The 2016 presidential race has, without a doubt, become one of the most significant electoral phenomena in recent American history. Moreover, the Islamic State (IS) poses a historic problem for candidates, and although foreign policy has not taken center stage, a quiet but vociferous debate goes on about whether the Democrats’ left hand—Bernie Sanders—is more of a hawk or a dove. Sanders basically has no chance of winning the Democratic nomination, but has affected the presumptive Democratic nominee’s position in significant ways. We know enough about Clinton’s foreign policy history given her tenure as Secretary of State, but we know little about Sanders’ positions and how they would possibly influence Clinton. Is Sanders’ policy towards IS theoretically legal? If it reaches the threshold of legality, does that necessarily mean it fulfills the requirements of jus ad bellum and jus in bello? Two useful yet tragically under-utilized lenses for analyzing candidates’ proposed military aggression are those of just war theory and international humanitarian law.
Just War Theory and International Humanitarian Law
International humanitarian law, sometimes called the laws of war, is a set of international legal obligations that applies to states during times of conflict and proscribes them or their agents from certain actions in order to mitigate the harmful consequences of armed conflict. Just war theory provides the legal justification for international humanitarian law, and: jus ad bellum and jus in bello. Jus ad bellum relates to states’ preparatory actions for engaging in conflict before actually doing so. Jus in bello states that, whatever states’ motivations, their wars must be conducted justly. Without going into too much detail, the international humanitarian legal regime takes jus ad bellum and jus in bello as given requirements of warfare—these are like constitutional principles that cannot be violated. The rights granted to states by jus ad bellum and jus in bello are the rights to (1) declare war with just cause and (2) respond to force proportionally.Jus ad bellum derives legal support from Articles 2 and 51 of the UN Charter. Jus in bello’s derives legal support from the Geneva and Hague Conventions, and from customary international law. States have five minimum requirements according to just war theory. First, any just war must be waged by an internationally recognized actor, such as a state or a coalition of states, and must be announced publicly ahead of time. Second, wars must be waged with just intentions, such as the maintenance or restoration of peace. Third, states waging war must only do so if there is sufficient evidence to suggest that the war’s objectives are achievable—the laws of war prohibit mass violence if nothing will likely come of it. Fourth, wars must be waged via proportional means. In other words, if one state invades and conquers another’s territory, then the latter only has the right to take back what is due, not conquer more than its fair share of the former’s territory. Finally, war must only be a last resort after exhausting all other, non-violent means of conflict resolution. As long as states meet these five requirements, their foreign policies are theoretically legal under a just war framework.
It is not useful to list every illegal offense in this essay, which is only concerned with Sanders’ response to IS. Matters of international humanitarian law are almost never as clear-cut as deeming something legal or illegal; they depend on innumerable factors and can be justified in myriad ways by a competent lawyer. However, international humanitarian law relates to jus in bello and derives its authority from two principle legal sources. First, international humanitarian law derives support from hard sources of law in treaties like the Geneva and Hague Conventions, and other legal documents. Second, although not every state is signatory to the relevant treaties, and less have ratified the legal statutes in question, but customary law criminalizes the most severe violations of international humanitarian law. For example, drones are not explicitly banned by any international legal statute, nor are they considered inherently indiscriminate according to the International Committee of the Red Cross (ICRC). But all states going to war must satisfy the principle of distinction, meaning that they must distinguish between civilians and combatants. Drone strikes against terrorist groups like al Qaeda have a higher threshold for distinction because it is not always clear whether the target is a combatant or not. This means that tactics like signature strikes, for example, are “clearly unlawful,” at least according to the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions Christof Heyns.
Sanders’ Foreign Policy
During the first Democratic debate, Sanders said, “I am not a pacifist […] I support airstrikes in Syria and what the president is trying to do.” Sanders has also shown himself wary of deploying boots on the ground. And he has even called the situation in Syria “a quagmire in a quagmire,” claiming to “make sure that the United States does not get involved […] like we did in Iraq, the worst foreign policy blunder in the history of this country.” So, if he sticks to his campaign promises, we can expect that Sanders likely will not support boots on the ground, opting instead for airstrikes and a coalition of Middle Eastern nations to combat IS—a policy the Senator first supported in 2014.
