factor is often self-interested politics’. If this is so (and consequently, if ‘the rule of law is a myth’ in most situations of armed conflict), then strategic reading arguably becomes everything. For Weisbord, it was clear that ‘an object lesson in international law and politics was unfolding before me’. By way of response, Weisbord’s essay offers a master class in how to ‘read the readers’ and to weigh contending interpretations of relevant provisions of international law concerning self-defence and the grounds for military intervention. At the same time, Weisbord’s essay asks us to ponder afresh a series of decisive events in recent global history that should not be allowed to go unrecalled in the great rush of ‘breaking news’ to which we are subjected each day. Weisbord’s ‘re-reading’ here of key events like the Islamic State of Iraq and Syria (ISIS) capture of Mosul, the genocide against the Yazidis, and the battle for Kobani is itself a real achievement. Read on, practitioners and scholars—read widely and read well.

• Unwilling or unable: newfangled self-defence against ISIS in Syria

US President Barack Obama was in a bind. The Islamic State, a fundamentalist jihadist Sunni army, had swept into Iraq from Syria, threatened to flood Iraq’s second largest city by detonating an upstream hydroelectric dam, condemned an ancient religious minority to extermination, beheaded two American journalists on video, and seized a vast swath of the border between Turkey and Syria. The President struggled to find a legal justification to allow the USA to intervene with armed force. None of the traditional categories fit. Without a dependable legal rationale, the President risked leading the USA into another illegal war. Ruminating on his legal options from Martha’s Vineyard in the summer of 2014, the question of law’s place in the gathering war must surely have cast a pall over the President’s vacation.

Further darkening the skies was the dangerous, pervasive conceptual bombshell of Major General Charlie Dunlap.

The Major General is a slight man in his mid-70s with a dark sense of humour, a way with words, and the looks of a Yankee Machiavelli. In 2001, in a workshop at Harvard’s Carr Center for Human Rights, he argued that international law is becoming part of the problem, not the solution, for humanizing modern war. He forecast the rise of lawfare, ‘the use of law as a weapon of war’ (Dunlap 2001: 2).

Dunlap’s idea captured the American legal imagination as Obama considered his options. Dunlap had taken a powerful set of insights developed by critical legal scholars in the 1960s and 1970s civil rights, woman’s rights and anti-war movements and weaponized them. The Crits, as these scholars are known, had shaken the legal academy by arguing that the rule of law is a myth. They demonstrated that most legal rules are easily manipulated. As a result, judges and other officials interpreting the law possess hidden discretion. Since gaps and ambiguities in the law leave room for opposing interpretations, the deciding factor is often self-interested politics. They argued that the law tends to serve the interests of powerful classes entrenched in government and the judiciary. The Crits never expected their insights about the law to be plundered by the military.

Dunlap’s concern was that clever enemies of the USA would unfairly manipulate the law to subvert American and humanitarian goals, but other legal scholars saw an opportunity, not a concern. John Yoo, a top Bush administration lawyer, used legal interpretation to increase presidential power in the war on terror with initiatives that included interpreting the law to authorize torture and permit warrantless surveillance. Yoo called his memoir War by Other Means (2006). Jack Goldsmith, another influential Bush administration lawyer who justified warrantless wiretapping in times of war and argued that the USA would be more effective in fighting the war on terror if it involved congress more, left government for academia and established the popular Lawfare (no date) blog. Scholars with differing political commitments embraced the concept at a high-level symposium called ‘Lawfare!’ at Case Western University. ‘I think it [the law] can be used as a weapon’, said David Krane, the American war crimes prosecutor who indicted Sierra Leonean President Charles Taylor. ‘The power [of law] was to bring down the most destructive, disruptive individuals in West Africa’ (Krane no date). Others took aim at the concept and its deployment in various conflicts, including Israel–Palestine (Krane no date). But once the law was depicted as a partisan weapon, its spell was broken, and its authority dissipated.

Would Obama, elected to end the Bush-era abuses, vindicate the rule of law? Or had the emergency in Iraq and Syria, the temptations of American power and Dunlap’s decoupling of law and justice influenced his thinking? The rise of the Islamic State in the summer of 2014 tested Obama’s commitment to the rule of law in international affairs. Perhaps, more profoundly, the Islamic State tested international law itself, its relevance, and ultimately its claim to justice.

1. Caliph Ibrahim and the Mosul Dam

True to his campaign promise, President Obama withdrew US forces from Mosul in 2011. Mosul is Iraq’s second largest city after Baghdad, near the tomb of Jonah, the Old Testament prophet swallowed and regurgitated by the whale. By the eighth century, Mosul had become the prosperous capital of Mesopotamia, the Pearl of the North. It was the last major city to be pacified by American troops after Saddam Hussein was deposed. Today, between one-and-a-half and two million people live in Mosul, an oil hub along the Tigris River at the intersection of ancient trade routes that link Iraq, Syria and Turkey.

By late 2013, the peaceful Arab Spring demonstrations against Syria’s Bashar al-Assad had intensified into a seething civil war that energized new militant groups fighting the regime and each other. In early 2014, the Syrian civil war burst its banks and Sunni jihadists flooded across the border into Iraq. A fanatical religious group calling itself the ISIS¹ infiltrated Anbar Province in convoys of pickup trucks and seized Fallujah and Ramadi, cities the USA had struggled to win and hold in the 2003 Iraq War. When ISIS reached Mosul at 2:30 a.m. on 6 June, its 1,500 jihadists sent an estimated half-million terrified residents scattering towards Baghdad and Iraqi Kurdistan (The Economist 2014). Also fleeing for safety were the 22,000 US-trained Iraqi security forces. They shed their uniforms and their US-supplied military equipment as they retreated, a windfall of Black Hawks, Humvees, arms and ammunition for the jihadists. ISIS suicide bombers detonated an arms depot killing 11 Iraqi police officers, while others plundered the banks and released thousands of prisoners from jail. The jihadists hung and crucified captured civilian resisters as they occupied Mosul. ISIS’s black flags ascended over one occupied government building after another. Jihadists overran the Turkish consulate in Mosul and abducted the Consul General along with 48 Turkish citizens. When they arrived at Jonah’s Tomb, they detonated and destroyed it.

Slack-jawed government and military officials worldwide dropped what they were doing and zeroed in on their televisions and computers. US Secretary of State John Kerry called the Islamic State ‘an ambitious, avowed, genocidal, territorial-grabbing, caliphate-desiring quasi state with an irregular army’ (as cited in Cooper 2014a). UK Prime Minister David Cameron marvelled, ‘The brutality is staggering: beheadings, crucifixions, the gouging out of eyes, the use of rape as a weapon, the slaughter of children. All these things belong to the Dark Ages’ (as cited in Murphy and Cecil 2014). For me, following ISIS’s advance from my spruce shack in the mountains north of Montreal, it appeared as if the ethnic warfare of the 1990s and the terrorism wars of the 2000s had merged into a new behemoth. I pushed aside the book proposal I was drafting on the crime of aggression and flipped compulsively between news channels and blogs, eyes glued to anything ISIS.

A round-faced Iraqi in his 40s with the nom-de-guerre Abu Bakr al-Baghdadi led the incursion from Syria and the attack on Mosul. Until July 2014, there was little information available about al-Baghdadi, nicknamed The Invisible Sheikh. He met his top commanders masked, and before ISIS attacked Mosul, only two authenticated photos existed of al-Baghdadi. One was a mug shot of him as a ‘civilian internee’ at Camp Bucca, an American detention facility in Iraq. He had been incarcerated there, along with nine others who were to become ISIS’s top command (McCoy 2014a). ‘He was a street thug when we picked him up in 2004’, a Pentagon official told the New York Times (as cited in Arango and Schmitt 2014). ‘It’s hard to imagine we could have had a crystal ball then that would tell us he’d become head of ISIS’.

Jihadist websites spread facts and rumours about their new Sunni champion, echoed by the Western media. Al-Baghdadi was born in 1971 in Samarra, north of Baghdad. Jihadists reported that their leader was Doctor Baghdadi, a PhD from the Islamic University of Baghdad graduating in Islamic history and law. Rumours suggested he was radicalized early under Saddam Hussein, but ISIS experts note that al-Baghdadi’s advisory council includes former Iraqi generals, historic enemies of religious radicals. The Washington Post’s Terrence McCoy (2014b) suggested that al-Baghdadi may have forged a marriage of convenience with Baathists he met at Camp Bucca. The Washington Post’s David Ignatius wrote, ‘The true heir to Osama bin Laden may be ISIS leader Abu Bakr al-Baghdadi’ (as cited in McCoy 2014b). If the USA was looking for a new bin Laden, they had found him.

The Blogs lit up with conspiracy theories. One bizarre conjecture was that al-Baghdadi was an actor, a Jew named Simon Elliot sent to destabilize the region. A related theory, purportedly based on documents leaked by Edward Snowden, was that al-Baghdadi was an essential element of The Hornet’s Nest, a joint operation by the CIA, MI6 and the Mossad designed to attract the world’s most dangerous extremists to one place. The Israelis would then have the legal right to wipe them out in self-defence. A doctored picture of Senator John McCain (R-Ariz.) posing with an al-Baghdadi look-alike was posted and reposted online to substantiate the theory that the USA, through McCain, had created ISIS to overthrow Syria’s Bashar al-Assad (Gladstone 2014). Senator Rand Paul (R-Kentucky), a potential republican presidential candidate with isolationist proclivities, was sold. ‘Here’s the problem’, said Paul (as cited in Nuzzi 2014) in an interview with The Daily Beast. ‘He [McCain] did meet with ISIS, and had his picture taken, and didn’t know it was happening at the time’. In fact, McCain was posing with General Salim Idriss, a secular deserter from the Syrian military and members of the Free Syrian Army.

As fighting raged in Mosul, bloggers and pundits jostled for control of the story.

An essential motif in each narrative was the law of war. It should have come as no surprise to me that Barack Obama and Abu Bakr Baghdadi were both legal scholars by training and that many of their top advisors were shrewd lawyers as well. I recalled a lesson I learned soon after the 2003 invasion of Iraq in David Kennedy’s international law class at Harvard Law School. Law is not a gentle civilizer of nations. It is on a continuum with war, different means to the same end. Had Obama learned the same lesson? Studying at Harvard Law School in the late 1980s and early 1990s, he would certainly have been familiar with the canonical Yale Law Journal article by Robert Cover, ‘Violence and the Word’, a favourite of Professor Martha Minow’s, Obama’s mentor and mine. Cover’s (1986) insight was that ‘Neither legal interpretation nor the violence it occasions may be properly understood apart from one another’. A decision-maker, such as a judge, interprets the law and ‘somebody loses his freedom, his property, his children, even his life’ (ibid.: 1601).

In the summer and fall of 2014, searching for a viable legal justification for war, Obama tested a number of judicial interpretations against the facts on the ground. Meanwhile, al-Baghdadi was creating a legal justification for his own jihadist war.

Once ISIS had routed the Iraqi forces defending Mosul and occupied the city, al-Baghdadi shortened the group’s name to the Islamic State and expanded its ambitions. He summoned mujahedeen from around the world to join the fight and participate in the creation of a caliphate uniting Islamic peoples (Letsch 2014). Claiming to be a descendant of the Prophet Mohammed, al-Baghdadi took the title of Caliph Ibrahim. As Caliph, he had the legal authority to order jihad. He is recorded on video soon after the fall of Mosul with a verdant black beard, delivering a sermon to his caliphate. Muslims who follow his advice, he promises, ‘will conquer Rome and own the world’.

The gravity of the fall of Mosul and the self-proclaimed transformation of ISIS into a fledgling caliphate reached a pinnacle with four developments during the summer and autumn of 2014: the fall of the Mosul Dam (7 August); the siege of the Yazidi on Mount Sinjar (3–14 August); the beheading of the American journalist James Foley (posted online 19 August); and the battle for Kobani (4 October) on the Syrian/Turkish border. These events, more than any other, influenced Obama’s legal justifications for war.

