ISIS Air Strikes Legal Analysis

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Islamic State in Iraq and Syria (ISIS) by Silje Holm Emilsen, 1/17/2016
I. Abstract
This thesis aims to identify whether the US-led air strikes in Syria and Iraq are legal. It
will provide a brief introduction on the background of ISIS. It will examine to what extent
the right of self-defense permits States to launch military operations against other States.
Based on International Humanitarian Law, it will analyze whether this conflict can be
considered to be genocide or an ethnic cleansing. It will classify the conflict and whether it
can be considered to be a humanitarian intervention. In addition, it will discuss if the
International Community has the Responsibility to Protect (R2P) the population in Syria
and Iraq. Based on international law, it will examine if ISIS is considered to be a
legitimate target. Additionally, it will discuss the moral, legal and policy considerations of
the US-led air strikes. Furthermore, it will explore the status of the Islamic State in Iraq
and Syria fighters if they are captured by the United States.
II. Introduction
ISIS, also known as the Islamic State in Iraq and The Levant and Islamic State, is a group
that is trying to turn all areas of Syria and Iraq into Islamic States. It rules by Sharia Law
and is especially targeting the Sunni areas of Syria and Iraq. The group was founded in
2003 as a reaction to the British and American invasion and occupation in Iraq. The
United States pulled their military forces out of Iraq in 2011. ISIS was considered to be a
part of the Al Qaeda until February 2014, but after a conflict with another terrorist
organization in Syria called Al-Nusra, the Al Qaeda decided to cut off all support to ISIS.1
While ISIS is considered to be both a military and terrorist organization, they have gained
access to important areas where they have established their own Government institutions
and have delivered aid and provided security personnel. In the summer of 2014 they
gained control over the Mosul Dam in Iraq, which is considered to be the most important
economic resource in Iraq. (more than oil? What is your source?) The very next day (after
what date? You just say “summer”), the United States launched targeting killings of ISIS
1 Den islamske staten (IS). (2014, October 1). Retrieved November 2, 2014, from
http://www.globalis.no/Konflikter/Den-islamske-staten-IS

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members and targets, and the Iraqi/Kurdish military forces were soon able to gain back the
access of the Mosul Dam.
When it comes to ideology, ISIS has a self-proclaimed status as a Caliphate. Through
history, all the Islamic Empires have been considered caliphates and have been controlled
by a Caliph, the successor of the Prophet Mohammed. A Caliph is considered to have both
political and religious power and ISIS claims to have the legitimacy of a caliphate based
on their military success. 2 This extreme ideology might be important to explain the brutal
violence performed by the members of ISIS, since power and military victories are
considered to be the ultimate way to receive God’s recognition based on Sharia Law.
Targeted killings were adopted by the Bush administration after 9/11 as a way to
pursue those who were responsible for the terrorist attacks. The Bush administration
launched air strikes in Afghanistan, Iraq, Pakistan and Somalia, while the Obama
administration, since 2009, have launched air strikes in Afghanistan, Iraq, Pakistan,
Somalia, Yemen, Libya and Syria, according to the Bureau of Investigative Journalism. 3
Over the past 5 years, the United States and the United Kingdom have launched more than
1,000 drone strikes in Afghanistan, Libya and Iraq, targeting both the Al-Qaeda and the
Taliban. 4 These targeted killings are being employed by States and are an act of lethal
force to eliminate specific individuals.
III. International Humanitarian Law
International Humanitarian Law is an aspect of public international law concerning Jus Ad
Bellum, which is the acceptable justifications to engage in war and Jus in Bello, the limits
to acceptable wartime conduct. Jus Ad Bellum is a set of criteria that is limiting the
justifiable reasons for a country to use force against another. While Jus Ad Bellum is set to
determine whether entering into war is permissible, Jus in Bello comes into effect once a
2 Becker, K. (2014, September 1). The World According to ISIS: The Terrorist Army's Dreams for Islamic
Caliphate Revealed in One Map. Retrieved November 2, 2014, available at:
http://www.ijreview.com/2014/09/173496-world-according-isis-terrorist-armys-dreams-islamic-caliphate-
revealed-one-map/
3 The Bush Years: Pakistan strikes 2004 – 2009 | The Bureau of Investigative Journalism. (2011, August 10).
Retrieved November 3, 2014, available at: http://www.thebureauinvestigates.com/2011/08/10/the-bush-years-
2004-2009/
4 Masters,J. (Ed.). (2013, May 23). Targeted killings. Retrieved November 4, 2014, available at:
http://www.cfr.org/counterterrorism/targeted-killings/p9627

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war has begun. The main purpose is to protect civilians and prisoners, the wounded and
sick and persons that are no longer taking part in hostilities.
The United Nations Charter under Article 2(4) states that States are to “..refrain in
their international relations from the threat or use of force”.5 The exception is found in
Article 51, which states that “Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain or
restore international peace and security”. 6
Even when participating in war, the International Humanitarian Law applies and this
imposes obligations on those engaged in armed conflict. While no individuals have human
rights obligations against someone else, and it is considered to be on a state-level, IHL is
on an individual level and therefore everyone are bound by these laws. All parties involved
must respect the law and they have an obligation to ensure respect as well. The four basic
principles of IHL are military necessity, humanity, distinction and proportionality. Military
necessity is a principle of authority: the authority to use force to accomplish strategic and
national security goals. The principle of humanity is the principle of unnecessary
suffering: the infliction of suffering not necessary for legitimate military purposes are
forbidden. Distinction is aimed at identifying who and what can be targeted in a war, while
proportionality is that the expected civilian casualties cannot be excessive in relation to the
anticipated military advantage that would be gained from an attack. By targeting specific
individuals, the proportionality of the civilian deaths must be measured. When launching
air strikes, it can be difficult both to make a distinction and also how many civilian
casualties that are to be expected. A high percentage of the air strikes that are being
5 A/RES/42/22. Declaration on the enhancement of the effectiveness of the principle of refraining from the threat
or use of force in international relations. (1987, November 18). Retrieved November 5, 2014, available at:
http://www.un.org/documents/ga/res/42/a42r022.htm
6 Burroughs, J. (2002, October 2). The U.N. Charter and the Use of Force Against Iraq. Retrieved November 8,
2014, available at: http://www.wslfweb.org/docs/iraqstatemt.htm

