The Conflation of Military and Humanitarian Operations in Northern Iraq

Publication Date: 
Monday, August 18, 2014
Domiz camp for Syrian refugees in Dohuk Governorate, northern Iraq. In the photo: latrines made of brick and corrugated sheet metal - each family has its own  © Heba Aly/IRIN

On 8 August, US military forces began targeted airstrikes against ISIS militants in northern Iraq, in conjunction with humanitarian aid drops to assist the Yazidi population stranded on Sinjar Mountain. On 13 August 13, US officials reported the end of the militants’ siege on the Yazidis, many of whom have since escaped to Iraqi Kurdistan.

What is the basis for US intervention under international law?

Under international law, states are prohibited from “the threat or use of force against the territorial integrity or political independence of any state.”[Article 2(4) of the UN Charter]. However, there are several exceptions to this prohibition on the use of force. One exception is self-defense, which authorizes states to respond individually or collectively to an armed attack [Article 51]. The UN Charter makes another exception for measures authorized by the Security Council to “maintain or restore international peace and security”[Chapter VII]. This is the legal basis for many contemporary peacekeeping missions. When the territorial state itself consents to an intervention, is another exception.

In this case, the US says that its actions are based on a request for assistance from the Iraqi government, which would suffice to legalize the intervention under international law.

Beyond the UN Charter, the doctrines of “humanitarian intervention” and “responsibility to protect” (R2P) propose that individual or collective use of force against a sovereign state can be permissible, or even obligatory, for humanitarian reasons such as preventing mass atrocities. Without Security Council authorization, however, such actions remain highly controversial and questionably legal. With the purported consent of the Iraqi state, the current US operation in northern Iraq is neither a violation of Iraqi sovereignty nor a case of humanitarian intervention or R2P.

What is the basis for this intervention under US domestic law?

Set against the backdrop of the 2003 US invasion of Iraq and US military withdrawal in late 2011, it is important to consider US domestic law as well. Here, the picture becomes somewhat murkier, due to ambiguity over the source of authority for the use of force. The Obama Administration has cited several rationales, including the President’s authority under Article II of the Constitution as Commander-in-Chief of the armed forces. In defense of the military operation during at statement on 7 August, President Obama also cited the need to “prevent a potential act of genocide” against the Yazidi population in Iraq:

When we face a situation like we do on that mountain -- with innocent people facing the prospect of violence on a horrific scale, when we have a mandate to help -- in this case, a request from the Iraqi government -- and when we have the unique capabilities to help avert a massacre, then I believe the United States of America cannot turn a blind eye.  We can act, carefully and responsibly, to prevent a potential act of genocide.

Yet the President’s powers under Article II only extend so far as authorizing military force when vital national security interests are at stake. This may suffice in the context of protecting US persons and facilities in Erbil from an ISIS attack, but not for launching a humanitarian intervention. A unilateral decision by the President to use force for humanitarian reasons would be unconstitutional, writes Ilya Somin of George Mason University School of Law, as, “anything more than extremely limited air strikes would be an act of war that requires congressional authorization.” For Marty Lederman from the Georgetown University Law Center, along with Jack Goldsmith of Harvard Law School, however, such a Presidential authorization would constitute “potential legal innovation”, to quote Lederman.

What challenges arise from this conflation of military and humanitarian operations?

The intervention is comprised of two distinct missions: a military and a humanitarian one. Namely, in addition to the humanitarian airdrops to the Yazidi population stranded on Sinjar Mountain, President Obama also authorized “targeted airstrikes” to protect US personnel and facilities against advancing ISIS forces. Many media reports have conflated these two distinct missions, reporting for example on “airstrikes or airdrops of food and medicine to address a humanitarian crisis”. While the provision of humanitarian assistance by military forces is not new, it is important for humanitarian practice to distinguish between these two missions.

Under international humanitarian law, the core humanitarian principles of neutrality, impartiality, and independence exist to ensure the effectiveness of humanitarian operations in reaching those in need. When humanitarian action is undertaken in conjunction with military operations, it may compromise the independence of humanitarian workers by creating the perception that humanitarian operations are party of a state or military agenda. This can seriously jeopardize the security of humanitarian workers and their ability to operate on the ground.

The military can play a role in providing security or even humanitarian aid, especially in situations where only military forces possesses the necessary logistical capacity to respond. This was the case in Haiti following the 2010 earthquake, for example, when the US military played an important role in disaster response. Nonetheless, it is crucial to maintain the distinction between military and humanitarian operations in both language and practice. While this distinction is crucial, however, it is often blurred in practice. Military forces may seek to use humanitarian operations for military advantage, or to gain popular support. This poses a challenge for humanitarian professionals. In Iraq, humanitarian organizations have criticized the US for failing to preserve the independence of humanitarian actors, exposing aid workers to attack. Citing similar security fears resulting from the blurring of military and humanitarian operations, Médecins sans Frontières (MSF) decided to pull out of Afghanistan in 2004, after five of its staff members were murdered; this marked MSF’s first pullout from a country in 33 years of operations. Military involvement in humanitarian aid should only come as a last resort, emphasize the guidelines on humanitarian civil-military relations published by the UN Office for the Coordination of Humanitarian Affairs (OCHA), including specially in Iraq; humanitarian needs are best served by preserving the clear division between military and humanitarian operations.

Image: Thousands of Iraqis have fled the Sinjar region following advances by the group calling themselves the Islamic State (ISIS). © Médecins Sans Frontières

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