The Mosul Dam, the largest dam in Iraq and the fourth largest in the Middle East, spans two miles across the Tigris River. Its reservoir holds just under three cubic miles, much of the water in Iraq, and its hydroelectric turbines provide electricity to Mosul and many surrounding towns. Its reservoir supplies drinking and irrigation water for millions of people. In 2007, the US Army Corps of Engineers noticed soil erosion under the structure. US General David Petraeus and US Ambassador Ryan Crocker warned Iraqi President Nouri Maliki, ‘A catastrophic failure of Mosul dam would result in flooding along the Tigris River all the way to Baghdad’. Petraeus and Crocker forecasted a worst-case scenario in which the dam would collapse and release a 65.5-foot-deep flood wave into Mosul and perhaps even inundate Baghdad, hundreds of miles away.

The jihadists consolidated their gains in Mosul and stormed the Mosul Dam using a blend of conventional and terrorist tactics, routing the well-trained and equipped Kurdish Peshmerga, ‘those who face death’. Earlier in the year, al-Baghdadi had taken the smaller Fallujah Dam on the Euphrates River and closed its gates, cutting water to Iraqis downstream and causing an upstream flood which submerged hundreds of homes. With the seizure of the Mosul Dam, the most formidable weapon in Iraq was in the Caliph’s hands.

2. Swallowed by the whale

Obama had been elected president on the promise that he would end George W. Bush’s forever wars in Afghanistan and Iraq. Americans were exhausted by war and by the Great Recession with its uneven recovery. Austerity was the governing theme. December 2011, Obama had withdrawn the last US troops from Iraq and planned to pull American forces from Afghanistan by 2014. But with al-Baghdadi in control of the Mosul Dam, Islamic State convoys speeding towards the US consulate in Erbil and threatening vulnerable ethnic minorities with extermination, Obama was drawn back to war and swallowed by the whale.

Obama’s first airstrikes hit the day al-Baghdadi captured the dam, but they targeted Islamic State positions elsewhere. In the evening’s televised address to the nation, Obama announced that he had brought America back to war in Iraq. In this 7 August speech, he began to gather his justifications for war. I held my breath as Obama explained that airstrikes were undertaken to protect the American consulate and personnel in Erbil from the Islamic State’s advance and, at the request of the Iraqi Government, the USA had initiated, ‘a humanitarian effort to help save thousands of Iraqi civilians who are trapped on a mountain without food and water and facing almost certain death’ (as cited by The White House 2014a). Obama made no mention of the Mosul Dam in this speech but 10 days later, he formally notified Congress and the Senate of presidentially authorized airstrikes to help retake the dam. ‘The failure of the Mosul Dam could threaten the lives of large numbers of civilians, endanger U.S. personnel and facilities, including the U.S. Embassy in Baghdad, and prevent the Iraqi government from providing critical services to the Iraqi populace’, his letter stated (as cited by The White House 2014b,c). No grand strategy was outlined in Obama’s speech or in his letter to lawmakers, only notice of an emergency response. Under the 1973 War Powers Resolution, Obama now had 60 days to convince Congress to authorize military force against ISIS for the war to be legal under domestic US law. Congressional authorization, however, would not legitimize the war under international law, which has its own independent criteria.

Indeed, on 16 August 2014, US airstrikes by manned and unmanned aircraft blasted Islamic State armoured vehicles, antiaircraft guns, personnel carriers, fighting positions and checkpoints, as Kurdish Peshmerga backed by Iraqi forces advanced on jihadists occupying the heavily booby-trapped dam. Much to the relief of the US President, the Kurds, the Iraqi security forces, and everyone living downstream, the operation was successful. The joint assault overpowered and dislodged the Islamic State fighters from the dam which reverted to Kurdish control. As the jihadists retreated, they torched three oil wells in the Ain Zala oilfield, hoping to slow the Peshmerga advance.

The successful military operation at the Mosul Dam bolstered US morale, hardened its resolve, and offered clues to a strategy to defeat the Islamic State during a period of great American disillusionment over the wars in Afghanistan and Iraq. The Islamic State’s seemingly unstoppable momentum could be reversed by an effective indigenous ground force coordinating with US bombers in the sky. A Washington Post–ABC News Poll published on 9 September found 71 per cent of Americans supporting airstrikes in Iraq now that they were a fait accompli, up from 45 per cent in June, before their effectiveness was tested (Balz and Craighill 2014). Obama’s numbers were somewhat bleaker, with the majority of those polled calling the president ‘too cautious’ (Balz and Craighill 2014). Americans wanted the strikes, and they had lost faith in their president. Citizens around the world waited anxiously to learn what larger purpose the airstrikes would serve and how Obama would justify them legally.

On the eve of 11 September, Obama delivered a muscular speech from the State Floor of the White House providing new insight into his rationale for resuming military operations in Iraq and raising the possibility of a legal justification for a war to come (The White House 2014d). Delivered steps away from the Blue Room where he had announced the death of Osama bin Laden in 2011, he offered something for everyone. For hard-nosed American patriots, Obama emphasized the threat to national security and invoked the executions of American journalists by the Islamic State. ‘We will degrade and ultimately destroy ISIL’, he pledged. In an important departure from the legal strategy of George W. Bush, Obama conceded that there was no evidence of an Islamic State plot against the USA and did not use the pre-emptive self-defence argument.

For internationalists at home and abroad, Obama promised a multilateral coalition rather than going it alone. He warned that left unchecked, the Islamic State would pose a ‘growing threat beyond that region’. This language was important legally. A ‘threat to the peace, breach of the peace, or act of aggression’ is a necessary precondition for a legally authorized peace enforcement operation under the UN Charter (United Nations 1945).

Humanitarian hawks got plenty of red meat too. Their part of the speech was staccato: ‘They kill children. They enslave, rape, and force women into marriage. They threatened a religious minority with genocide’.

And to woo the democracy-promoters, Obama promised that war fighting would be accompanied by nation-building. He tied US military aid to Iraqi progress in forming ‘an inclusive government’, tactfully avoiding the ouster of divisive, ineffective Shiite Prime Minister Nouri al-Maliki. Maliki’s sectarian policies had alienated Iraq’s Sunni population, a community Obama needed to deny Islamic State fighters safe havens in their neighbourhoods.

The most vital and legally controversial part of the speech concerned Syria. ‘I will not hesitate to take action against ISIL in Syria, as well as Iraq’, Obama vowed. Iraq had requested USA help defending itself against the Islamic State, but Syria was another matter. Without a Syrian invitation to intervene against the Islamic State, the legal justification for the use of force was problematic.

Unsurprisingly, with mid-term elections on the horizon, half of Washington blamed the President for the rise of the Islamic State. Senator John McCain, R-Arizona, a vocal critic of Obama’s campaign promise to withdraw from Iraq, gloated on CNN, ‘The fact [Obama] didn’t leave a residual force in Iraq is the reason we’re facing ISIS today’ (as cited in Hodges 2014). Former Vice President Dick Cheney and his daughter Liz published a scathing critique of the President in the Wall Street Journal. ‘President Obama is on track to securing his legacy as the man who betrayed our past and squandered our freedom’, they wrote. ‘Iraq is at risk of falling to a radical Islamic terror group and Mr. Obama is talking climate change’ (Cheney and Cheney 2014). Senate Majority Leader Harry Reid, D-Nevada, was incredulous, ‘There are people here in Congress who are taking advice from Dick Cheney’, he marvelled, ‘Dick Cheney is more responsible than anyone else for the worst foreign policy decision in the history of the country--the invasion of Iraq’ (as cited in McAuliff 2014). California Congresswoman Barbara Lee, D-California, an anti-war advocate, demanded the use of force be immediately put to congress for a vote. Even Hillary Clinton, once Obama’s Secretary of State, now a likely presidential candidate, opened fire, ‘Great nations need organizing principles, and “Don’t do stupid stuff” is not an organizing principle’ (as cited in Goldberg 2014). She believed the President had missed a crucial opportunity to build the moderate Syrian opposition into a credible fighting force, leaving ‘a big vacuum that the jihadists have now filled’ (as cited in Goldberg 2014).

Obama didn’t help his position with his response to Steve Kroft on CBS’s 60 Minutes. Kroft asked if the Islamic State’s march into Iraq had surprised him, and the President blamed his Director of National Intelligence, Jim Clapper, for ‘underestimate[ing] what had been taking place in Syria’ (as cited by CBS News 2014). In truth, Obama had dismissed or downplayed the threat. In a prickly January 2014 interview with New Yorker writer David Remnick (2014), Obama had compared ISIS to a junior varsity team. ‘If a J.V. team puts on Lakers uniforms, that doesn’t make them Kobe Bryant’, he said. Meanwhile, the President’s advisors were agitated (Sinha 2015) General Michael Flynn, director of the Defense Intelligence Agency, warned the Senate in February that ISIL ‘probably will attempt to take territory in Iraq and Syria to exhibit its strength in 2014, as demonstrated recently in Ramadi and Fallujah’ (as cited in Harris 2014). Cheney added that the President is ‘blithely unaware or indifferent … willfully blind’.

An object lesson in international law and politics was unfolding before me. I understood that Obama’s legal justification would be fundamental to how he fought the war and its outcome. Bush’s failed legal rationale for the 2003 invasion of Iraq had cost him an effective international coalition and, today, outside the USA and inside as well, Operation Iraqi Freedom can hardly be mentioned in conversation without the word ‘illegal’ attached. I was eager to see how Obama would build his case. With a mushrooming list of moral reasons to wage war against the Islamic State, all he lacked was a persuasive legal justification.

3. The law of war

The law of war is deceptively simple. Any student of international law can recite the rule. There is a blanket prohibition on the use of armed force enshrined in Article 2(4) of the UN Charter with two exceptions. The first is collective action to maintain international peace and security (UN Charter arts. 39–50). Only the UN Security Council can authorize a collective response. A textbook example is the 1990 Operation Desert Storm, in which the UN approved the use of force against Iraq after Saddam Hussein invaded and annexed Kuwait. The second exception to the prohibition is self-defence in response to an armed attack (UN Charter art. 51). The use of force by the USA in Afghanistan immediately following the 9/11 attacks is an oft-repeated example. For the use of armed force to be legal, it needs to be one of these two exceptions. Obama’s legal challenge was to explain why his war against the Islamic State was an exception to the blanket prohibition against the use of armed force.

When I learned about the law of war as a student, I was surprised by its restrictive nature. Surely, an independent exception to the prohibition on the use of force existed to have allowed an Allied rescue of Jews from World War II extermination camps. Alas, neither collective security administered then under the League of Nations treaty nor self-defence provided an exception. Nor did the UN Charter, the successor to the League Treaty after World War II. I was taught the special logic of the post-World War II law of war, designed by the victors to prevent World War III, realizing that global nuclear conflict could destroy the planet. At the signing of the Japanese surrender on the USS Missouri in 1945, General MacArthur said, ‘We have had out last chance. If we do not now devise some greater and more equitable system, Armageddon will be at our door’ (as cited by PBS no date).

The UN Charter focuses on states, not individuals or non-state groups such as ISIS. In 1945, states were the only organizations capable of the industrial-scale destruction the drafters were desperate to avert. Their priority was to prevent the great powers from interfering in each other’s domestic affairs as this could lead to military escalation. They imagined a system of peaceful institutional responses including enquiry, mediation and arbitration to facilitate the resolution of interstate disputes. The International Court of Justice was tasked with resolving judicial disputes between states to avert war.

For a person of my generation, growing up as the Cold War morphed into ethnic conflict, terrorism, and non-state warriors armed with modern technology, a law of war fixated on states seemed archaic. This preoccupation left critical gaps in the law of war and these gaps hamstrung the international legal system when the Islamic State, a state in name only, flooded into Iraq from Syria and took the Mosul Dam.

The drafters of the UN Charter had watched as the Nazis cynically confounded and delayed their adversaries by exploiting the rules of international law and diplomacy as they prepared for military domination. With Hitler’s realpolitik in mind, they envisaged an institution they believed capable of overpowering any threat to international peace: a Security Council made up of the victors of World War II. The Security Council would be the only body with the authority to authorize the use of armed force. Unless states posed a threat to international peace and security, the Council had no authority to interfere in their domestic affairs (UN Charter art. 2(7); UN Charter Chapter VII).