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launched in Iraq and Syria, are launched at night and this is when the proportionality turns
into an even bigger problem. Buildings that are under surveillance during the day and
might show little to no civilian activity, might be a building where families seek refugee
during the night. Another aspect is that there is a risk that some of the individuals being
targeted know that they are being targeted, and therefor hide in areas with a large civilian
population, where no civilian casualties can be avoided when launching an attack. The
principle of humanity should come into consideration, because drone surveillance and air
strikes cause unnecessary suffering to the civilian population. Direct attacks on civilians
serve no military purpose and can be considered to be a breach on international
humanitarian law.7 Targeted killings can also be considered extrajudicial killings based on
the fact that they do not give the victims a chance to defend themselves and the perpetrator
remains unidentified to the people on the ground.
IV. Genocide and ethnic cleansing
The international legal definition of genocide is found in Article II and Article III of the
1948 Convention of the Prevention and Punishment of Genocide. Article II states that
there are two elements of genocide, the first is the mental element which says “intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such (a)
Killing members of the group; (b) causing serious bodily or mental harm to members of
the group; (c) deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part; (d) imposing measures intended to
prevent births within the group; (e) forcibly transferring children of the group to another
group”. The next element is the physical element that includes the five acts of genocide
described in Article II. Article III describes five punishable forms of genocide; genocide,
incitement, conspiracy, attempt and complicity. This means that if the perpetrators have
the intent to commit or commit acts intended to destroy one of the following, part of the
group or the group as a whole, it is genocide; (a) a national group – individuals whose
identity is based on country of origin or nationality; (b) an ethnical group whose identity is
based on common cultural traditions, language or heritage; (c) a racial group – based on
7 . L. (2013). Basic principles. In International law and armed conflict (2013 ed., pp. 36-51). New York City:
Wolters Kluwer Law & Business.

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physical characteristics and (d) a religious group who share common religious creeds,
beliefs, doctrines, practices or rituals.8 ISIS has been deliberately targeting religious
minority groups such as Christians, in a pursuit of turning Syria and Iraq into States only
for the Muslim majority. The executions, beheadings and crucifixion of Christians may
amount to genocide and fit within the definition of both Article II and III of the 1948
Convention of the Prevention and Punishment of Genocide. In Iraq, ISIS has targeted a
minority religious group called Yazidis. The Yazidi community is one of the oldest
communities in Iraq and their religion is based on a mix of Christianity, Islam and
Zoroastrianism. ISIS considers the Yazidis to be “devil worshippers” and has been
carrying out executions on a large scale in the community.9 In addition to this, ISIS has
abducted thousands of Yazidi women and sold them at markets in both Syria and Iraq,
mainly to encourage men to join ISIS.10 By targeting, killing, causing bodily and mental
harm to members of the community and deliberately inflicting on the group conditions of
life to bring about its physical destruction of Yazidis, it fits within the definition of
genocide and it can therefore be argued that ISIS has committed genocide both in Syria
and Iraq.
The term ethnic cleansing has not been codified in international law, but has been
commonly used in discussions of conflicts and genocide. The United Nations Special
Rapporteur Mazowiecki in 1992 defined ethnic cleansing as “...ethnic cleansing may be
equated with the systematic purge of the civilian population on ethnic criteria, with the
view to forcing it to abandon the territories where it lives”. The U.N commission of
experts defined it as “..rendering an area ethnically homogenous by using force and
intimidation to remove persons of given groups from an area”. Lastly, Andrew Bell-
Fialkoff defined it as “..can be understood as the expulsion of an ‘undesirable’ population
from a given territory due to religious or ethnic discrimination, political, strategic or
8 H. Stanton,G. (2014, January 1). Genocide Watch. Retrieved November 6, 2014, available at:
http://www.genocidewatch.org/genocide/whatisit.html
9 Who are the Yazidis? (2014, August 7). Retrieved November 11, 2014, available at:
http://www.bbc.com/news/blogs-magazine-monitor-28686607
10 Begikhani, N. (2014, October 30). Why ISIS's treatment of Yazidi women must be treated as genocide.
Retrieved November 6, 2014, available at: http://www.cnn.com/2014/10/30/opinion/isis-yazidi-women-genocide/

