29 Winter 2015-2016 is the threat of terrorism that it creates, both in the area of Iraq and Syria, and in other areas of the globe. And here, states mainly argue that they have a right to defend themselves against the threat, even if it is preemptively. The response to the second threat is the current priority of the international community, but it might impact on the realization of the first concern. The fluidity of the threat and the increasing concerns linked with terrorism mean that the response constantly needs to adapt. By producing a number of legal arguments, states, in effect, aim to keep their options open. The advantage of this policy is that the response can adapt to the threat. Resolution 2178 was criticized for the confusion that it creates between counterterrorism and the law of armed conflict,63 yet it also reflects the array of measures that need to be adopted to respond to the new threat of foreign terrorist fighters. On the one hand, the conflation of legal categories is problematic because it might come at the expense of legality: the responsibility to protect was developed to focus on the plight of victims, rather than on legal argument for self-defense. On the other hand, it can also be used and abused in order to justify military action, which would not be legal under the self-defense argument.64 There are similar risks of misuse of the selfdefense argument. For instance, Russia originally invoked self-defense of Russian citizens for its annexation of Crimea.65 Moreover, the UK based its argument regarding targeted killings of ISIS members on self-defense and this was criticized.66 Further, while these killings could potentially be legal under parts of international law, they might still violate other branches of international law, which need to be taken into account during military operations.67 The fluidity of legal categories is causing states to bend them by acting in a manner that can be rational and legitimate but that is also without a clear legal basis under international law. States must realize that this fluidity can also have unintended consequences, as the situation in Syria has the potential to escalate into an inter-state conflict, given the current dispute between Turkey and Russia.68 n Myriam Feinberg is Postdoctoral Fellow with the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa. She previously held a Postdoctoral Fellowship with the Global Trust Project at the Buchmann Faculty of Law, Tel Aviv University and was visiting Lecturer at King’s College London. 38. See Kevin J. Heller, That “Broad Consensus” for Unwilling/ Unable Just Got Less Broad, EJIL: Talk, Sept. 28, 2015, available at opiniojuris.org/2015/09/28/that-broadconsensus-for-unwillingunable-just-got-less-broad/ (last visited Dec. 3, 2015) and Jennifer Daskal, Ashley Deeks and Ryan Goodman, Strikes in Syria: The International Law Framework, JUST SECURITY, Sept. 24, 2014, available at www.justsecurity.org/15479/strikes-syria-internationallaw-framework-daskal-deeks-goodman/ (last visited Dec. 3, 2015). 39. Kevin J. Heller, France Fails to Adopt “Unwilling or Unable” in Syria, OPINIO JURIS, Oct. 11, 2015, available at opiniojuris. org/2015/10/11/france-fails-to-adopt-unwilling-or-unablein-syria/ (last visited Nov. 16, 2015). Letter available at (English translation) U.N. President of the S.C., Letter dated Sept. 9, 2015 from the Permanent Rep. of the France to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/745 (Sept. 9, 2015) available at www.un.org/ga/search/view_doc.asp?symbol=S/20 15/745&referer=https://www.google.co.il&Lang=E (last visited Nov. 16, 2015), for the original in French, see www. un.org/ga/search/view_doc.asp?symbol=S/2015/745& referer=https://www.google.co.il&Lang=F (last visited Nov. 16, 2015). 40. See Background statement from a senior U.S. administration official, provided via e-mail to The New York Times on Sept. 12, 2014, available at www.documentcloud.org/ documents/1301198-is-war-powers-theory-backgroundstatement.html#document/p1/a177334 (last visited Nov. 17, 2015). 41. The domestic basis for U.S. airstrikes focused on the question whether the President could include ISIS with the 2001 Authorization to Use Military Force, which authorizes military force against Al-Qaeda. For a summary of the legal issues discussed in the U.S., see William C. Banks, Myriam Feinberg and Daphné Richemond-Barak, An ISIL AUMF? Counterterrorism and Congressional Authorization in the United States, I-CONnect, Dec. 18, 2014, available at www.iconnectblog.com/2014/12/anisi l -aumf -counterterror ism-and-congressional - authorization-in-the-united-states/(last visited Nov. 17, 2015); Myriam Feinberg, Guest Post: 'New Battlefields, Old Laws' – Debate on the Future of the 2001 AUMF, OPINIO JURIS Sept. 28, 2014, available at opiniojuris. org/2014/09/28/guest-post-new-battlefields-old-lawsdebate-future-2001-aumf/ (last visited Nov. 17, 2015).
RkJQdWJsaXNoZXIy MjgzNzA=