The USA, the UK, France, China and the Soviet Union, the most militarily powerful post-World War II states, were granted permanent seats on the Council (UN Charter art. 23). They became known as the Permanent Five or P5. The other seats—six at first, later expanded to 10—would be occupied by states elected by their peers in the UN General Assembly where every state is represented and has a vote. The elected members of the Council would occupy their seats for 2 years. The presidency would rotate monthly among the Council members in English alphabetical order. Each member of the Council would have one vote when it came to peace enforcement by the UN. Any of the Permanent Five could, however, veto the decision.

The veto created blatant inequality in a system premised on the formal equality of states. Each of the P5 countries could veto collective military action against themselves. Any member of this oligarchy could also use their veto to provide cover for an aggressive ally, making illegal any such collective peace enforcement. During the Cold War, for example, the Soviets blocked collective action in Hungary, the USA blocked action in Israel, France in Algeria, and the UK in Rhodesia. Since the creation of the UN, the USSR/Russia has used the veto 128 times, the USA 83, the UK 32, France 18 and China 10 (The Security Council Report 2013). Soviet Foreign Minister Vyacheslav Molotov’s fast and loose veto earned him the nickname ‘Mr. Veto’ from colleagues at the UN (The Security Council Report 2013).

There had been a rationale for this arrangement. The drafters of the UN Charter were careful students of history. They realized that the League of Nations had collapsed with the Axis violations of the 1930s in large part because the great powers hadn’t sufficient incentive to ensure its necessary existence. By institutionalizing the dominance of the Permanent Five, the drafters hoped to induce them to defend the international legal order.

4. Lawfare

And defend it they did, both Barak Obama and Vladimir Putin, in their own way.

In summer 2013, Obama drew his line in the sand with accumulating evidence that Syrian President Bashar al-Assad was testing chemical weapons in Damascus and Aleppo neighbourhoods. ‘[A] red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized’, he told a 20 August briefing (The White House 2012). Obama, reticent to embroil the USA in another war in the Middle East, nonetheless threatened military strikes if Assad used chemical weapons against his people. ‘[Chemical weapons] would change my calculus’, he explained.

The next day, rockets containing sarin gas were fired into the Ghouta neighbourhood of East Damascus, killing between 280 and 1,500 civilians, including many children (BBC 2013). Doctors struggled to treat scores of victims convulsing and frothing at the mouth. Shocking cell phone video footage of the victims flooded the Internet. Officials from the State Department, the Pentagon and the nation’s various intelligence agencies agreed that Assad’s forces had launched the attack. With his red line crossed, Obama began to plan targeted airstrikes in Syria to deter and punish Assad. Syrian and Russian authorities claimed it was a false flag attack by the opposition to spur the USA to intervene on their behalf. Russia threatened to veto any Security Council resolution authorizing the use of force against Syria.

Obama’s legal strategy was as crucial as his military one. It would shape the narrative and how much cooperation he would receive at home and abroad. On 31 August, a week after the Ghouta attack, he delivered a speech from the Rose Garden of the White House petitioning Congress to authorize airstrikes. UK Prime Minister David Cameron had asked his Parliament the same question days before and they had turned him down. Obama called the Ghouta massacre, ‘the worst chemical weapons attack of the 21^st century’ (The White House 2013). To uphold international law, he argued, the USA would need to violate it. ‘If we won’t enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules?’ (The White House 2013). Then the punch line: ‘I’m comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable’ (The White House 2013). The logic was Orwellian, but the President’s humanitarian intentions seemed genuine.

Putin (2013) responded to Obama’s argument for war in Syria with an op-ed in the New York Times, ‘A Plea for Caution from Russia’, explaining the rationale for the UN’s collective security system.

‘The United Nations’ founders understood that decisions affecting war and peace should happen only by consensus, and with America’s consent the veto by Security Council permanent members was enshrined in the United Nations Charter’. Writing directly to the American people, he elegantly elucidated international law governing the use of force. ‘Under current international law, force is permitted only in self-defence or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression’. Putin also weighed in on the historical debate over the reasons for the collapse of the League of Nations, blaming the collapse on flimsy enforcement, and praising the drafters of the UN Charter. ‘The profound wisdom of this has underpinned the stability of international relations for decades’. ‘The law is still the law’, Putin admonished, ‘and we must follow it whether we like it or not’. As relevant as it might have been in another context, Putin’s plea for caution was ironic because Russia had brazenly invaded Georgia in 2008 and was set to annex the Crimea in 2014. It was also sobering given Putin’s surprisingly accurate interpretation of the law of war and strenuous defence of it.

While the Obama Administration drummed up support for congressional authorization to bomb Assad’s forces in response to the Ghouta attack, Secretary of State John Kerry was raising an international coalition in Europe. Asked by a London reporter whether there was anything Assad could do or offer to prevent a military strike, Kerry answered, ‘Sure, he could turn over every single bit of his chemical weapons to the international community in the next week--turn it over, all of it without delay and allow the full and total accounting, but he isn’t about to do it and it can’t be done’ (The Guardian 2013).

State Department spokeswoman Jen Psaki scrambled to clarify. ‘Secretary Kerry was making a rhetorical argument about the impossibility and unlikelihood of Assad turning over chemical weapons he has denied he used’, she e-mailed to reporters. In what Forbes Senior Political Contributor Rick Ungar (2013) predicted might be ‘one of the greatest political moves since the days of the great Russian chess masters’, Putin and Russian Foreign Minister Sergey Lavrov picked up on Kerry’s remark and offered Obama and Assad a face-saving way out of an unwelcome military confrontation. ‘If the establishment of international control over chemical weapons in that country would allow avoiding strikes’, Lavrov proposed, ‘we will immediately start working with Damascus’.

Syrian officials jumped at the idea. So did France, the UK, the UN, and a number of lawmakers in the USA. Spokespeople from the Syrian opposition were livid. ‘Crimes against humanity cannot be absolved through political concessions, or surrendering the weapons used to commit them’, they admonished (as cited in Lynch and DeYoung 2013). Saudi Arabia, Turkey and other US partners in the region committed to the ouster of Assad felt betrayed. Obama announced he would take the Russian proposal ‘with a grain of salt’. With Russian coaxing, Assad signed the Chemical Weapons Convention and, under the scrutiny of the Organization for the Prohibition of Chemical Weapons, he surrendered vast chemical stockpiles which were destroyed at sea. At the same time, he continued to commit non-chemical atrocities against his people and make headway against the opposition.

Putin and Lavrov’s legal-diplomatic parry averted US airstrikes against Assad. It also took the wind out of the sails of a collective security response to the war in Syria and aggravated US allies in the region. In summer 2014, when the Islamic State invaded Iraq from Syria in the advance towards the Mosul Dam, Obama had lost momentum and focus. ‘We don’t have a strategy yet’, he conceded to reporters at a White House news briefing (as cited in Carter et al. 2014).

Putin’s strategy had been principally legal. He deftly used Russia’s veto in the Security Council as a shield and a sword. First, he blocked a resolution condemning his illegal invasion of the Crimea. Then, he slew a second resolution labelling the Islamic State a threat to international peace and security and authorizing the collective use of force. Eliminating collective security as a justification for war against the Islamic State severely limited Obama’s legal options.

5. Obama’s Ark and the Yazidi on Mount Sinjar

The Yazidi are one of Iraq’s ancient Kurdish minorities who mingle Christian, Islamic and Zoroastrian beliefs and traditions. Yazidi baptize their children, circumcise them, and also worship a fallen angel, Melek Tawwus. Unlike Satan in Christianity, Melek Tawwus is forgiven by God and returned to heaven. Tragically, there has been no forgiveness in Iraq for the Yazidi who for centuries have been labelled devil worshipers and targeted for extermination on dozens of occasions, including by the Ottoman Turks and Saddam Hussein.

In August 2014, the Islamic State vowed to exterminate the Yazidi. As Islamic State fighters flooded across Iraq and into the city of Sinjar, they sent upward of 150,000 Yazidi fleeing. Yazidi men and boys caught by the Islamic State were forced to convert or executed. Hundreds of Yazidi women were captured with the intention of selling them to jihadists who would then impregnate them to destroy the Yazidi bloodline. The Islamic State’s English-language digital magazine, Dabiq, featured an article called ‘The Revival of Slavery Before the Hour’, explaining the rationale. ‘One should remember that enslaving the families of the kuffar--the infidels--and taking their women as concubines is a firmly established aspect of the Shariah, or Islamic law’. Yazidi who made it to Dohuk, near Turkey, or Erbil, towards Iran, were saved. An estimated 50,000 fled to Mount Sinjar, 25,000 adults and an equal number of children. According to Yazidi legend, Mount Sinjar was the final resting place of Noah’s Arc, which settled there when the floodwaters receded after God’s storm, the storm meant to cleanse the world of corruption and violence. Those who fled to the Arc’s resting place found themselves under siege, physically depleted after their escape through the desert, and without adequate food or water.

As the Islamic State closed in on the terrified families sheltering in the mountain crags, Yazidi community leaders pled with the Iraqi Parliament, the United Nations, and the USA, anyone who would listen, to save them. Vian Dakhil, the sole Yazidi in the Iraqi Parliament, spoke passionately to her legislature managing to draw crucial attention to their plight. CNN reported Dakhil’s plea to the USA, ‘There is a collective attempt to exterminate the Yazidi people ... In the name of humanity, come to our rescue’ (as cited in Smith-Spark 2014).

Soon after her speech, Dakhil was in a Mi-17 helicopter on Mount Sinjar with Major General Majid Ahmed Saadi, a veteran Iraqi army helicopter pilot, delivering aid and evacuating Yazidi. When a terrified crowd awaiting evacuation clambered aboard the helicopter, Saadi was unable to gain altitude. The Mi-17 wobbled and crashed, killing Saadi, breaking both of Dakhil’s legs, and fracturing the skull of veteran New York Times foreign correspondent Alissa Rubin (2014), who later reported the accident. The crash brought the situation to the attention of the US Congress. Peter Galbraith (2014: 1–3), the US Diplomat who had helped reveal Saddam Hussein’s 1990s gassing of the Kurds publicized the helicopter crash in his 2014 testimony to the House Committee on Foreign Affairs and damned the attacks on the Yazidi as genocide.

The story of the Yazidi struck a nerve in the West. Historic omissions in 1990s crisis zones such as Rwanda and the Balkans in which the world failed to respond to the targeting of entire communities for extermination had finally delivered a grave lesson. Samantha Power, author of the Pulitzer Prize-winning A Problem from Hell: America and the Age of Genocide had diagnosed America’s repeated twentieth century failure to stop genocide. She was now Barak Obama’s Ambassador to the United Nations. Humanitarian hawks, including National Security Advisor Susan Rice, held key administration posts. Rice, discussing her regrets about US omissions during the Rwanda Genocide, said, ‘I swore to myself that if I ever faced such a crisis again, I would come down on the side of dramatic action, going down in flames if that was required’ (as cited in Calabresi 2011).

Flames came down, but they originated from American F/A 18s which launched laser-guided bombs on the jihadists laying siege to the Yazidi on Mount Sinjar. The Americans accompanied the bombs with welcome rations for the desperate Yazidi. The New York Times depicted the operation in an infographic: three armed vehicles destroyed, five personnel carriers, one armoured vehicle, three Humvees, one mortar, and four checkpoints. The airstrikes provided cover as the Yazidi on the North side of Mount Sinjar were evacuated or found safety in Kurdish-held safe areas. Yazidi on the precarious southern crags were unapproachable by helicopter. Numbering in the low thousands, they were left to find their own way to safety.

In his 7 August 2014 address, President Obama called the Islamic State’s siege of the Yazidi ‘a potential act of genocide’ (as cited by The White House 2014e). Galbraith (2014: 2) was more forthright, ‘what was happening to the Yaizidis was not, as the President, said a “potential act of genocide”; it was genocide’. But Obama was dealing with a war-weary nation and a mandate to end war, not revitalize it. ‘I’ve said before, the United States cannot and should not intervene every time there’s a crisis in the world’, he assuaged his audience. He reminded Americans that, unlike 2003, the Iraqi government had asked the USA for help. This intervention-by-invitation argument diluted the humanitarian justification for war, while ultimately strengthening Obama’s legal position overall.