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ideological considerations, or a combination of these”. 11 Given that these definitions are
correct, ISIS can be considered to have carried out ethnic cleansing in both Syria and Iraq,
both based on the killings and on the forced displacement of persons.
V. Classification of the conflict
International humanitarian law distinguishes between two types of armed conflict;
international armed conflict and non-international armed conflict.
i). According to the Geneva Convention, Common Article 2 of 1949, an international
armed conflict is considered to be between two or more States and arises when at least one
of the Parties involved uses armed force against another State. Any occupation, either total
or partial, by military forces is considered to be an international armed conflict and the
laws of armed conflict (LOAC) applies.12
ii). A non-international armed conflict is between non-governmental armed groups and
governmental forces. Under the Geneva Convention, Common Article 3 of 1949, non-
international armed conflicts are “armed conflicts that are non-international in nature
occurring in one of the High contracting parties”. 13 Common Article 3 applies in all
situations that could constitute non-international armed conflict and is the primary measure
of the existence of a non-international armed conflict.14 Common Article 3 sets a
minimum threshold for the existence of armed conflict and each party to the conflict is
bound to apply to certain provisions, such as persons that are not taking an active part in
the hostilities, the wounded and sick and persons in detention shall be treated humanely.
Violence to life and person, cruel treatment, torture, the taking of hostages, humiliating
and degrading treatment and executions are prohibited at any time and any place during
the conflict.15
11 ETHNIC CLEANSING: Israeli Practices. (2007, February 1). Retrieved November 8, 2014, available at:
http://www.israellawresourcecenter.org/internationallaw/studyguides/sgil3l.htm
12 Introduction to the law of armed conflict. (2002, June 1). Retrieved November 14, 2014, available at:
https://www.icrc.org/eng/assets/files/other/law1_final.pdf
13 C. Chelimo, G. (2011, January 1). Defining Armed Conflict in International Humanitarian Law. Retrieved
November 9, 2014, available at: http://www.studentpulse.com/articles/508/defining-armed-conflict-in-
international-humanitarian-law
14 K.Blank, L., & P. Noone, G. (2013). Foundations.In International law and armed conflict (2013 ed., p. 86).
New York City: Wolters Kluwer Law & Business
15 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners
of War (Third Geneva Convention),12 August 1949, 75 UNTS 135, available at:

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If the non-international armed conflict is not considered to be within the meaning of
Common Article 3, it can fall within the definition provided by Article 1 of the Additional
Protocol II, which states that “This Protocol, which develops and supplements Article 3
common to the Geneva Conventions of 12 August 1949 without modifying its existing
conditions of application, shall apply to all armed conflicts which are not covered by
Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I) and
which take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol”. 16
iii). ISIS is, as mentioned above, considered to be a terrorist organization. These kinds
of terrorist activities do not necessarily constitute armed conflict between States, even if
there is an international dimension to some extent. The counter-terrorism actions
performed by the Government in Iraq and Syria are within their territories and might not
bring them within scope of application of the provisions of international armed conflict. A
fundamental problem with counter-terrorism operations is that while international
humanitarian law states that attacks must be directed towards the opposing group or
military force, the terrorist organizations sometimes specifically target civilians and in
counter-terrorism operations it can be difficult to distinguish the terrorists from the
civilians based merely on the fact that most terrorist organizations are not composed as
defined military forces. 17
The United States has expressed concern about the principle of viewing terrorism
within the laws of war framework. The laws of war constitute rights and duties and by
referring to this framework, it can imply a degree of moral acceptance of the right of a
http://www.refworld.org/docid/3ae6b36c8.html [accessed 14 November 2014]
16International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of12
August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June
1977, 1125 UNTS 609, available at: http://www.refworld.org/docid/3ae6b37f40.html [accessed 11 November
2014]
17Roberts, A. (2002, April 1). Counter-terrorism, armed force and the laws of war. Retrieved November 12,
2014, (p. 11), available at: https://www.aclu.org/files/projects/foiasearch/pdf/DOS000590.pdf.

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terrorist organization to resort to violence, targeting civilians and military forces. 18
Another concern raised by the United States was that by applying laws-of-war, they would
show an unwanted recognition of the terrorist organization. Though it may be proven
difficult to apply a legal framework when dealing with terrorist activity, the importance of
legal restraints is high. Both in Lebanon and Afghanistan there were instances where
prisoners of war were subjected to degrading mistreatment and torture due to lack of basic
legal constraints.
While the conflicts in Syria and Iraq are to be considered non-international armed
conflict, it can be argued that it constitutes an international armed conflict within the
definition in LOAC, based on the United States intervention. Ever since 9/11, the United
States has claimed that it is engaged in an armed conflict with terrorist groups, whether it
is the Al-Qaeda or any other terrorist movement. The Authorization for Use of Military
Force of September 18, 2001, states that “the President is authorized to use all necessary
and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or
persons”. 19 Based on this targeting and detention policy of the United States, and that ISIS
is considered to be a threat to the United States and/or citizens of the United States, the
United States approach in the war of terror is consistent with LOAC and therefore it can be
reasoned that it constitutes as an international armed conflict under the definition of
international armed conflict as per understood in LOAC. Moreover, the civil war in Syria
between Assad’s Government forces and the rebel forces, made it possible for ISIS to rise
in Syria. ISIS capitalized on the civil war and the tension between the groups, but this was
considered to be a non-international armed conflict. When ISIS pushed into Iraq and tried
to take over the Mosul Dam, the International community woke up. By targeting Iraqi
government infrastructure, they transformed the conflict into an international armed
conflict, where international humanitarian law applies.
18 Roberts, A. (2002, April 1). Counter-terrorism, armed force and the laws of war. Retrieved November 12,
2014, (p. 12), available at: https://www.aclu.org/files/projects/foiasearch/pdf/DOS000590.pdf.