So, would Sanders’ proposed airstrike-coalition plan comply with the laws of war, and would they adhere to just war theory? On the first question, maybe. On the second, no.
Few would dispute that fighting IS sufficiently constitutes a just cause, especially if the belligerent nations include those most proximate (e.g., the hypothetical members of Sanders’ proposed coalition) and those whose citizens were killed by IS members, not just those who would be indirectly threatened (e.g., the U.S., France, and other victims of IS attacks). Barring more cynical theories that the IS was created by the West in order to justify intervention, going to war because your people have been beheaded or blown up in terrorist attacks does not represent a war of aggression, even if they may do harm to the region. Moreover, Obama’s announcement that his administration will “degrade and ultimately destroy” IS could reasonably count as a public declaration of war by an internationally recognized actor: the United States. What remains is to provide sufficient evidence that military operations are (1) the last resort and (2) likely to achieve the war’s objective. As long as Sanders sticks to his belief that “unilateral military action should be a last resort” and proffers a solution that will likely “degrade and destroy” IS, he has satisfied jus ad bellum.
Sanders’ plan does not fulfill jus in bello, however. Considering that drones are not inherently illegal, but must satisfy the principle of distinction, airstrikes comply with the law only to the unlikely extent that military leaders refrain from signature strikes and other, similar indiscriminate tactics. If, however, the military did not refrain from indiscriminate attacks à la Obama administration, the types of attacks Sanders only says are “counter-effective,” then the drone policy would violate the principle of distinction. The U.S. has not ratified Protocol I of the Geneva Conventions—the protocol officially codifying distinction—but the ICRC considers distinction distinguishing between civilians and combatants part of customary law, or “general practice accepted as law” and independent of treaties. Furthermore, assembling a coalition of Middle Eastern states might relieve the U.S. of any legal responsibility for wars of aggression—whether or not the coalition’s actions would violate the laws of war is beyond this essay. However, if the U.S. knowingly provides funding, weapons, or training to the hypothetical coalition and the latter subsequently violates any international humanitarian law, a case could be made for the U.S.’s complicity. Lastly, if the Senator’s plans include indefinitely and illegally detaining prisoners at Guantánamo Bay—or any other military prison for that matter—and employing enhanced interrogation methods with the purpose of discovering information about IS, then the plan’s detention strategy would violate international humanitarian law. In the abstract, Sanders’ vagueness puts his IS plan in the clear. But as a strategic campaign maneuver, it leaves open the possibility of violating the law when the situation supposedly calls for it. As Sanders described himself, “I am not a pacifist.”
Significant evidence suggests that drone strikes—arguably the centerpiece of Obama’s and Sanders’ plans—engender anti-American sentiment and support for IS. According to a public letter written by four Air Force service members with more than 20 years of experience between then, mistakes that result from the drone program, such as the killing of civilians and U.S. citizens “fueled the feelings of hatred that ignited terrorism and groups like [IS], while also serving as a fundamental recruitment tool similar to Guantánamo Bay.” The number of drone strikes sharply increased under Obama, which Sanders considers “constitutional and legal.” Therefore, Sanders faces an uphill battle to prove that continuing airstrikes will likely achieve the war’s objectives, and that his IS policy will comply with international humanitarian law’s jus in bello requirements.
As with any election, foreign policy has taken a back seat to important questions such as what to do with the economy, and this is no more evident than in Sanders’ campaign. However, all candidates’ policies towards IS represent no less important questions. Sanders can easily justify waging war against IS, thus fulfilling jus ad bellum, however his plan’s strong support for drone strikes sends it into questionable legal territory under the best circumstances, and frankly illegal territory under the worst circumstances. Insofar as it might comply with the law and established principles of justice in international relations, we mightaccept it as a legitimate plan, but the vagueness with which it has thus far been proffered do more for leaving open the possibility of omission of the U.S.’s legal obligations than to assuage any concerns over its illegality.
All views expressed are solely those of the author, and do not necessarily reflect the views of the World Mind or of Clocks and Clouds.