6. ‘In the name of humanity, come to our rescue’

There were moments during Obama’s 10 September Speech, where it seemed as if he might invoke a humanitarian emergency and the controversial Responsibility to Protect (Qaddafi Regime in Libya) doctrine to justify US intervention. By calling the attacks on the Yazidi ‘a potential act of genocide’, Obama was flirting with a legal obligation under the 1948 Genocide Convention to prevent attacks and punish perpetrators. But as Samantha Power (2004) demonstrated in A Problem from Hell, US leaders perform astonishing contortions to avoid using the ‘G-Word’, lest they be obliged to ‘actually “do” something’.

The drafters of the Responsibility to Protect doctrine were primarily humanitarian hawks from middle powers. They included Australian Foreign Minister Gareth Evans, Canadian historian Michael Ignatieff and Algerian master-diplomat Mohamed Sahnoun. They were responding to a 1990s conundrum posed by UN Secretary-General Kofi Annan after the world had passively watched ethnic extremists exterminate their neighbours. ‘If humanitarian intervention is, indeed, an unacceptable assault on sovereignty’, Annan asked, ‘how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?’ The government of Canada and a number of foundations established The International Commission on Intervention and State Sovereignty and charged it with forging unity on principles and processes involved in the decision to go to war for humanitarian ends (see generally The Responsibility Project 2001).

The Responsibility to Protect was a conceptual challenge to the post-World War II international legal order in that it upended the prevalent notion that national security trumps human security. Instead of attempting to dismantle existing laws and institutions, the doctrine recast them. ‘Concepts of security must include people as well as states’, the commission wrote, acknowledging that the primary responsibility for human security lies with the state itself. If the state were unwilling or unable to protect people within its borders from large-scale loss of life due to genocide or ethnic cleansing, the international community would have a responsibility to intervene. Under the doctrine, armed force could be deployed as a last resort. The commissioners found authority for this revamped concept of sovereignty by combining a hodgepodge of legal precedents—the UN Charter, the Universal Declaration of Human Rights, the 1948 Genocide Convention, the Geneva Conventions, and the International Criminal Court Statute.

Frustrated by chronic deadlock in the Security Council, the commissioners proposed a number of alternative authorizing authorities in the extreme case of an avoidable catastrophe. They conceded that the Security Council is still the most appropriate body to authorize military intervention in cases of humanitarian emergency but demanded that the Permanent Five not use the veto to obstruct emergency operations which had majority support. In cases of deadlock in the Council such as in 1999 when Serb forces were advancing on Kosovo, the commission called upon the UN General Assembly to convene an emergency session and authorize the intervention. Alternatively, a regional or sub-regional organization could authorize the use of force, as the Economic Community of West African States did in 1990 during the Liberian War and NATO finally did in 1999 in Kosovo. The commission left open the possibility of unilateral and unauthorized use of armed force in extreme humanitarian emergencies.

The most inflammatory aspect of Responsibility to Protect, and the aspect that provoked the ire of Russia and China, was the commission’s attempt to create a new and independent exception to the blanket prohibition on the use of force. Until then, the only exceptions to this prohibition in the UN Charter were peace enforcement authorized by the Security Council and a limited right of self-defence in response to an armed attack. Even this narrow self-defence justification had been periodically exploited for self-interested ends, most recently in the 2003 US invasion of Iraq. Now, humanitarian hawks were attempting to add an even broader legal pathway to war: humanitarian intervention.

Russian and Chinese leaders struggling to suppress dissenting communities on their peripheries had nightmares that NATO warplanes would crest the horizon armed with righteous fury and a new legal writ to rescue the Chechens or the Tibetans. In preparations to high-level UN meetings at the 2005 World Summit, the Russians and the Chinese managed to stem the momentum for an amendment to the UN Charter which would include humanitarian emergency as an independent legal justification for the use of force. The World Summit Outcome endorsed the existing law of war: ‘[w]e reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security’ (United Nations General Assembly 2005).

The Russians and the Chinese slowed the evolution of the norm, but didn’t stop it. Between 2011 and 2013, humanitarian hawks managed to include the language and logic of the Responsibility to Protect in the Security Council resolutions authorizing the use of force against the Qaddafi Regime in Libya (Cotler and Genser 2011; Global Center for the Responsibility to Protect 2013). It was, however, still a resolution by the Security Council which authorized the use of force for human protection purposes, not the General Assembly or a regional body such as the Arab League. This assuaged Russia and China.

So, by August 2014, when Obama was struggling to craft his legal justification for war, Responsibility to Protect was not yet a watertight independent basis for intervention. Humanitarian hawks listening carefully to the President’s speeches could, however, detect him toying with the idea. The cynics rolled their eyes and quoted Nazi legal scholar Carl Schmitt's warning, ‘whoever invokes humanity wants to cheat’ (Schmitt 1932[2007]: 54). Schmitt maintained that, ‘When a state fights its political enemy in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent’ (Schmitt 1932). Meanwhile, the plight of communities targeted for extermination became an overarching theme in all of Obama’s speeches. Yet, without formal Security Council authorization, Responsibility to Protect could not legally justify Obama’s war against the Islamic State.

7. The beheading of James Foley by Jihadi John

James Foley’s execution was the type of provocation that could propel a superpower into war, legal or not. There was something quintessentially American about him, so much so that the attack against Foley was like an attack on America. Watching the event on YouTube, Americans began un-catching the safeties on their firearms.

Foley was like a hero from the frontier. According to Jeremy Osgood, Foley’s childhood friend, who knew him as the eldest of five rural New Hampshire children, ‘He just had this gene that didn’t know fear’.

Foley began his career with Teach for America where he worked in rough schools and prisons around the USA. After a few years, he applied for a position with United States Agency for International Development (USAID) and was offered a job assisting in Iraqi development projects. Soon, he was cloistered behind high razor-topped walls in Baghdad’s Green Zone and guarded by US-paid African mercenaries. He could hear the bombs and guns outside, but couldn’t see them. According to his co-worker, David Devoss, ‘Foley chafed under these restrictions … He wanted to understand the passions driving the conflict and meet the people whose lives had been upended by war’. Foley applied to the US military to become an embedded journalist.

When his credentials arrived, Foley left Iraq for Afghanistan to start reporting. In Afghanistan, he accumulated experience and struggled to sell articles and photographs, hoping to land a stable staff reporter position. Offered a 13-month contract as an embedded reporter with the Defense Department’s Stars and Stripes, he flew back to Iraq where he joined his younger brother, an Air Force officer. Foley worked for Stars and Stripes for just 2 months before being forced to resign. When questioned by military officials, he admitted that he had been carrying a small amount of marijuana at Kandahar Air Field during his time in Afghanistan.

Indomitable, Foley e-mailed his friend Evan Hill, who was working for Al Jazeera English, covering the uprising against Muammar Qaddafi: ‘Dude I’m trying to get into Libya’.

Within a month of entering Libya, Foley and a small group of journalists were on a bus commissioned by the Libyan rebels en route to the front lines where Qaddafi’s crumbling forces were battling the insurgents. When the bus was turned back at a checkpoint near the hotspot, Ajdabiya, he teamed up with the American journalist Clare Morgana Gillis, hitching rides in civilian cars and rebel trucks until they reached a battleground near the port city of Brega. Gillis had never been in a war zone before and Foley took her under his wing.

Foley, Gillis, Spanish photographer Manuel Varela and South African journalist Anton Hammerl were travelling in a rebel convey when they left their vehicle to interview a skittish group of teenage rebels. The rebels warned that the enemy was close. When heavily armed Qaddafi pickup trucks crested the hill, machine guns blazing, the rebels fled, leaving the journalists in the dust. Hammerl was shot and killed and the others were pinned down and captured.

Foley was accused of spying. He was moved from prison to prison, interrogated, and brought to court to face charges of entering the country without a visa and reporting without permission. After 44 days, the embattled regime released the three journalists in Tripoli. Foley received a 1-year suspended sentence for illegally entering the country.

He returned home to the USA and was reunited with his family, but soon became restless. Recalling Foley’s experience, Gillis writes, ‘Jim is impatient with checkpoints, inaction, anything that slows his forward momentum … Captivity is the state most violently opposite his nature’. Speaking to journalism students at Northwestern University upon his return from Libya, he provided some insight into his state of mind. ‘The honest fact is that when you see something really violent, it does a strange thing to you’, he said. ‘It doesn’t always repel you; it draws you closer. Feeling like you’ve survived something—it’s a strange sort of force that you are drawn back to’.

Foley’s comment to the journalism students reminded me of an unsettling insight by veteran war correspondent Chris Hedges. In War is a Force that Gives Us Meaning, Hedges (2003: 3) explains, ‘Even with its destruction and carnage it can give us what we long for in life … purpose, meaning, a reason for living’. Drawing on personal experience, he says, ‘Only when we are in the midst of conflict does the shallowness and vapidness of much of our lives become apparent’ (Hedges 2003: 3). The purpose and meaning that some find in war can intoxicate individuals as well as nations.

By 2012, Syria had become the most dangerous country in the world for reporters. Undeterred by this reality or the trauma of witnessing Hammerl’s murder or his captivity in Libya, Foley travelled to Syria, sending freelance stories to the Boston-based GlobalPost and Agence France-Presse.

On Thanksgiving Day in 2012, Foley and another journalist were e-mailing from an internet café in Binnish, Syria, in the opposition-dominated province of Idlib. The journalists and their fixer hailed a cab outside the café and drove towards the Turkish border. Foley meant to meet his friend, photojournalist Nicole Tung, awaiting him in Turkey. The driver, a punk-looking kid in his mid-20s, recounts how 6 km along the old Aleppo road they were overtaken by a Hyundai van and forced to pull over. Three fighters leapt out, shouting in Arabic, firing guns in the air and ordering the journalists to get out of the taxi. When the journalists emerged, the fighters bound them, forced them into the van and drove away. The taxi driver testified, ‘These men were on a mission to take the journalists’.

Who abducted Foley and his precise whereabouts remained a matter of contention until August 2014. At the time, the Syria opposition was courting the West to support their fight against Assad. Forbes reporter Melik Kaylan believed evidence showed, ‘that the Regime played a hand in Foley’s abduction and his later transference to ISIS’ (Kaylan 2014). Vanity Fair journalist James Harkin (2014), in Syria to investigate Foley’s disappearance, was more tentative: ‘Regime agents posing as Islamists, rebels affecting to be shabiha [Regime militia]: the more you dig for information on missing journalists, the more it’s like wading through quicksand’.

Details of Foley’s captivity remain murky. Was Foley confined in a Damascus prison run by Syrian Air Force Intelligence, or held in Aleppo by the al-Nusra Front, an al-Qaeda affiliate? Was he sold and traded? In September 2013, there were whispers that Foley was transferred to an Islamic State training camp in Northern Syria. French journalist Nicolas Henin, imprisoned with Foley for 7 months, spoke of Foley’s ‘brutal punishment’ after a failed escape. Foley was waterboarded and made to endure mock executions.

Over the Independence Day weekend, US Special Operations commandos launched a rescue near the Islamic State stronghold of Raqqa and returned empty-handed. Foley was not there when they arrived if ever. Soon after, GlobalPost president and chief executive Philip Balboni revealed that the Islamic State had demanded 100 million Euro (124 million US dollars) ransom for Foley. Much to the horror of Foley’s family, American policy was not to negotiate ransoms with terrorists for captured Americans.

On 19 August 2014, the Islamic State posts a video of Foley’s execution on YouTube. A jihadist wearing loose black clothing and a black mask stands over the kneeling journalist. He is gripping a short knife in his left hand. Foley’s captors have dressed him in baggy orange garb reminiscent of the uniforms worn by US prisoners at Abu Ghraib and Guantanamo Bay prisons. Foley and his executioner are filmed on a hill with miles of barren desert behind them.