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VI. Responsibility to protect (R2P) and humanitarian intervention
R2P refers to the obligation of States towards their own population and any other
population that is at risk of genocide, war crimes, ethnic cleansing and crimes against
humanity. Under the 2001 report of the International Commission on Intervention and
State Sovereignty, they laid the groundwork and set the three pillars that have become
what we view as R2P today. Pillar one sets the standard of every governments
responsibility to protect its own population, while pillar two sets the standard of the
international community’s responsibility to assist and encourage other States in meeting
the responsibilities mentioned in pillar one. Pillar three states that if a State is unable to
protect its own population, the international community can take appropriate and
collective action in accordance to the United Nations Charter. 20 In the 2005 World
Summit, the United Nations general assembly adopted this report and added paragraph
138,139 and 140 to the World Summit Outcome Document. Following this, the United
Nations Secretary-General released a report on R2P and in 2009 the General Assembly
passed a consensus resolution, A/RES/63/308, based on this report.
Syria has been in a civil war for more than 3 years, between Assad’s Government
forces and the rebel forces. Throughout this civil war, Assad has failed to uphold the R2P
doctrine. He has been unable to protect the population in Syria and by using cluster
munitions and chemical weapons he has committed war crimes. By targeting the civilian
population, and subjected them to arbitrary detention and torture, he has committed crimes
against humanity and should be held accountable for his actions. According to the General
Assembly Resolution, the United Nations Security Council tried to act to stop such abuses
and to refer Assad to the International Criminal Court. China and Russia blocked this
referral to the ICC and no intervention measures were taken. This can be considered an
ongoing R2P crisis and the international community has failed to live up to its obligations
set by the General Assembly Resolution. With the rise of ISIS in Syria, the Syrian
population has been targeted both as means of the civil war, and then later targeted by
ISIS. The failure of the International Community to protect the population in Syria has had
20 About R2P. (2014, January 1). Retrieved November 15, 2014, available at:
http://www.globalr2p.org/about_r2p

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fatal consequences for the population. While civilians always suffer, international
humanitarian laws are supposed to mitigate that suffering and while ISIS continues to
challenge the international community, measures should have been taken to end the
suffering and apply the laws of war.
When ISIS pushed their way into Iraq and started the widespread fighting with the
Iraqi Security Forces, the number of civilian casualties and the displacement of the
population reached a high. The violations committed by ISIS amount to crimes against
humanity, slavery, abductions and targeted killings. In August 2014, the UN called upon
the international community to help prevent a possible genocide and mass atrocities in
Iraq. After a request from the Iraqi Government in August, the United States started
launching attacks against ISIS to prevent genocide from happening. ISIS has
systematically attacked religious minorities throughout Iraq, who face an ongoing risk of
mass atrocities. After the United States launched their first attacks, France, Denmark,
Australia, Belgium, Canada and the United Kingdom have all joined operations against
ISIS in Iraq. 21
In the UN Secretary-Generals report from 2011, on the role of regional and sub-
regional arrangements in implementing the responsibility to protect, emphasis was put on
the preventive aspect of R2P and how to strengthen preventive mechanisms such as
mediation. Another important aspect was the cooperation between the UN and the regional
organizations, where the regional organizations have a “better understanding of the
impulses driving the actors of the offending state, with more legitimacy and stake into its
proposals for solutions”. 22 When it came to the third pillar, most of the member states of
the General Assembly said that the use of force was to be considered a last resort and that
a third pillar response “should first include peaceful, economic and diplomatic means”.23
In counter-terrorism operations such as the fight against ISIS, preventive mechanisms such
21 Populations at Risk Current Crisis. (2014, August 1). Retrieved November 15, 2014, available at:
http://www.globalr2p.org/regions/iraq
22 UN General Assembly Informal Interactive Dialogue on "The Role of Regional and Sub-regional
Arrangements in Implementing the Responsibility to Protect",2011. (2012, October 18). Retrieved November
12, 2014, available at: http://www.globalr2p.org/resources/341
23 UN General Assembly Informal Interactive Dialogue on "The Role of Regional and Sub-regional
Arrangements in Implementing the Responsibility to Protect",2011. (2012, October 18). Retrieved November
12, 2014, available at: http://www.globalr2p.org/resources/341

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as mediation and peaceful, economic and diplomatic means are unfeasible and
unattainable when dealing with a terrorist-organization.
While some experts say that operations against ISIS require consent from the territorial
state, others take the position that the victim state “may engage in limited military
operations to prevent further attacks if the territorial state is ‘unwilling or unable’ to put
an end to the group’s activities”. 24 Under the request of the Iraqi Government, the US
intervention against ISIS in Iraq comports with international law. The operations in Syria
cannot be said to comport with international law, based on the fact that the Syrian
Government has not requested any outside intervention. On the contrary, the Syrian
Government has not opposed this action, considering that the fight against ISIS is highly
beneficial for the Syrian Government. It could be argued that the Syrian Government has
implied consent, but to justify an outside military operation based on implied consent
would be antagonistic based on the UN Charter and customary international law on the use
of force. There are four recognized exceptions to the prohibition of the use of force;
consent of the territorial State where the operations are being conducted, self-defence,
collective self-defence and a UN Security Council authorization.25 The United Kingdom
proposed a fifth exception after the use of chemical weapons by the Syrian Government, a
humanitarian intervention in “circumstances involving overwhelming humanitarian
necessity”. 26 Even if this exception was to be officially recognized as part of international
law, the required threshold for what would be considered to be an overwhelming
humanitarian necessity could be debated.
While there is not a set definition of humanitarian intervention under international law,
there have been made suggestions for possible definitions of a wide range. One definition
runs as follows; “the theory of intervention on the ground of humanity (…) recognizes the
right of one State to exercise international control over the acts of another in regard to its
24 Arimatsu, L., & Schmitt, M. (2014, October 6). The legal basis for the war against Isis remains contentious.
Retrieved November 15, 2014, available at: http://www.theguardian.com/commentisfree/2014/oct/06/legal-basis-
war-isis-syria-islamic-state
25Prohibition of the Use of Force. (2014, April 1). Retrieved November 17, 2014, available at:
http://www.lcil.cam.ac.uk/projects/prohibition-use-force
26 Brownlie, I. (2008, January 1). Why humanitarian aims do not justify use of force. Retrieved November 8,
2014, available at: http://www.europaeum.org/europaeum/?q=node/604

