Obama administration officials returned Tuesday to citing Congress' 2001 authorization to wage war on the terrorists responsible for the 9/11 attacks as legal grounding for its overnight airstrikes against Islamic State militants and an al-Qaida affiliate inside Syria.
But Secretary of State John Kerry has separately raised the idea of a “right of hot pursuit” across borders — a concept with little grounding in international law — as a basis for attacks on the militants.
President Barack Obama has said repeatedly that U.S. troops will advise Iraqi forces but will not be used for combat directly against the Islamic State group. During a hearing last week by the Senate Foreign Relations Committee, Kerry said the same, but then unexpectedly explained the hot pursuit doctrine, which had not previously been cited by the Obama administration to legally justify any part of its new war.
“So, Iraq is asking us to help them,” Kerry said. “And as a matter of right, if they're being attacked from outside their country, you have a right of hot pursuit. You have a right to be able to attack those people who are attacking you as a matter of self-defense.”
International law experts said there is a recognized right of hot pursuit to pursue ships escaping in international waters, but there is no similar global legal authority that would allow one nation to violate another nation's border to pursue an opposing force on land. Even without that precedent, numerous nations have repeatedly taken action across borders — including raids by U.S. troops in recent years pursuing militants from Afghanistan into Pakistan.
A State Department spokesman, Jeff Rathke, elaborating on Kerry's comments last week, said Kerry was referring to the recognized concept of a nation's right of self-defense, “which includes the right to use necessary and proportionate force to address armed attacks that emanate from another nation, if that nation is unwilling or unable to address the threat.”
Administration officials alluded to the self-defense concept on Tuesday, saying that both the Islamic State group and Khorasan were dangers both to the U.S. and its military coalition partners in the Mideast aiding Iraqi forces.
Officials said the 2001 Authorization for Use of Military Force against terrorists provides Obama with a basis to attack both Islamic State and Khorasan targets. The officials said the Khorasan group in Syria has direct ties to al-Qaida and is linked to bomb testing inside Syria and planning for terrorist actions against U.S. and Western interests. The Islamic State group broke with al-Qaida earlier this year and has yet to be linked to active plots against the U.S., but officials said it retains historic ties to the terror group and presents a threat because of its reliance on foreign fighters, whose ranks include some Americans.
U.S. forces used fighter jets, bombers and cruise missile in strikes against Islamic State and Khorasan targets in northern Syria on Monday, Pentagon officials said. Officials also said Bahrain, Qatar, Saudi Arabia, Jordan and the United Arab Emirates are aiding the offensive.
Neither Kerry nor his spokesman identified which military forces might rely on “hot pursuit” as legal basis for strikes or other military action. But Kerry's comments, which came during an exchange with Sen. Ben Cardin, D-Md., closely followed a discussion about the role U.S. and Iraqi forces and an international coalition would play in countering the Islamic State threat.
Cardin had asked Kerry how the government should obtain congressional approval for a war that would also “protect us against any lengthy particularly combat involvements in these countries in the future.”
Kerry responded that “our lawyers also are clear that Iraq has a right of self-defense, and Iraq is exercising its right of self-defense and asking the United States to help it. And we already have a military agreement with them with respect to that.”
International law authorizes military action if a nation can show it is acting in self-defense. But even recognizing that nations have repeatedly invoked their self-interest in striking at opposing forces across borders, legal experts said there is no governing international legal code that recognizes a reflexive right of hot pursuit on land.
Temple University law professor and international law authority Peter J. Spiro said the hot-pursuit doctrine is well-established in criminal law, used to justify U.S. law enforcement pursuit of an armed fugitive across state lines. But Spiro added that “without some justification or U.N. National Security Council authorization, any use of force will comprise a violation of Syrian sovereignty.”
There is clearer authority when it comes to pursuit on the sea. The 1958 Geneva Convention codified authorities' right to pursue and apprehend ships that have violated a nation's laws and have escaped from a country's national waters into international waters. Kerry cited that law in 2008 when, as the incoming chairman of the Senate Foreign Relations Committee, he called for the pursuit of pirates onto land in Somalia. The United Nations Security Council later authorized sea-to-land pursuit in Somalia.
As a Swift Boat commander during the Vietnam War, Kerry practiced a version of hot pursuit on his own, beaching his boat to pursue Vietcong guerrillas firing from land. In one incident, Kerry shot and killed a Vietcong armed with a weapon and was later awarded the Silver Star — even though his superiors had ordered boat commanders not to risk combat on land.