Foley calmly delivers a prepared speech: ‘I call on my friends, family and loved ones to call on my real killers’, the US government. Then the jihadi standing behind him speaks. It is jarring to realize that he is English, with an unmistakable London accent. He addresses Obama. ‘As a government, you have been at the forefront of the aggression against the Islamic State. You have plotted against us and gone far out of your way to find reasons to interfere in our affairs’. He speaks of US air force bombs causing casualties among Muslims in Iraq. Then, reaching around Foley from behind with his right hand, the Englishman grips his chin to expose his neck and begins to cut with a sawing motion. The video breaks and flashes to an image of the journalist’s body, chest-down in the sand, with his severed head balanced on his back. Before the clip ends, Foley’s executioner is filmed behind captured American journalist Steven Sotloff who is kneeling in the sand in an orange jumpsuit. The executioner warns, ‘The life of this American citizen, Obama, depends on your next decision’.

The same man will, by the end of November 2014, behead American journalist Steven Sotloff, American aid worker Peter Kassig and British aid workers David Haines and Alan Henning.

The executioner acquires the nickname Jihadi John, after John Lennon, from his Western captives, sending the media abuzz with rumours of a cell of four British Jihadi called ‘the Beatles’, who are tasked with negotiating ransoms from the families of Western hostages. The obvious suspect was British-born amateur rapper Abdel-Majed Abdel Bary, a.k.a. Lyricist Jinn. His father, a wealthy Egyptian national and Islamic radical, was arrested in the UK for terrorist activities when Bary was 6 years old. In 2012, the UK extradited Bary Senior to the USA to face justice for the 1998 bombings of the Kenyan and Tanzanian embassies in which 224 people were killed. Twenty-three-year-old Bary Junior walked out on his mother and five siblings, travelled to Syria, and joined the Islamic State (Huffington Post 2014). In Syria, he tweeted pictures of himself in ill-fitted military fatigues and a balaclava, holding a severed head. His caption read, ‘Chillin’ with my homie or what’s left of him’ (as cited in Hall 2014). Posing in another snapshot before a vista of human heads impaled on a railing in a square, Bary tweeted, ‘It’s beautiful when you see Allah’s laws implemented’ (as cited in Hall 2014).

But new information revealed that Bary was not Foley’s executioner. Hundreds of radicalized Brits had streamed to Syria and Iraq since the outbreak of the civil war and this muddied the investigation (Rayner and Beach 2014). Jihadi John was in fact Mohammed Emwazi, a Kuwaiti-born West London computer-programming graduate nurturing a grudge after a series of demeaning encounters with airport security and British intelligence (CAGE 2015; Mekhennet et al. 2015). Emwazi, like Foley, reacted badly to captivity. Prevented from travelling to Kuwait, Emwazi began an e-mail correspondence with Asim Qureshi, research Director of CAGE, a rights group advocating for victims of the war on terror. ‘I had a job waiting for me and marriage to get started’, he e-mailed Qureshi in 2010. ‘I feel like a prisoner, only not in a cage, in London. A person imprisoned & controlled by security service men, stopping me from living my new life in my birthplace & country, Kuwait’ (Mekhennet et al. 2015). Jo Shuter, Emwazi’s grade nine teacher at Kynaston Community Academy in St John’s Wood, north London, helped fill in the picture. ‘He had adolescent issues … Particularly at that age--year nine, particularly the boys, is a time when the hormones start raging, and he had some issues with being bullied, which we dealt with’ (as cited in Morris 2015).

In early 2013, Emwazi hid in a freight truck and fled England on a Chanel ferry, making his way to Turkey, then Syria. In Syria, invigorated by his sense of injustice, Emwazi transformed himself from captive to captor and victim to bully. He became Jihadi John and joined the Beatles.

Ringo Star, drummer for the real Beatles, was disgusted, ‘It’s bullshit. What they are doing out there is against everything the Beatles stood for’ (as cited in The Beatles Bible 2014).

8. ‘Revenge is a kind of wild justice’

Obama, typically even-keel, was visibly agitated by Foley’s execution. ‘No just God would stand for what they [the Islamic State] did yesterday or every single day’, he responded from his vacation in Martha’s Vineyard. In a 24 September speech at the UN General Assembly, Obama vilified the Islamic State and called on world leaders to ‘reject the cancer of violent extremism’. Kerry, whose low-key affect might have cost him the 2004 presidential election, was wrathful: ‘ISIL and the wickedness it represents must be destroyed, and those responsible for this heinous, vicious atrocity will be held accountable’. With mid-term elections on the horizon, frantic candidates and angry pundits turned the beheading into a wedge issue. Conservative Fox News host Bill O’Reilly took the opportunity to berate his political opponents. ‘Leftwing websites, read my lips. The United States has to kill all of the ISIS people’.

Americans were furious, but fury is no legal justification for war. As Francis Bacon wrote in 1625, ‘Revenge is a kind of wild justice which the more a man’s nature runs to, the more ought law to weed it out’ (Bacon 1625). Armed reprisals during peacetime—the legitimate use of force for revenge, punishment or general deterrence—were once permissible as a form of self-help. They were prohibited during the twentieth century by the Covenant of the League of Nations and the UN Charter (Kelly 2003: 4).

Irish Legal Scholar Shane Darcy (2013) notes that hawkish academics periodically try to revive the doctrine of reprisals as a justification for the use of force. These attempts are consistently rejected by the UN Security Council, the UN General Assembly, the International Court of Justice and States themselves.²Darcy (2013) points out that before the advent of collective security, reprisals were employed predominantly by the most powerful states and tended to lead to escalation. The outdated doctrine of armed reprisals in peacetime, he concludes, is ‘a throwback to the days of unilateral enforcement, and has been rightly abandoned’.

Without the doctrine of reprisal as a lawful outlet, no matter how furious Americans were about the beheading of James Foley, they would need to look elsewhere for a legal justification for war.

9. ‘If an armed attack occurs’: traditional self-defence

Self-defence is an inherent right in international law. French international lawyers go even further and call it a ‘natural right’ (UN Charter art. 51). Though some of the drafters of the UN Charter sought to supplant all unilateral state-on-state force with a strong collective security system, the majority of states after World War II voted to retain self-defence, just in case. Nobody knew how responsive the new Security Council would be if violence erupted. Today, many wars later, self-defence is a tried and true justification for the use of armed force. If Obama could rationalize the war against the Islamic State as a defensive operation, he would have a persuasive legal basis for military operations which could attract a broad coalition and assuage the American public.

Obama was, however, governing in the shadow of Bush’s war in Iraq, a war that stretched the law of self-defence too far and eroded trust in the executive’s legal arguments. For the self-defence rationale to work this time, it needed to be beyond reproach. It would have to meet the strict criteria of Article 51 of the UN Charter.

Under Article 51, the right of self-defence is triggered ‘if an armed attack occurs’ (UN Charter). The state claiming the right must immediately report the armed attack and any defensive measures it takes to the Security Council. The defensive response must be necessary to repel the attack and it must be proportionate. Reprisals do not count as self-defence because they are not necessary. The invasion and occupation of a state in response to a small and time-limited border incursion is not proportionate. Self-defence can be individual or collective. In other words, a state that is attacked can respond unilaterally or invite other states to help defend it. Under Article 51, the right of self-defence lasts only until the Security Council ‘has taken measures necessary to maintain international peace and security’.

For Obama to successfully justify his war against the Islamic State as self-defence, he would first have to show that an armed attack against the USA had occurred. The execution of James Foley, which many Americans saw as an attack on America, would not qualify. International law sets a higher threshold. The use of force in self-defence is only permitted, where the attack has a traditional military character and, by its ‘scale and effects’ causes a significant amount of harm (Nicaragua v. United States of America 1986; Sadoff 2009: 115–19). Supplying weapons to a paramilitary group attacking the government of a state would not qualify. Invasion, bombardment, blockade, and sending armed bands to attack another state would (UNGA Res. 3314 1974). The beheading of James Foley was a tragedy and a provocation, but under international law, it was not an armed attack on America.

Nor would a potential attack by Sunni insurgents sometime in the future trigger the right of self-defence. While the USA was contending with the Islamic State, the Khorasan Group, an al-Qaeda affiliate, was raising hackles in Washington. The Khorasan Group was led by Muhsin al-Fadhli, a 33-year-old Kuwaiti who had been a young member of bin Laden’s 9/11 inner circle. Among its members, Khorasan boasted the notorious bomb maker David Drugeon, a 24-year-old French convert to Islam. Drugeon had been developing bombs designed to evade airport security made out of clothing dipped in explosive solution and concealed in personal electronics. Late September 2014, US Director of National Intelligence James Clapper claimed, ‘In terms of threat to the homeland, Khorasan may pose as much of a danger as the Islamic State’. This was an alarming assessment considering the Khorasan Group numbered around 50 fighters, while the Islamic State numbered approximately 31,500. Intelligence officials were particularly wary of the group’s ambitions to strike targets in the USA and Europe. On 26 September 2014, US Transportation Security Administration Administrator John Pistole testified on Capitol Hill that the Khorasan Group represents ‘a clear and present danger’ to passenger and cargo airlines to the USA. Pistole told a luncheon of the Washington Aero Club that the purpose of US military strikes that week was to target the group and disrupt an ‘imminent attack or attack entering the last phases of execution’.³

Whether Pistole knew it or not, he was echoing the Bush administration’s failed legal argument for the 2003 invasion of Iraq. Pre-emption was a key pillar of Bush’s rationale. President Bush addressed the 2002 West Point graduates and rejected Article 51 of the UN Charter. ‘If we wait for threats to fully materialize, we will have waited too long’. The same year, Bush’s National Security Strategy sought to expand the international law of self-defence to justify pre-emptive strikes against terrorists in possession of weapons of mass destruction, ‘even if uncertainty remains as to the time and place of the enemy’s attack’. In a 10 January 2003 interview with CNN’s Wolf Blitzer, National Security Advisor Condoleezza Rice put the argument bluntly. ‘We don’t want the smoking gun to be a mushroom cloud’.

But when no weapons of mass destruction were found in Iraq, and no imminent attack on the US homeland could be attributed to Saddam Hussein, Bush’s expansion of self-defence unravelled. Though there was no legal case brought against the USA at the International Court of Justice or any other authoritative international tribunal, most international law scholars were in agreement that the 2003 Iraq War had been manifestly illegal. Without concrete evidence establishing a specific time and place, a pre-emptive strike in Syria by Obama to forestall a future attack by the Khorasan group would be similarly illegal.

Bush’s rationale blurred the concepts of aggression and self-defence and invited abuse by powerful states searching for a pretext to invade foreign lands. His legal argument failed to persuasively justify Operation Iraqi Freedom. A more modest interpretation of international law, however, might successfully cover Operation Inherent Resolve and allow Obama to strike the jihadists before suffering an armed attack. But for Obama’s self-defence justification to succeed, the President would have to reach back to an obscure precedent arising from an 1837 armed attack on the Niagara River that sent the steamship SS Caroline, on fire, plummeting down the falls.

Canadian rebels led by Scottish-born journalist William Lyon Mackenzie battled the British to create an independent Canadian republic. In December 1837, 800–1,000 rebels fled to Navy Island, three miles upstream from the falls, accumulating men and equipment for an attack on the British. American sympathizers assisted the rebels using the SS Caroline, a 71-foot merchant steamer to transport supplies, munitions, and recruits. On the night of 29 December 1837, British and loyalist Canadian soldiers assembled a militia and crossed into the USA. They found the SS Caroline at the port in Schlosser, New York, routed the crew, lit the steamship on fire, and sent it over the falls.

The attack provoked a diplomatic row. A headline in the Buffalo Star read, ‘BRITISH OUTRAGE!! The American soil invaded and unarmed and unresisting Americans Butchered in Cold Blood’ (see Noyes 2007: 268–9). British Lieutenant Governor Francis Head wrote, ‘we would not stand with “folded arms” to allow ourselves to be surrounded and hustled out of Upper Canada by a mob’ (Noyes 2007: 268–9). Remarkably, the row was neatly resolved in a correspondence between US Secretary of State Daniel Webster and his British counterpart, Baron Ashburton. This correspondence also produced a rule of self-defence agreed upon by both the Americans and the British.