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internal sovereignty when contrary to the laws of humanity”. 27Another possible definition
is that humanitarian intervention is “defined as coercive action by States involving the use
of armed force in another State without the consent of its government, with or without
authorization from the UN Security Council, for the purpose of preventing or putting to a
halt gross and massive violations of human rights or international humanitarian law”.28
Building upon the assumption that the principle of humanitarian intervention is accepted
as a threat to peace and by violations of human rights and humanitarian law, the outside
intervention in Syria and Iraq can be constituted to be a humanitarian intervention. The
gross and systematic violations of human rights in Syria and Iraq would fit within the
definition of humanitarian intervention. On the other hand, it can be debated that if a
unilateral definition of humanitarian intervention should be constituted and legalized under
international law, States with ulterior motives could use this as a pretext to wage wars
against other States. By focusing on treaty law, the United Nations Charter does not
exempt humanitarian intervention from the prohibition of use of force without a UN
Security Council Resolution. In August 2014, the UN Security Council, acting under
Chapter VII, urged all States to protect the civilian population in Iraq and Syria, and
condemned what it called “gross, systematic and widespread abuse of human rights”.29
These attacks on civilians based on ethnic and religious identity were to be considered
crimes against humanity. Based on this action taken by the UN Security Council, the
interventions in Syria and Iraq can be viewed as humanitarian interventions, based on the
assumption that the principle of humanitarian intervention is accepted as a threat to peace
and by violations of human rights and humanitarian law on the respective territories.
VII. Legitimate targets
Under customary international law, the definition of a military objective is found in Article
52 of the Additional Protocol 1, and states that “In so far as objects are concerned,
military objectives are limited to those objects which by their nature, location, purpose or
27 Rydiker, A. (2001). The ICRC’s position on “humanitarian intervention”. IRRC June, 83(842), 528-528
28 Rydiker, A. (2001). The ICRC’s position on “humanitarian intervention”. IRRC June, 83(842), 528-528
29 Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by
Extremist Groups in Iraq, Syria | Meetings Coverage and Press Releases. (2014, August 15). Retrieved November
6, 2014, available at: http://www.un.org/press/en/2014/sc11520.doc.htm

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use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage”.30 The International Committee of the Red Cross drew up a
list of categories of military objectives, as a commentary to the Additional Protocols of
1977. The following categories were mentioned; Armed forces, organizations and persons
who take part in the fighting, installations and constructions occupied by the forces
mentioned above, installations and organs for the direction and administration of military
operations, military supplies, airfields and rocket launching ramps, means of
communications of military importance, weapon industries, chemical industries and
storage installations. 31 After identifying a legitimate target, the principle of proportionality
must come into consideration. Even though some civilian casualties are anticipated, the
deliberate targeting of civilians is illegal under LOAC. This will be further discussed
under the moral considerations. While targeting specific individuals, a distinction has to be
made between combatants, civilians and those who are directly participating in hostilities
to be able to identify legitimate targets.
By using drones as means of intelligence, the information gathered by the drones is
critical to any targeting and proportionality analysis. Under LOAC, an attack where the
civilian casualties will be excessive in light of the military advantage gained from the
operation, is considered to be disproportionate and is concerned with the unintended
victims of the use of force. When it comes to jus in bello proportionality, it focuses on the
symmetry between the original attack and the use of force in response to that attack. In
human rights law, proportionality is concerned with the target of the attack of the use of
force and comes to terms when law enforcement use force as a last resort. In counter-
terrorism operations like the fight against ISIS, the mix of law enforcement within a
territory and the military forces that are participating, putting these concepts to use can be
tricky.
When it comes to precautions in an attack, all precautionary measures must be taken to
protect civilians. Article 57(1) of the Additional Protocol I, states that “in the conduct of

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military operations, constant care shall be taken to spare the civilian population, civilians
and civilian objects”.32 It states that those who plan an attack shall make sure that the
objectives are indeed military objectives and not civilians, take all precautions possible to
protect civilians, refrain from launching attacks where the collateral damage is excessive,
cancel or suspend the attack if the target can not be considered a military objective and
give effective advance warning. Based on this, even if a target is legitimate, the failure of
taking precautions can make an attack on that target unlawful under international law.
In Syria and Iraq, the launching of attacks on military objectives has been proven to
result in collateral damage. Even when trying to minimize the civilian casualties and by
using all the components in the precautions framework, there will be collateral damage.
The obligation under LOAC is to take precautions that are feasible under the
circumstances, based on the information that is available at the time of the attack. By using
drones as means of surveillance, a legitimate target during the day may be an unlawful
target at night based on civilian activity and vice versa. Both in Syria and Iraq, the United
States has targeted ISIS leaders, militants, convoys, stores of supplies, vehicle parks,
weapon industries and installations occupied by ISIS. Based on the information gathered
from intelligence, these are all legitimate targets under LOAC, even when there is a high
number of civilian casualties.
Another important principle when planning to launch attacks is the obligation of
warning civilians before launching an attack. By warning civilians, they have the
opportunity to leave and move to a safer location. Under Article 26 of the Regulations to
the 1907 Hague Convention, it is stated that “the officer in command of an attacking force
must, before commencing a bombardment, except in cases of assault, do all in his power to
warn the authorities”. 33 Under international law, there must be a presence of explicit
consent from the Government of that State or the approval of a UN Security Council
decision to make an advance warning or notification of an attack. The White House
reportedly notified the Syrian Government before the US launched attacks in the region.
New York City: Wolters Kluwer Law & Business. The quote comes directly from Art. 57(2)(c) API.

