24 No. 57 JUSTICE ntroduction The international coalition against the Islamic State (ISIS)1 has raised a number of legal questions: the complex and rapidly evolving situation has scholars and politicians discussing issues such as the use of force, self-defense, and humanitarian intervention. Moreover, it overlaps with the civil war in Syria and the various attempts to bring it to an end. The severity of the conflict in Syria has prompted UN Secretary General Ban Ki Moon to call for a referral of the situation to the International Criminal Court (ICC).2 Finally, the growing number of refugees fleeing the atrocities in Syria is forcing the international community to address the consequences of the situation on their own territories. This article focuses on the legal arguments presented by states to support their airstrikes against ISIS in Iraq and Syria under international law and analyzes the consequences on international law. On August 15, 2014, in response to the rise of ISIS, the UN Security Council adopted Resolution 2170 requesting member states take "all measures as may be necessary and appropriate … to counter incitement of terrorist acts … perpetrated by individuals or entitles associated with ISIL."3 These measures led to the inclusion of ISIS on the list of terrorist sanctions created by the UN4 and the adoption of Resolution 2178, which requires states to criminalize the movement of foreign terrorist fighters associated with ISIS.5 More controversial are the airstrikes that are conducted against ISIS, both in Iraq and more recently, in Syria. The first section of this article compares the legal basis for the airstrikes in Iraq and Syria, as the consensus is much stronger for Iraq and the legality more controversial for Syria. I then make two analytical points: the first is that, especially regarding Syria, the legality of airstrikes rests on a number of justifications, which alone are legally unconvincing, but which combined are considered sufficient. The second is that the variety of legal justifications creates confusion over legal categories. I note that this confusion reflects the general trend in international law6 that views the merging of various legal areas in order to address developing and changing threats in a flexible way, but which can lead to abuses of this flexibility. Iraq and Syria: A Fragile Legality The background for discussions on the legal basis for airstrikes is the general prohibition on the use of force in international law. The UN Charter includes two exceptions to this prohibition: forcible enforcement measures within The Legality of the International Coalition against ISIS: The Fluidity of International Law* I MyriamFeinberg * This article is based on a presentation made at the University of Ontario Institute of Technology’s seminar on Legal Theory run by Professor Natalie Oman. The author would like to thank Professor Oman and Professor Jonathan Hafetz for their comments on the draft. This work was supported by the Global Trust Project – European Research Council Advanced Grant (grant no.323323). The information in this article is valid as of December 9, 2015. 1. The United States, the UN and a number of other states use the ISIL acronym (Islamic State of Iraq and the Levant), but the group is also known as the Islamic State in Iraq and Syria (ISIS), or Daesh, which are the initials in Arabic. This article will use the ISIS acronym. 2. See UN Chief urges Syria referral to International Criminal Court at opening of global meeting, FOX NEWS, Sept. 28, 2015, available at www.foxnews.com/world/2015/09/28/ un-chief-urges-syria-referral-to-international-criminal-courtat-opening-global/(last visited Nov. 16, 2015). For an analysis of the possibility to try ISIS before the ICC, see Anna M. Brennan, Prosecuting ISIL before the International Criminal Court: Challenges and Obstacles, ASIL, Sept. 17, 2015, available at www.asil.org/insights/volume/19/issue/21/ prosecuting-isil-international-criminal-court-challenges-andobstacles#_ednref3 (last visited Nov. 16, 2015). 3. S.C. Res. 2170 (2014) [on threats to international peace and security caused by terrorist acts by Al-Qaida], U.N. Doc. S/ RES/2170 (2014), §6, (Aug. 15, 2014), available at www.refworld. org/docid/53f729b84.html (last visited Nov. 16, 2015). 4. The latest addition to the sanctions list includes four British nationals, added to the UN list at the request of the UK: Maya Lester, UN sanctions 4 British nationals fighting with ISIL, Sept. 29, 2015, available at europeansanctions. com/2015/09/29/un-sanctions-4-british-nationals-fightingwith-isis-2/ (last visited Nov. 16, 2015).
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