Webster and Ashburton acknowledged that self-defence is an exception to the prohibition on the use of force between states. They also agreed that it is not necessary for a state to suffer an armed attack to respond defensively. Webster’s 27 July 1842 letter to Ashburton set out the rule: ‘It will be for that Government [claiming the right] to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. Webster’s letter also established the necessity and proportionality criteria later read into Article 51 of the UN Charter. The defender must show that he ‘did nothing unreasonable or excessive; since the act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it’ (as cited in Miller no date). Webster refused to concede that the requisite necessity existed in the Caroline Case. Ashburton agreed with Webster’s formulation of the self-defence rule but was adamant that the threshold for self-defence had been met. He apologized for the invasion of US territory and the two men successfully diffused the crisis.

Legal scholars debate the status of the Caroline Case over dinner, on blogs, and in law journals. Fans of the precedent contend the Caroline Case is customary international law, that it pre-exists the UN Charter, and it cannot be supplanted. They find support for their position in its historical citations, including in the judgment of the Nuremberg Tribunal. They argue that Article 51 of the UN Charter refers to self-defence as an ‘inherent right’ and that the scope of that right was agreed upon in the 1840s correspondence between Webster and Ashburton. Their argument is that Article 51 must be interpreted in light of the Caroline Case.

Opponents respond that this ‘inherent right theory’ contradicts the language and purpose of the UN Charter. They say the language of Article 51 incontrovertibly requires an armed attack to trigger the right and that the Charter creates both a blanket prohibition on the use of force and a collective security regime to enforce it. At the time of the Caroline Case, the use of armed force was generally lawful as an instrument of national policy, the continuation of politics by other means. According to Notre Dame University legal scholar Mary Ellen O’Connell, however, ‘The UN Charter was adopted for the very purpose of creating a far wider prohibition on force than existed under treaty or custom in 1945, let alone 1842’ (O’Connell 2002: 13). Opponents of the Caroline precedent such as O’Connell maintain that the UN Charter replaced it.

The Caroline Case, though legally contentious, is nonetheless crucial to any expanded rule of self-defence. Though there are convincing arguments against it, it is at least rooted in international legal precedent, endorsed by serious legal scholars, and far more widely accepted than the Bush Doctrine. But as Webster wrote to Ashburton, if a government claims the right, it must prove that an attack was imminent, and a defensive response was necessary.

For Obama’s military strikes against the Islamic State in Syria to be justified under the Caroline precedent, he needed to produce concrete evidence of an imminent attack on the USA. Even if he had provided credible evidence, his response to the attack would be constrained by the principles of necessity and proportionality. Neither the self-defence rule in Article 51 of the UN Charter nor the Caroline Case would cover the prolonged and wide-reaching war he envisioned against the Islamic State. For that kind of war, Obama would require Security Council authorization.

Nonetheless, on Wednesday, 5 November 2014, the USA launched cruise missiles into Syria, hitting five Khorasan targets including vehicles, buildings, training areas, and bomb-making facilities. Drugeon, the French explosives master, was reportedly killed. The strikes also killed jihadists from two other groups that had been fighting against the Islamic State, groups not previously focussed on attacking the USA. Muhammad al-Julani, leader of the al-Nusra Front, warned the Americans, ‘This is what will take the battle to the heart of your land, for the Muslims will not stand as spectators watching their sons bombed and killed in their lands, while you stay safe in your lands’. CNN’s Paul Cruickshank described these ostensibly defensive strikes as ‘stirring the hornets’ nest’ (Cruickshank 2014). In December, new information surfaced leading US officials to believe Drugeon had survived (Starr 2014).

Obama was not the only one flirting with self-defence as a justification for war. The Islamic State was doing so as well. Before executing James Foley, Jihadi John proclaimed his rationale to the camera. ‘Any aggression towards the Islamic State is an aggression towards Muslims from all walks of life who have accepted the Islamic Caliphate as their leadership’, he said. ‘So any attempt by you, Obama, to deny the Muslims their rights of living in safety under the Islamic Caliphate will result in the bloodshed of your people’.

Regarding the armed attack criteria for self-defence, Jihad John appeared to be on better legal footing than Obama, whose jets were busy bombing targets in Syria. But, however, he had framed it, Jihad John’s use of force against Foley as a stand-in for America was not aimed at repelling a US attack. It was an illegal reprisal that escalated the war.

10. Swift boat justice: hot pursuit

In September 2014, as the Obama administration was crafting its legal justification for war against the Islamic State in Syria, Kerry raised a creative idea (Braun 2014). During an exchange with the Senate Foreign Relations committee, he invoked the legal doctrine of hot pursuit whereby a nation’s fleet can chase down and arrest ships that have violated its laws into international waters. ‘So, Iraq is asking us to help them’, Kerry told Senator Ben Cardin (D-Maryland). ‘And as a matter of right, if they’re being attacked from outside their country, you have a right of hot pursuit. You have a right to be able to attack those people who are attacking you as a matter of self-defense’ (as cited in Braun 2014).

John Kerry had been a swift boat commander during the Vietnam War, a sitting duck noisily motoring up and down the Bay Hap River (Tapper 2004). On 28 February 1969, Kerry and his crew were patrolling a canal hedged in by a thick mangrove when they were ambushed by a Vietcong guerilla wearing a loincloth and firing a rocket launcher (Tapper 2004). According to Del Sandusky, Kerry’s second in command, ‘Charlie would have lit us up like a Roman candle because we’re full of fuel, we’re full of ammunition’ (as cited in Tapper 2004). Protocol was to return fire and retreat, but Kerry ordered Sandusky to drive the boat directly onto the ambush and onto the beach where he leapt out in hot pursuit. As the Vietcong guerilla began to rise, rocket launcher on his shoulder, Kerry shot and killed him from 30 yards away, saving the swift boat crew. He was awarded the Silver Star for valour.

The doctrine of hot pursuit was in Kerry’s blood. He lived it, invoked it against the Islamic State, and in 2008 had cited the Geneva Convention on the High Seas (1958) containing the law when calling for sea-to-land pursuit of pirates into Somalia (United Nations 1962).

It’s a stretch to apply a maritime law specifically intended for pirates and outlaws fleeing to the high seas to Islamic State forces fleeing Iraq into Syria. ‘The doctrine of hot pursuit has little legal validity on land’, points out Political Scientist Lionel Beehner (2014), ‘unless participating countries conclude a separate treaty spelling out such rights--as the United States and Mexico did at the turn of the past century or Iraq and Turkey did during the 1980s’. Beehner is worried about a slippery slope on which self-defence is confused with hot pursuit. Russia could invoke hot pursuit in the Ukraine, China while hunting down Uigher separatists abroad, and Brazil waging its drug war in Peru. ‘As a result of this conceptual slippage’, he warns, ‘the two terms risk bleeding into a one-size-fits-all excuse to justify every kind of international intervention’ (Beehner 2014).

11. ‘Unwilling and unable’: newfangled self-defence

With no Security Council resolution authorizing the USA to confront the Islamic State, humanitarian intervention debatable, reprisals too antiquated a justification, inadequate criteria for unilateral self-defence, and hot pursuit inapplicable on land, Obama was running out of legal options. A call for help from the Iraqi government turned out to be his saving legal grace.

On 25 June 2014, after Mosul fell to the Islamic State, Mohamed Ali Alhakim, Iraq’s Permanent Representative to the United Nations, sent an official letter to the Security Council pleading for help (UN Doc. S/2014/440). He reminded the Council that in April, Iraqis had bravely ‘defied the terrorists and went to the ballot box in great numbers’ to choose a new government in accordance with the Iraqi Constitution. Soon after, the Islamic State invaded the ancient city of Mosul and advanced south to the very place Iraqis had just risked their lives to participate in the democratic process. Ambassador Alhakim described the crimes committed by the Islamic State and asked the UN to label them genocide. He was especially critical of the flood of foreign fighters and military operations coming across the border from Syria. The Ambassador called on the UN and the international community ‘to recognize the serious threat our country and the international order are facing’. He requested ‘urgent assistance’.

Contained is his plea were two potential legal justifications for war against the Islamic State.

Under the UN Charter, a threat to the international order should trigger a Security Council response, a response Russia was certain to block with its veto. But by calling on the UN and the international community to recognize the threat to his country, Ambassador Alhakim was also invoking another justification for war: collective self-defence.

Under Article 51 of the UN Charter, a state that has suffered an armed attack can ask other states for help defending itself. An invited state or coalition can legally use force providing collective self-defence as long as they stay within the bounds of Article 51. Mali, for example, under attack by Islamist forces in 2013, asked France for help defending itself. When France invoked collective self-defence under Article 51 as its legal justification for the use of force, not a single member of the Security Council objected. Together, French and Malian forces, working within international law, repelled the attack. When the legal criteria are met, collective self-defence is a solid basis for war.

The collective self-defence argument percolating in the USA in the summer of 2014 sent my alarm bells ringing. My mind flashed to Ronald Regan’s disastrous justifications for America’s use of armed force in Nicaragua in the early 1980s. The USA had a history of meddling in Nicaragua’s politics and territory, installing pro-US governments, and helping to brutally suppress peasant uprisings against their corrupt leaders. In 1972, US-backed Nicaraguan President Anastasio Somoza García’s embezzled international aid sent to ameliorate the effects of a devastating earthquake. This provoked a peasant uprising that led to the election of a leftist government. Regan retaliated by supplying weapons and training to bloodthirsty right-wing paramilitary insurgents called the Contras. Nicaragua sued the USA at the International Court of Justice.

Neighbouring El Salvador was a US collaborator. The USA argued, unsuccessfully, that Nicaragua had attacked El Salvador and that America was responding in collective self-defence. The court rejected the collective self-defence argument. There was evidence that Nicaragua had supplied arms to rebels in El Salvador but according to the judges, providing arms did not qualify as an armed attack triggering the right of self-defence. If rebel attacks within El Salvador had been imputable to Nicaragua as the USA claimed, the court judged that the US use of force in Nicaragua was not proportional. Furthermore, El Salvador’s report to the Security Council of a supposed armed attack, and its request for US assistance had come too late, years after the USA had used force against Nicaragua. US Ambassador to the UN Jeane Kirkpatrick, irritated, dismissed the ICJ as a ‘semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t’ (as cited in Posner and de Figueiredo 2005: 600).

By the end of August 2014, Obama and his advisors knew that the USA would have to enter Syria to defeat the Islamic State. The USA and its allies could not stop at the Syrian border, while jihadists flowed back and forth at will, recuperating, rearming, and resuming hostilities in Iraq.

Obama’s 10 September speech from the State Floor of the White House outlined his strategy for defeating the Islamic State and provoked another legal analysis in response from the Russians. ‘The US president has spoken directly about the possibility of strikes by the US armed forces against ISIL positions in Syria without the consent of the legitimate government’, Russian spokesman Alexander Lukashevich said. ‘This step, in the absence of a UN Security Council decision, would be an act of aggression, a gross violation of international law’ (as cited in Anishchuck and Iris 2014).

Samantha Power, Obama’s Ambassador to the United Nations, disagreed. In a 23 September letter to the Security Council, she presented a new legal justification for the use of armed force in Syria (United Nations 2014a). ‘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’, she argued (United Nations 2014b). ‘Accordingly, the United States has initiated necessary and proportionate military actions in Syria’ (as cited in UN Doc. S/2014/695). Not only would the USA be defending Iraq from within its borders, it would bring the fight to Syria since the Assad government was unwilling or unable to stop the attacks.

Power’s argument hewed closely to traditional self-defence. The Islamic State had attacked Iraq. Iraq asked the USA for help defending itself. Both Iraq and the USA had reported the attack to the Security Council. Power claimed, credibly, that military intervention was necessary and indicated that it would be proportionate. But she introduced a novel element as well.

Nothing in the UN Charter establishes the characteristics of a permissible defensive response when an autonomous non-state entity such as the Islamic State attacks from another state, which was the precise situation of Iraq vis-à-vis Syria. A troubling legal issue emerged. Should Iraq and its defensive coalition be permitted to violate Syrian sovereignty to defend itself against this non-state threat? Unsurprisingly, Russian Permanent Representative to the UN Vitaly Churkin said ‘no’. He cautioned that armed intervention without Syrian authorization, ‘will pose problems for Russia as well as for many other countries respecting international law, including China’. French Foreign Minister Laurent Fabius expressed doubts about Power’s legal argument as well (as cited in Koplowitz 2014).