15
The United States has the permission of the Iraqi Government to launch attacks against
ISIS on Iraqi soil and is protected by international law.
IIX. Moral Considerations
The primary moral considerations against air strikes and targeted killings are the collateral
damage, the civilian casualties. Under International Humanitarian Law, a civilian is a
person that is not directly participating in hostilities. By targeting specific individuals,
there is a high risk of civilian casualties. When considering targeting specific individuals,
one must consider the concept of proportionality. The harm caused to civilians must be
“proportional and not excessive in relation to the concrete and direct military advantage
anticipating by an attack on a military objective”.34 The actual number of deaths, direct
and indirect, as a result of war and targeted killings are high and the effects can be
disastrous. When civilians are killed or injured, not only is the human suffering extensive,
it may have fatal consequences for their families. Medical expenses, taking care of an
injured relative or the loss of an income can have fatal consequences for an entire family.
Another moral consideration is the fact that these targeted killings and air strikes makes it
easier to go to war against another State. To send troops and get boots on the ground in a
sovereign state can be way more difficult than launching attacks from a military base
within the United States. Another aspect is the video game-like quality of piloting a drone:
the comfort of being in a safe space while launching attacks on targets abroad might not be
considered a just war. Rather than viewing our enemies, the specific individuals and the
civilians as human beings with dignity, they can be viewed as participants in a political
game. Another moral consideration is the toll that these drones are taking on the people in
the affected areas; who live with the daily presence of the drones in their skies. They are
able to hear them and therefore it can be considered a constant threat, and they are unable
to ensure their own and their family’s safety. This leads to anxiety, stress and constant
fear. In addition to this, drone strikes are often used to attack a target multiple times within
a limited timeframe, which is causing first-responders and other aid workers to avoid these
sites, which is causing injured victims to die due to lack of medical assistance.
34 Customary IHL - Practice Relating to Rule 14. Proportionality in Attack. (2014). Retrieved November 3,
2014, available at: https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14_sectiona

16
Furthermore, it is a violation on international human rights, hereunder the right to life,
liberty and security of persons.
The moral arguments in favor of these killings are several. By using drones, you
minimize the risk of US soldiers getting killed in combat. It might be more easily accepted
at home here in the United States, when you do not have to risk any lives to participate in
war. Another moral consideration in favor is the fact that with the United States being so
easily accessible in both time and distance from most of the countries in the world, almost
every terrorist organization can have the potential to launch an attack either on US
territory or on US facilities in other regions, and this can be considered a threat, both
active and latent. Targeted killings are effective to protect American lives, both in the US
and in the regions. Another consideration is that while the initial costs of purchasing new
equipment and technology are high, it is more cost effective to use drones as part of
modern warfare.
IX. Legal Considerations
The legal argument in favor of the targeted killings is that the United States has been asked
to assist the Iraqi Government against ISIS. ISIS is considered to be a terrorist
organization that is trying to take over the Iraqi Government and the government requested
outside assistance. By requesting assistance, the United States can participate in the war
against ISIS in Iraq based on International Law. In August 2014, the UN Security Council,
acting under Chapter VII, urged all States to protect the civilian population in Iraq and
Syria, and condemned what it called “gross, systematic and widespread abuse of human
rights”.35 These attacks on civilians based on ethnic and religious identity were to be
considered crimes against humanity.
Under International Law, State sovereignty is defined as “the concept that states are in
complete and exclusive control of all the people and property within their territory.” 36
With the consent of the Iraqi Government to launch attacks on Iraqi soil, it is not a
35 Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by
Extremist Groups in Iraq, Syria | Meetings Coverage and Press Releases. (2014, August 15). Retrieved November
6, 2014, available at: http://www.un.org/press/en/2014/sc11520.doc.htm
36 The Issue of Sovereignty. (2014, January 1). Retrieved November 6, 2014, available at:
http://www.globalization101.org/the-issue-of-sovereignty/

17
violation of State sovereignty. By giving consent to the international community to launch
attacks, the States that are directly participating are to be considered to be in war, where
the laws of war apply. Under the request of the Iraqi government and as a part of war, the
targeted killings and the air strikes can be considered legal under international
humanitarian law.
X. Policy considerations
The intended purposes of Law of war are, as mentioned above, to determine whether
entering into war is permissible, and if a war is to be declared, international humanitarian
law will govern the way that warfare is conducted. The cornerstone of IHL is the Geneva
Conventions and the additional protocols, which combines legal obligations and cover
basic humanitarian principles. Even with the legal framework in place, the efficacy of the
policies may be viewed as limited considering most conflicts are non-international and
most international laws cover international conflicts.
An argument against these targeted killings is, based on US foreign policy, that drone
strikes are viewed as an effective antiterrorism method. The ethics and the legality of
drone strikes can be debated, as mentioned above. Another argument is that if these
targeted strikes are to be continued, and the use of drones will be spread to other Nations,
there should be set an international standard governing the use of drones. If other Nations
are to use drones responsibly, the US must use them responsibly and set the standard for
the rest of the world. Furthermore, the efficacy of US drone policy may be viewed as not
being effective enough based on the principle of proportionality, where too many civilians
are killed. Another aspect is that it is unclear how effective these lethal strikes will be in
the long run. Furthermore, there is a lack of transparency from the Obama administration
on the legal justifications of this policy and these strikes may not be consistent with the
core rule of law norms.
An argument in favor of these targeted killings is that the US drone policy seems to be
effective when it comes to identifying and confirming identities of specific individuals and
that it is a precise way to target these individuals. The use of drones is putting the United
States at an advantage when it comes to counter-insurgency and counter-terrorism and can
therefore be considered to achieve the objectives of US policy on drones.

