27 Winter 2015-2016 because, Syria had proven "unwilling or unable to prevent the use of its territory" for attacks by ISIS against Iraq, and therefore U.S. actions in Syria were justified because of a link to Iraq.36 Both the U.S. and the UK therefore use the argument of collective self-defense for Iraq, based on the "unwilling and unable" principle.37 However, there does not seem to be a clear consensus on the "unwilling and unable" doctrine, at least in international law.38 In its official letter to the UN, France did not mention the "unwilling and unable" test.39 The U.S., which also claimed individual self-defense as a justification, has used the pre-emptive self-defense argument, developed after 9/11, as well as the War on Terror paradigm: it argues that ISIS is a terrorist group affiliated with Al-Qaeda, and that this gives authority to the U.S. government to address the threat through military force, even preemptively.40 In practice, these arguments raise a number of issues on the domestic legal basis for the U.S. airstrikes41 and whether the coalition is engaged in an armed conflict with ISIS,42 leading to a confusion of legal justifications. Moreover, preemptive self-defense is still controversial under international law.43 When justifying the state’s killing of British citizens under self-defense, David Cameron stated that "there was clear evidence of the individuals in question planning and directing armed attacks against the UK. These were part of a series of actual and foiled attempts to attack the UK and our allies."44 But the targeted killings were widely criticized.45 The terrorist attacks against a Russian plane over Sinai, the attacks in Lebanon and the attacks in Paris, all in November 2015, will lend considerable basis for the self-defense argument. They have certainly led to political discussions of a wider coalition against ISIS,46 as well as to a new Security Council resolution47 and new states conducting airstrikes. Yet, whether it is collective or individual self-defense or the "unwilling/unable" test, the self-defense argument is not widely accepted,48 and in particular, the necessary threshold for armed attacks is questioned.49 In any case, there are other conditions for acting in self-defense,50 such as necessity and proportionality, which are questioned in this particular case51 and need to be further assessed. Therefore, the legal basis for airstrikes in Syria is more complex and controversial than in Iraq. The evolving situation on the ground further contributes to a confusing legal landscape. The two different situations in Iraq and Syria, and the lack of clear legal basis, illustrate the fluidity of international law, creating confusion over legal categories. The Confusion of Legal Categories and the Fluidity of International Law – A Blessing or a Curse? The legal discussion about the international coalition against ISIS reflects a more general trend in international law where the boundaries of legal categories are increasingly being challenged and it is increasingly difficult for states to justify the legality of their actions.52 As a result, they will tend to offer a number of justifications for their actions. An analysis of the French military intervention in Mali notes this trend, as it points out that France advanced three different legal arguments as basis for their actions and experts asked what the need was for 24. As early as 2011, former President Clinton stated that Assad had lost legitimacy to rule; see Clinton: Syria's Assad has lost legitimacy to rule, NBC News, July 11, 2011, available at www.nbcnews.com/id/43711672/ns/world_newsmideast_n_africa/t/clinton-syrias-assad-has-lostlegitimacy-rule/#.ViT0xaTJfi4 (last visited Nov. 16, 2015). Marc Weller further discusses the issue of ‘authority to represent’ both in Iraq and Syria, in Marc Weller, Striking ISIL: Aspects of the Law on the Use of Force, 19 ASIL March 11, 2015, available at www.asil.org/insights/volume/19/ issue/5/striking-isil-aspects-law-use-force (last visited Nov. 16, 2015). 25. Dapo Akande & Zachary Vermeer, The airstrikes against Islamic State in Iraq and the alleged prohibition on military assistance to governments in civil wars, EJIL: Talk, Feb. 2, 2015, available at www.ejiltalk.org/the-airstrikes-againstislamic-state-in-iraq-and-the-alleged-prohibition-onmilitary-assistance-to-governments-in-civil-wars/(last visited Nov. 16, 2015). 26. Islamic State: Legal justification for air strikes on Syria not even 'wafer-thin', says expert, INDEPENDENT, Sept. 14, 2014, available at www.independent.co.uk/news/uk/politics/ islamic-state-legal-justification-for-air-strikes-on-syria-noteven-wafer-thin-says-expert-9731645.html (last visited Nov. 16, 2015) and (in French) Légalité internationale d’une intervention militaire contre l’État islamique en Syrie, Sept. 17, 2014, available at dommagescivils.wordpress. com/2014/09/17/legal i te- internat ionale-duneintervention-militaire-contre-letat-islamique-en-syrie/ (last visited Nov. 16, 2015). 27. David Cameron knew UK pilots were bombing ISIS in Syria, THE GUARDIAN, July 17, 2015, available at www. theguardian.com/politics/2015/jul/17/david-cameronknew-uk-pilots-were-bombing-isis-in-syria (last visited Dec. 3, 2015). 28. Drone killing of British citizens in Syria marks major departure for UK, THE GUARDIAN, Sept. 7, 2015, available at www.theguardian.com/world/2015/sep/07/dronebritish-citizens-syria-uk-david-cameron (last visited Nov. 16, 2015).
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