The issue lit up the blogsphere. Harvard law professor Jack Goldsmith (2011) wrote, ‘If the UN Charter’s sovereignty concerns are overcome because the nation in question is unwilling or unable to address the group’s threat to the United States, and as long as the United States complies with jus in bello restrictions on targeting (distinction, proportionality, etc.), there is no further legal requirement’. This dismissive response aggravated University of London law professor Kevin Jon Heller. ‘One of the most remarkable aspects of how conservative U.S. scholars [referring to Goldsmith] approach international law’, Heller (2011) fired back, ‘is their absolute certainty that the American position on extraordinarily difficult issues is always correct’. Citing the Nicaragua Case and two other important jus ad bellum precedents, Heller argued, ‘the World Court has consistently held that Article 51 of the UN Charter limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed attacks are in some way imputable to the state whose territorial sovereignty is being violated’ (Heller 2011). He cited a major academic study by the University of Ghent legal scholar Tom Ruys that concluded, ‘the only thing that can be said about proportionate trans-border measures of self-defence against attacks by non-State actors in cases falling below the Nicaragua threshold [i.e., the state has “effective control” over the non-state actors] is that they are “not unambiguously illegal”’.

The strategic repercussions of Power’s new interpretation of the law of self-defence became apparent when UK Prime Minister David Cameron asked Parliament for authorization to use force against the Islamic State. The parliamentarians, scarred by Tony Blair’s enthusiastic participation in Bush’s 2003 ‘defensive’ war in Iraq, rejected Obama’s new interpretation of Article 51. Given Iraq’s formal call for help, in a vote of 524 to 43, they overwhelmingly authorized force against the Islamic State in Iraq but not in Syria, where there had been no such internationally accepted intervention criteria. Neither would France, Belgium, Denmark or the Netherlands send jets into Syria, although they were on board for Iraq. ‘Many European governments really are sticklers on international law rules on the use of force, particularly after the Iraq war’, noted John B. Bellinger III, Legal Advisor to the State Department during the Bush administration. ‘This may look a lot more justifiable, but they nonetheless feel the obligation to have a legal basis’ (as cited in Sengupta 2014). Bahrain, Jordan, Qatar, Saudi Arabia and the United Arab Emirates were less troubled by the collective self-defence argument, or perhaps more motivated to fight, and they launched airstrikes against the Islamic State in Syria.

12. Turkish delight: the battle for Kobani

In mid-September 2014, as part of a larger offensive in Syria, Islamic State convoys swept north along the Euphrates River through Kurdish territory towards Turkey. One Kurdish town after the other fell to the jihadists until they reached the border town of Kobani and proceeded to encircle it.

Founded just before the twentieth century, Kobani was a small settlement in the Ottoman Empire populated mainly by semi-nomadic Kurdish tribes. It lay along the Berlin–Baghdad Railway, under construction by the Germans at the turn of the century. Armenian refugees fleeing genocide by the Ottoman Turks in 1915 gathered in Kobani, along with an increasing number of local Kurds, some Arabs and a small community of Turkmen. Even while the allies seemed to be losing ground in World War I, the French and the English were plotting the division of the Ottoman Empire. The 1919 Paris Peace Conference established a Turkey/Syria border along the railway and through Kobani. Kobani became a border crossing with the majority of the population on the Syrian side, under a French mandate. After decolonization, the Syrian government of Hafez al-Assad renamed the town Ayn al-Arab, Spring of the Arabs, as part of its larger 1980s-era Arabization efforts, even though the inhabitants were mainly Kurds. During the Syrian Civil War of 2012, Kurdish militants retook the town from Hafez’s embattled son, Bashar al-Assad, and renamed it Kobani.

Now a massive army of Sunni Arab mujahedeen was closing in. The Syrian Observatory for Human Rights reported that a female commander, Mayssa Abdo, led the defenders of Kobani. ‘We can say that the Kobani resistance is in particular a women’s resistance’, Abdo told The Rojava Report, a Kurdish news outlet (TELESUR 2014). Abdo’s fighters, the YPG (the Kurdish acronym for People’s Protection Units), were the mirror image of the Islamic State. They were secular, egalitarian, and espoused a grass-roots democratic ideology. They were also an affiliate of the Kurdistan Worker’s Party (PKK), listed by Turkish, US and EU authorities as a terrorist organization. More than 30,000 people had died since the 1980s in the secessionist struggle between Turkey and the PKK. ‘There is no tragedy in Kobani’, one Turkish official told the BBC. ‘There is a war between two terrorist groups’. As Islamic State forces advanced on the vastly outnumbered Syrian Kurdish militants in Kobani, Ankara lined its tanks along the hilly border to watch the rout (Spiegel 2014).

The Islamic State laid siege to Kobani with tanks and mortars and Kurdish leaders in Turkey warned of a massacre. They begged Turkish President Recep Tayyip Erdoğan for reinforcements and swore that ongoing peace talks would collapse if the Islamic State were allowed to exterminate the Kobani Kurds. Instead, Turkish authorities killed two dozen Kurdish demonstrators who were calling for intervention and accusing Turkey of supporting the Islamic State. Protesters in London marched in solidarity with the Kurds chanting, ‘Shame on you, Turkish state’. The Islamic State continued its encirclement, attempting to cut the Kurds off from the Turkish border. UN Peace Envoy to Syria Staffan de Mistura compared the Siege of Kobani to the 1995 Siege of Srebrenica in which Serb forces massacred over 8,000 Muslim boys and men while the world watched. The UN appealed to Ankara asking that volunteers and equipment be allowed to cross the border so the Kurds could put up a fight. Ankara kept the border sealed.

Politicians and pundits were baffled by the intensity of the battle for Kobani. After allowing the Islamic State to raze so many towns along the Turkey/Syria border, why the fuss over this one? The USA was prepared to let Kobani fall. ‘As horrific as it is to watch in real time what is happening in Kobani’, Kerry told reporters, ‘you have to step back and understand the strategic objective’, which was, in the US scenario, to degrade and destroy Islamic State ‘command and control centers, the infrastructure’. Army General Lloyd Austin, hulking commander of the US military campaign against the Islamic State, warned that it was ‘highly possible that Kobani may fall’. Lexington Institute defence analyst Loren Thompson claimed, ‘Kobani is more of a symbol than a strategic asset’. Whether the battle for Kobani would symbolize America’s inherent resolve or its fraught relationship with the rule of law was the unanswered question.

With Mayssa Abdo’s depleted forces on the verge of defeat and Turkey stubbornly blocking military, medical and humanitarian aid from entering the city, the US-led Coalition sent bombers into Syria to help the Kurds. Without a Security Council resolution authorizing the use of force in Syria, or a credible individual or collective self-defence rationale to justify operations in Kobani, these strikes were on precarious legal footing. The Islamic State’s Caliph Ibrahim answered with a flood of reinforcement jihadists and the deployment of notorious Chechen commander Abu Omar al-Shishani from Iraq where he was reportedly laying siege to the Yazidi (Mora 2014). With the town widely assessed to be of dubious strategic importance and largely empty of civilians, something else was fuelling the fight other than America’s inherent resolve or Islamic State morale. For a time, Kobani became the epicentre of global competition in Syria/Iraq. Beneath the legal order established by the UN Charter was a balance of power hammered out during the Cold War with its own rules of military intervention dangerously in flux.

13. ‘A Cold War mentality’

The Americans and the Russians accused each other of having a ‘Cold War mentality’. On the Jay Leno Show, Obama, referred to Vladimir Putin and his government, saying, ‘There have been times where they slip back into Cold War thinking and a Cold War mentality’ (as cited by the White House 2014f). Russian Foreign Minister Sergei Lavrov complained on Russian Channel 5, ‘Unfortunately, the truth is that our Western partners have not managed to overcome the “Cold War” mentality and this is a systemic problem’ (as cited in Sputnik 2014). ‘What I continually say to them, and to President Putin’, Obama told Leno, ‘is that’s the past’. To which Lavrov quipped, ‘Now there’s a need for what the Americans might call a “reset”’.

The leaders were warning each other against falling back on ‘Realism’ as an organizing principle. But not everyone was critical of Realism and the Cold War mentality it engendered. Soon after the Iron Curtain fell, University of Chicago Political Scientist John Mearsheimer (1990) wrote in The Atlantic, ‘We may, however, wake up one day lamenting the loss of the order that the Cold War gave to the anarchy of international relations’. Mearsheimer, an arch-realist, argued that competition among states was inevitable and that the structure of the state system—the balance of military power between states—had safeguarded what he considered the relative peace of the Cold War. Mearsheimer and many Cold War-era realists, nuclear weapons were an unfairly maligned ‘force for peace’, reinforcing deterrence and contributing to a stable balance of power. In Mearsheimer’s worldview, it was not international law and institutions but the threat of force and mutually assured destruction that would keep everyone safe. The logic was so seductive that before he was laughed out of class, a student in my upper-year seminar proposed introducing nuclear weapons into the Congo to stabilize the conflict.

Mearsheimer and the Cold War-era realists found inspiration for their ideas in the writings of Thucydides, Machiavelli, Hobbes and the German school of Realpolitik. These forefathers of realism shunned sentimental idealism in statecraft, which they argued was almost always a pretext for power grabs by states. They acknowledged the need for political leaders who were committed to the security of their people to make traditionally immoral decisions. During the Cold War, this included supporting ruthless, at times genocidal, regimes, or militant rebels who would tip the balance of power in their favour. The American justification for equipping and backing the Contras in Nicaragua and the Taliban in Afghanistan was to confront the more significant Soviet threat and safeguard national security.

At times, the realists sounded like history’s worst villains. The English historian and diplomat E.H. Carr, a delegate at the 1919 Paris peace conference which established the League of Nations, had his hopes dashed with the onset of World War II. ‘Politics are not (as utopians pretend) a function of ethics’, he concluded, ‘but ethics of politics’. An elated Hitler embraced Carr’s perspective. ‘I shall give a propagandist cause for starting the war [with Poland]—never mind whether it be plausible or not’, he trumpeted to his top advisors. ‘The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the Right is what matters, but Victory’. After World War II, the Nuremberg tribunal cited Hitler’s realist quote in its judgment against Herman Goering, the Führer’s second in command. Bamboozled by his boss’s realism, Goering remained a realist until the end: ‘When it is the question of the interests of the nation!?—Phooey! Then morality stops!’ For these realists, war between states can be explained by state power, and legal arguments are just hot air.

Faced with the rise of the Islamic State, the realists stuck doggedly to their worldview. Unfazed by the 9/11 attacks, the global 2008 financial crisis, the West African Ebola pandemic spreading by plane into the USA and Europe, and the rise of the global jihadist movement propagating on the internet, they kept their gaze steadfastly on the state and the balance of power. In an interview with NPR’s Scott Simon, Henry Kissinger, éminence grise of American realism, dismissed the Islamic State as ‘a group of adventurers’, arguing that, ‘From a geo-strategic point of view, I consider Iran a bigger problem than ISIS’. When Simon asked the former Secretary of State about what to do about the Islamic State, Kissinger raised the execution of James Foley: ‘They have cut the throat of an American on television. This is an insult to the United States which requires that we demonstrate that this is not an act that is free. I would strongly favor a strong attack on ISIS for a period that is related to the murder of the American’.

Kissinger’s deterrence reasoning seemed out of touch in the context of a motley swarm of violently ideological jihadists mobilizing throughout the world and pouring into Syria and Iraq. The simplistic quality that made realism such an attractive organizing principle during the Cold War—that all global politics could be explained with a small number of simple concepts—was its primary weakness in the summer of 2014. Competition among states was part of the problem, but not the whole story.

The realists made some important points about the structure of the conflict but their focus on interactions among states created frustrating blind spots including completely ignoring the fate of the Yazidi on Mount Sinjar. The battle for Kobani had intensified and complicated a number of simmering international rivalries. Russia was struggling to prop up Syrian President Bashar al-Assad, a steadfast client and host to its naval facility in Tartus. The Soviets built the Tartus facility during the Cold War to supply their fleet in the Mediterranean and balance American power in the region. This created a mutually accepted status quo that the USA disrupted in 2003 when it attempted to increase its influence in the Middle East by invading Iraq and democratizing the region. Now US F/A-18 fighter jets streaked over Kobani, making themselves increasingly comfortable in Syrian airspace while showcasing the latest US weaponry.

