Expert presents research on international law and ISIS: New and old precedents pose challenges

Erin Hausmann, Staff Writer

Michael Scharf, dean and director of the Frederick K. Cox International Law Center at Case Western Reserve School of Law, presented his research on the legal validity of American involvement in the war on ISIS on Feb. 8. This and other topics of international law were the subject of his presentation “How the War Against ISIS Changed International Law.” The public largely knows which events have occurred since the United States’ involvement in the war on ISIS and the conflict in Syria, but do they know their legal validity?

Delivered over lunch to an intimate group in Walls Lounge, Scharf encouraged the group to ask questions at any point. He expressed his enjoyment of teaching courses in a forum with a discussion-based format, but chose to deliver the afternoon’s material in lecture form.

The dean of admissions at Case Western Reserve University School of Law was also present to answer any questions about the school or admissions process to any potential law school applicants in the room.

Catherine Apostol ’20 attended the lecture, and found herself surprised at the global reach of the impact that the fight against ISIS has had on international law.

“I have been very conscious of the growing dangers of ISIS and its potential as a global threat through Obama’s presidency, but I was completely unaware of the legal repercussions that were involved with the United States’ influence in this matter,” Apostol said. “Michael Scharf’s description and analysis of these events opened my eyes to a side of the legal system relating to global safety and our country’s role in foreign affairs.”

Scharf launched into the subject matter by presenting the fight against ISIS as “the most hot-button international legal issue right now,” besides President Donald Trump’s recent executive order on immigration. He began contextualizing the issue by including a slide on the events leading up to the United States’ airstrikes against ISIS, noting that the main catalysts for global awareness of ISIS was their seizing of Mosul and Tikrit, two major cities in Iraq.

Despite the fact that the U.S. originally referred to ISIS as the “JV team” and considered it to be a “Middle Eastern problem,” Scharf noted that it quickly became obvious to the United States and the world that ISIS was a global threat when it began to target and conduct attacks on other groups in the region.

Scharf delved into the thesis of his presentation when he acknowledged that former President Barack Obama made “courageous but unlawful decisions to save people in Syria” when he began conducting airstrikes in 2014. Scharf detailed that we had “no legal rationale” to lead the campaign we did, and that it was illegal under United Nations Charter Article 2(4).

The Article, translated from legal jargon, essentially writes that a state cannot invade another country without the country’s consent. Thus, the United States violated international law.

In order to justify their actions, the United States had to explore their legal options and come up with a valid argument. Scharf tapped into his own legal counsel experience in the U.S. Department of State to explain that the United States would probably task young lawyers, typically recent law school graduates, to conduct research on past cases and precedents in order to build a sufficient defense for the administration’s actions.

Scharf identified the four arguments the United States proposed in defending its involvement in Syria, and the problems associated with each. First, the United States tried to argue their presence as an act of humanitarian intervention. The issue with using this defense however, is that it evolved from a precedent titled “R2P,” meaning “Responsibility to Protect.” R2P is easily skewed for invalid purposes, such as when Russia attempted to use it to defend its 2008 invasion of Georgia. Thus, the United Nations would not have accepted the proposed humanitarian angle for intervention.

The second proposed reasoning argued that territory in a failed state was eligible for invasion by other nations to “stamp out” the destructive forces there. However, this failed state logic would create “open season on invading other failed states in the world,” Scharf said.

The third argument, constructed and proposed by former Secretary of State John Kerry was referred to as the “Right of Hot Pursuit of Land.” This argument was quickly dismissed because its prior precedents were international disasters, such as the 1917 manhunt for Pancho Villa and a 1967 disaster in Vietnam that proved destructive for neighboring countries via the United States’ actions.

The final proposed argument, “Self-Defense against non-State Actors is permissible if the host State has been unwilling or unable to eliminate the threat,” culminated in the creation of a United Nations resolution, which confirmed the right to use force in self-defense against ISIS. Resolution 2249 was confirmed on Nov. 20, 2015 in response to the deadly ISIS attacks in Paris that month, along with the ISIS downing of a Russian jetliner.

Scharf cautioned of more troubled legal waters regarding the fight against ISIS in coming years due to the “law of unintended consequences” that occurs with the introduction of new international law. It essentially describes the potential for fallout and misuse of the law as future precedent.

To wrap up his presentation and appeal to the potential and interested applicants present, Scharf began a mini presentation on the Case Western University School of Law, specifically highlighting the “experiential education” students receive via participating in real life pro-bono clinics and a new intellectual property venture clinic.

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