18
XI. Detainees and the Status of the ISIS fighters if captured
Under international law, the legal term “combatant” is only applicable in international
armed conflicts. To be able to identify the individual’s status, one must first determine the
nature of the conflict they were involved in. Under Article I of the Regulations Respecting
the Laws and Customs of War on Land of the Hague Convention of 1907, the definition of
combatant was defined as “The laws, rights, and duties of war apply not only to armies,
but also to militia and volunteer corps fulfilling the following conditions; to be
commanded by a person responsible for his subordinates, to have a fixed emblem
recognized at a distance, to carry arms openly and to conduct operations in accordance
with the law”.37 Under the Third Geneva Convention, the Convention relative to
Treatment of Prisoners, a Prisoner of War is any person that has fallen into the power of
the enemy and that belong to any of these categories; members of armed forces, militias
and volunteer corps who perform actions such as an armed force; militias and volunteer
corps belonging to a Party to the conflict, including resistance movements operating in or
outside their own territory based on the conditions mentioned in Article 1 of the
Regulations Respecting the Laws and Customs of War on Land; members of armed forces
that belong to a Government or an authority that is not recognized by the Detaining Power;
civilians who have received authorization from an armed force to accompany the armed
force; members of crew Parties to the conflict who do not benefit by more favorable
treatment under any other provisions of international law; and inhabitants of a non-
occupied territory who resist and/or take up arms against the invading forces.38
If classifying ISIS as a militia or other armed group fighting in an international
conflict, its members must meet four additional criteria in accordance to the Hague
Convention and the Third Geneva Convention. They must (1) be under responsible
command; (2) carry a distinctive sign; (3) be openly armed; and (4) they must conduct
their operations in accordance with IHL. If they are able to meet these criteria, they are
38 Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21,
1950. (2014, January 1). Retrieved November 5, 2014, available at:
http://www1.umn.edu/humanrts/instree/y3gctpw.htm

19
entitled to an individual determination of their status under the Third Geneva
Convention.39
A civilian who in times of conflict is detained by a Party to the war based on a security
risk is called a civilian internee. This status is based on conduct rather than status. These
internees are detained for security reasons, for protection or they have committed an
offense against the detaining Power. This special status is under the Fourth Geneva
Convention; under Article 4 as; ”Persons protected by the Convention are those who, at a
given moment and in any manner whatsoever, find themselves, in a case of conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of which they are
not nationals”40 and under Article 5, which states that they are to be treated with humanity
and they have the right to a fair and regular trial.
A non-international conflict is still covered by international law and the parties are
required to comply with Common Article 3 of the Geneva Conventions. Common Article
3 states that there is a non-international armed conflict if there is “protracted armed
violence between governmental authorities and organized armed groups or between such
groups within a State”.41 Article I of the Additional Protocol II to the Geneva Conventions
supplements Common Article 3 and applies to all armed conflicts which are not covered
under Article 1 of the Additional Protocol to the Geneva Conventions that take place in the
Territory of a High Contracting Party and is between armed forces and other organized
armed groups, which “..under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted military operations”.42
39 K.Blank, L., & P. Noone, G. (2013). Foundations.In International law and armed conflict (2013 ed., p. 211-
223). New York City: Wolters Kluwer Law & Business
40 Geneva Convention relative to the Protection of Civilian Persons in Time of War. (2014, January 1).
Retrieved November 16, 2014, available at:
https://childrenandarmedconflict.un.org/keydocuments/english/thefourthgenevac3.html
41 Qualification of armed conflicts. (2008, April 1). Retrieved November 18, 2014, available at:
http://www.geneva-academy.ch/RULAC/qualification_of_armed_conflict.php
42 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June
1977, 1125 UNTS 609, available at: http://www.refworld.org/docid/3ae6b37f40.html [accessed 19 November
2014]

20
Non-state combatants that are captured in a non-international armed conflict are not
entitled to prison of war-status since POW-Status does not exist in the laws of non-
international armed conflict.
The United States has determined that the detainees from the war on terror, such as
ISIS, are to be considered unlawful enemy combatants. Unlawful enemy combatants do
not qualify for protection under the Third Geneva Convention nor do they have the rights
consistent with the Conventions. The distinction between lawful and unlawful enemy
combatants is that the lawful enemy combatants are protected by the Geneva Conventions.
The United States has consistently categorized their detainees as either unlawful enemy
combatants or civilian internees.
ISIS can be considered either militia or volunteer corps. To decide whether they are
entitled to POW status, they must meet the four requirements in accordance to the Hague
Convention and the Third Geneva Convention. Firstly, it can be debated whether ISIS has
an organized command structure within the organization and whether there is a military
commander that takes responsibility for the action performed by the ISIS fighters. There is
no clear or permanent infrastructure and ISIS is not dependent on either the sovereign state
of Syria or Iraq and it lacks the organization structure that is consistent with a military
structure. Secondly, members of ISIS do not wear any consistent distinctive signs that
make them distinguishable from the civilian population in either of the countries. Thirdly,
ISIS carries arms openly in both Syria and Iraq, but considering the situation in Syria,
where there is a civil war in addition to this conflict, many people in both countries carry
arms openly. This, and the fact that they do not wear any sort of uniform or any other
distinctive sign, makes it difficult to distinguish between an ISIS member and a civilian.
Lastly, there is no indication that ISIS has any fundamental understanding of the Geneva
Conventions and therefore do not consider themselves bound by international law. Based
on this, ISIS fails to meet the four criteria to be entitled POW status under international
law. If members of ISIS were to be captured by the United States, they would be
considered unlawful combatants and would only be protected under the Fourth Geneva
Convention, where they are to be treated with humanity and have the right to a fair trial.
XII. Conclusion