Another power with a stake in the Battle for Kobani was Iran, Russia’s strategic partner and a stalwart American/Israeli foe. Iran relied on Syria, its closest collaborator, for convenient access to Hezbollah, its non-state proxy in Lebanon, archenemy of Israel. Iran’s Islamic Revolutionary Guards Corps, Quds Force, intelligence services, and its law enforcement personnel were all spotted helping Bashar al-Assad cling to power (Fulton et al. 2013). Iraqi Shi’a militia were also fighting alongside their Syrian ally against the Islamic State and rebel forces, including the US-backed Free Syrian Army.

Saudi Arabia, the United Arab Emirates, Qatar, Bahrain, Jordan and Turkey were alarmed by the Islamic State’s blitzkrieg, but they were also wary of Iran’s growing influence in the region and of Assad’s brutal counterinsurgency. This created conflicting impulses and accusations of double-dealing. Vice President Joe Biden, speaking to an audience at Harvard’s Kennedy School of Government, blamed his coalition allies for the rise of the Islamic State: ‘They were so determined to take down Assad and essentially have a proxy Sunni-Shi’a war, what did they do? They poured hundreds of millions of dollars and tens, thousands of tons of weapons into anyone who would fight against Assad--except that the people who were being supplied were al Nusra and al Qaeda and the extremist elements of jihadis coming from other parts of the world’ (as cited in Dickey 2014). Sir Richard Dearlove, head of British Secret Intelligence Service MI6 met with former head of Saudi Intelligence, Prince Bandar bin Sultan. Bin Sultan, who had served as Saudi Ambassador to the USA, told Dearlove, ‘The time is not far off in the Middle East, Richard, when it will be literally “God help the Shia”. More than a billion Sunnis have simply had enough of them’ (as cited in Cockburn 2014).

Turkish President Recep Tayyip Erdoğan conditioned his country’s cooperation on two demands. The first was a commitment on the part of the US-led Coalition to fight Syrian President Bashar al-Assad, the man he blamed for the collapse of the region. In Turkish foreign minister Mevlut Cavusoglu’s opinion, ‘Tyranny and massacres will remain in the region as long as the Assad regime continues’. Erdoğan’s second and related demand was that the Coalition create a buffer zone in northern Syria along Turkey’s southern border which would serve as a no-fly zone, a humanitarian haven for people fleeing the fighting, and a base to train moderates to fight the jihadists. But a Syrian buffer zone would put the US Coalition in direct conflict with Syrian President Bashar al-Assad, a brutal dictator, but one committed to defeating the Islamic State. The Kurds pointed out that a buffer zone in their lap would also allow Turkey to delay the Kurdish bid for autonomy in Northern Syria.

These vendettas paralyzed a coordinated peace enforcement response against the Islamic State, one that might have protected civilians on the ground and restored peace and security to the region. Regional rivalries and the Shi’a-Sunni sectarian rift created incentives for regional US Coalition partners to support both sides, effectively pouring gasoline into Kobani. Competition between the USA and Russia, states with populations thousands of miles away from the battle, undercut the only sensible legal response to the IS threat, a Security Council-authorized peace enforcement operation carried out by a broad-based multilateral coalition, spearheaded by regional powers.

With the preclusion of collective security under the UN Charter, Obama was left grasping at unsuitable legal doctrines and distasteful realpolitik explanations to justify his war against the Islamic State. He faced a catch-22 in Kobani, echoed in other Syrian battlegrounds. Would he justify his war against the Islamic State on untested legal bases, or on Cold War-era realpolitik? From the realpolitik standpoint, the laws of war were beside the point. But were they any less relevant than the Cold War-era worldview the realists were peddling, a reductionist, state-centred model that failed to grasp that the Islamic State was a threat in and of itself?

General Lloyd J. Austin, top American commander in the fight against the Islamic State, unencumbered by these considerations, was delighted by the fracas over Kobani. For reasons that were irrelevant to him, thousands of Islamic State fighters were massing in one spot. ‘The enemy has made a decision to make Kobani his main effort’, Austin informed reporters in a rare media appearance (as cited in Cooper 2014b). ‘And if he continues to present us with major targets, as he has done in the Kobani area, then clearly we’ll service those targets’ (as cited in Cooper 2014b).

14. Reports of the death of the law are greatly exaggerated

Thomas M. Franck was a German Jew who, at age seven, escaped Berlin with his family just before 1938’s notorious Kristallnacht. When he died in 2009, Franck was, arguably, the leading American scholar of international law (Hevesi 2009). Harvard Law Professor David Kennedy, historian of international law, said Franck ‘had been a powerful voice in just about every discussion of important international law over the last four decades’ (as cited in Hevesi 2009). According to Kennedy, ‘Tom’s battles are the good fights of American liberalism and cosmopolitanism--often waged against the U.S. foreign policy establishment’. Kennedy (2003: 397–8) described Franck as a stylist, ‘We can all hear his voice, bring to mind the elegant toasts, the masterfully ironic--and substantive--introductions, interventions … when I read him, it is impossible not to hear his wry wit, the acerbic clarity’.

In 1970, Franck published an explosive article in the American Journal of International Law called, ‘Who Killed Article 2(4)?’ He argued that the UN Charter’s prohibition on the use of force was dead because the great powers violated the prohibition with impunity and replaced the post-World War II order with one governed by archaic nineteenth-century principles of balance of power (see Franck 1970). International lawyers faced a difficult decision, according to Franck. ‘Should one help to create a new legal regime based on the conduct of those who were violating the existing order? Or should one rail against the violators, at the mortal risk of being thought cranky, “irrelevant,” or even “unrealistic”?’ By his own admission, Franck chose cranky (see Franck 2003).

Louis Henkin, son of Rabbi Yosef Eliyahu Henkin, was born in present-day Belarus a month after the start of the 1917 Communist Revolution. When he was six, Henkin’s family moved to Lower East Side Manhattan and he grew up speaking English in school, Yiddish at home. After attending Harvard Law School, Henkin clerked for Judge Learned Hand and then Felix Frankfurter. Along with Franck, Henkin became a pioneering scholar of international law, often credited with creating the field of human rights law (Grimes 2010). According to Elisa Massimino, president of Human Rights First, ‘It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou’ (Grimes 2010). Where Franck was wry and acerbic, Henkin was kind and mild, his writing lucid and graceful.

Henkin’s (1971: 47) reply to Franck’s (1970) article was typical: ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’. He ribbed Franck, whom he called ‘pathologist for the ills of the international body politic’. Henkin’s difference with Franck was that Franck judged the law’s vitality by looking only at its failures. ‘In my view, the death certificate is premature and the indictment for legicide must be redrawn to charge lesser though aggravated degrees of assault’. In reality, Henkin (1979: 47) corrected, almost all states obey almost all international law almost all of the time. Even when states violate the law, he noted, they attempt to justify the use of force in legal terms. And practically speaking, states have resorted to war less frequently and less destructively since the UN Charter was created. Henkin acknowledged that war has not been rendered obsolete. ‘What has become obsolete’, he added, ‘is the notion that nations are free to indulge it as ever, and the death of that notion is accepted in the Charter’.

When the USA invaded Iraq in 2003, both men stood their ground. For Franck, the only difference between the 1970s-era violations and the Iraq War was that the Bush administration had discarded the ‘fig leaf of legal justification’ (Franck 1970: 809). Henkin pointed out that the Bush administration had tried unsuccessfully to justify its actions in terms of international law, citing prior Security Council Resolutions and the right of self-defence (Slaughter and Powell 2010).

Now Obama was facing the troubling questions Bush had faced in the run-up to the invasion of Iraq. What role should international law play in his decision to go to war? None at all, if Franck was right and Article 2(4) was dead. But if Henkin was right, baldly violating the law might undermine the flawed-yet-resilient legal order that had made international violence less frequent and destructive since World War II.

Obama decided to make a pragmatic compromise he hoped would allow him to confront the Islamic State without jettisoning the rule of law. He tried for a UN Security Council Resolution authorizing a peace enforcement mission, but Putin insisted that Russia would veto it. Most international lawyers agreed that the humanitarian intervention justification was not yet ripe. Without an actual attack on the USA, or at least convincing evidence of an imminent attack, the traditional self-defence justification would fail and Obama would resemble George W. Bush invading Iraq in 2003. Much to the chagrin of revisionist Conservative American legal scholars, with the advent of the UN Charter, reprisals, as a legal justification for war, had gone the way of the dinosaurs. And Kerry’s hot pursuit rationale was a creative, off-kilter argument too outlandish to succeed. With the formal invitation of the Iraqi Government, Obama chose to justify the war against the Islamic State as the collective self-defence of Iraq, the most reasonable legal option.

This choice shaped the way the USA fought the war and especially Obama’s ‘Iraq First’ strategy. Though Obama’s stated rationale for the summer 2014 airstrikes was to ‘degrade and destroy ISIL’ (as cited by The White House 2014d), everyone knew this was untenable unless the jihadists were confronted in Syria as well. But confronting the Islamic State in Syria would help Assad cling to power. Accordingly, the primary focus of US airstrikes that summer was ‘to drive ISIL out of Iraq’ (Labott 2014). This military objective fit well with Obama’s legal rationale and his first airstrikes stayed safely within Iraqi borders. Airstrikes only expanded to Syria once Obama and his team settled on the collective self-defence argument. Even then, airstrikes remained defensive in nature, tailored to the threat to Iraq. According to National Security Council Spokesman Alistair Baskey, ‘[W]e and coalition partners will continue to strike at ISIL in Syria to deny them safe haven and to disrupt their ability to project power’ (as cited in Labott 2014).

Still, Obama’s legal argument wasn’t airtight. Whether or not self-defence in response to an armed attack by a non-state entity was permissible when the host state was unwilling or unable to prevent the attacks remained a controversial question in international law. Obama’s flawed legal argument undermined his political and military strategies as well. Political resistance from Russia and Iran to American military might in the Middle East was expected, but Obama encountered problems from stalwart allies such as the Europeans as well. Many states were willing to fight the Islamic State in Iraq, since legal justification for war was sound, but not in Syria, where the justification was untested. Though Coalition allies in Iraq freed up American planes to hit targets in Syria, they also undercut enthusiasm for Operation Inherent Resolve with misgivings about the legality of the mission.

As the battle for Kobani dragged on, it became clear that the USA would need to venture deeper into Syria to defeat the Islamic State. In late November 2014, on the same day Assad’s forces were bombing it, the USA attacked the Caliphate’s self-proclaimed capital of Raqqa. Though the USA and the Assad Regime traded barbs about civilian casualties, the Syrians said nothing about the legality of the US strikes which no doubt helped their cause (Naylor 2014). Tacit invitation was not an independent justification for war, but it didn’t hurt Obama’s case for airstrikes in Syria. Taken alone, none of Obama’s legal arguments were ideal. Taken together, with sufficient domestic and international support, they might just work.

Neither Franck nor Henkin’s accounts of the law properly explained Obama’s behaviour. International law wasn’t dead. It was influencing the President’s political and military strategy at every turn. But to say Obama was a dutiful law-abiding citizen didn’t capture it either. As Obama revealed in his Nobel Prize acceptance speech in Oslo in 2009, ‘I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t’ (as cited by The White House 2009). General Dunlap might have called this lawfare. Obama called his position ‘enlightened self-interest’ (as cited by The White House 2009).

In fact, Obama was behaving most like a New York corporate lawyer assessing the significance of the law for a business client, looking not only at the rules but their likely impact on his client’s business strategy (Kennedy 2006: 35). As David Kennedy (2006: 34) pointed out, Presidents and CEOs operate in the shadow of endless background rules and institutions. The questions they ask are essentially the same. ‘Who will want to regulate this transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities … to influence the rules, or to use them in new ways to achieve their strategic objective’ (Kennedy 2006: 35).

In the twenty-first century, law wasn’t dead. It had become the battlefield.

Conflict of Interest

This manuscript has not been submitted elsewhere for consideration or publication.

Footnotes

References