21
There are four recognized exceptions to the prohibition of the use of force; consent of the
territorial State where the operations are being conducted, self-defence, collective self-
defence and a UN Security Council authorization. The United Kingdom proposed a fifth
exception after the use of chemical weapons by the Syrian Government, a humanitarian
intervention in “circumstances involving overwhelming humanitarian necessity”. Even if
this exception was to be officially recognized as part of international law, the required
threshold for what would be considered to be an overwhelming humanitarian necessity
could be debated.
While some experts say that operations against ISIS require consent from the territorial
state, others take the position that the victim state “may engage in limited military
operations to prevent further attacks if the territorial state is ‘unwilling or unable’ to put
an end to the group’s activities”. Under the request of the Iraqi Government, the US
intervention against ISIS in Iraq comport with international law. The operations in Syria
cannot be said to comport with international law, based on the fact that the Syrian
Government has not requested any outside intervention. On the contrary, the Syrian
Government has not opposed this action, considering that the fight against ISIS is highly
beneficial for the Syrian Government. It could be argued that the Syrian Government has
implied consent, but to justify an outside military operation based on implied consent
would be antagonistic based on the UN Charter and customary international law on the use
of force.
ISIS has been deliberately targeting religious minority groups such as Christians, in a
pursuit of turning Syria and Iraq into States only for the Muslim majority. The executions,
beheadings and crucifixion of Christians may amount to and fit within the definition of
both Article II and III of the 1948 Convention of the Prevention and Punishment of
Genocide. In Iraq, ISIS has targeted a minority religious group called Yazidis. By
targeting, killing, causing bodily and mental harm to members of the community and
deliberately inflicting on the group conditions of life to bring about its physical destruction
of Yazidis, it fits within the definition of genocide and it can therefore be argued that ISIS
has committed genocide both in Syria and Iraq. Additionally, ISIS can be considered to
have carried out ethnic cleansing in both Syria and Iraq, based on the killings and the
forced displacement of persons.

22
Though terrorist activities within a territory does not necessarily constitute armed
conflict between States and can be considered a non-international armed conflict, it can be
argued that the situation in Syria and Iraq fits within the definition of LOAC based on the
United States intervention. The counter-terrorism actions performed by the Government in
Iraq and Syria are within their territories and might not bring them within scope of
application of the provisions of international armed conflict. Based on the targeting and
detention policy of the United States found in the Authorization for Use and Military
Force of September 18, 2001, and that ISIS is considered to be a threat to the United States
and/or citizens of the United States, the United States approach in the war of terror is
consistent with LOAC and therefore it can be reasoned that it constitutes as an
international armed conflict under the definition of international armed conflict as per
understood in LOAC.
The Responsibility to Protect (R2P) refers to the obligation of States towards their own
population and any other population that is at risk of genocide, war crimes, ethnic
cleansing and crimes against humanity. If a State is unable to protect its own population,
the international community can take appropriate and collective action in accordance to
the United Nations Charter. The conflict in Syria and Iraq can be considered to be an
ongoing R2P crisis and the international community has failed to live up to its obligations
set by the General Assembly Resolution.
Building upon the assumption that the principle of humanitarian intervention is
accepted as a threat to peace and by violations of human rights and humanitarian law, the
outside intervention in Syria and Iraq can be constituted to be a humanitarian intervention.
The gross and systematic violations of human rights in Syria and Iraq would fit within the
definition of humanitarian intervention.
Both in Syria and Iraq, the United States has targeted ISIS leaders, militants, convoys,
supply stores, vehicle parks, weapon industries and installations occupied by ISIS. Based
on the information gathered from intelligence, these are all legitimate targets under LOAC,
even when there are a high number of civilian casualties.
The United States has determined that the detainees from the war on terror, such as
ISIS, are to be considered unlawful enemy combatants. Unlawful enemy combatants do
not qualify for protection under the Third Geneva Convention nor do they have the rights

23
consistent with the Conventions. The distinction between lawful and unlawful enemy
combatants is that the lawful enemy combatants are protected by the Geneva Conventions.
The United States has consistently categorized their detainees as either unlawful enemy
combatants or civilian internees. If classifying ISIS as a militia or other armed group
fighting in an international conflict, its members must meet four additional criteria in
accordance to the Hague Convention and the Third Geneva Convention. They must (1) be
under responsible command; (2) carry a distinctive sign; (3) be openly armed; and (4) they
must conduct their operations in accordance with IHL. If they are able to meet these
criteria, they are entitled to an individual determination of their status under the Third
Geneva Convention. ISIS fails to meet the four criteria to be entitled POW status under
international law. If members of ISIS were to be captured by the United States, they would
be considered unlawful combatants and would only be protected under the Fourth Geneva
Convention, where they are to be treated with humanity and have the right to a fair trial.
Technical Score
(length, font, grammar,
structure)
Substantive Score
(research,
recommendations,
analysis)
Additional
Points
Earned/Lost
(late
submission, etc)
Total
Score
Point Value 10/10 70/70 N/A 80/80

24
Points
Earned
7/10 63/70 70/80
Comments -Several grammatical
errors
-There could have been a
lot more citations,
particularly for legal
definitions
-The flow of the paper was
sometimes a bit confusing.
It may help to break up the
sections into smaller
subsections with headings
that help the reader follow
along. It would also help
to always have transition
sentences whenever you
change topics, in order to
link paragraphs together.
-Overall you have a very
good grasp of the legal
framework and basic
principles, but there was
some confusion on the
application of different
rules based on whether a
conflict was international
or non-international in
nature.
-The topic of your paper
was supposed to be the
legality of US leg air
strikes, but you spent
signficant time
discussing detention.
-Your conclusion
repeated word-for-word
paragraphs from the
body of your paper.
Conclusions should
summarize/make
recommendations, they
should not repeat
verbatim what has
already been said.

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