US government lawyers have invoked Iraq’s right to self-defence and the weakness of the Assad regime as twin justifications for US bombing in Syria, in a feat of legal acrobatics that may reopen questions over its right to intervene in the bitter civil war.



In a letter to the United Nations secretary general, Ban Ki-moon, released near 24 hours after attacks began, US ambassador Samantha Power argued that the threat to Iraq from Islamic State, known as Isis or Isil, gave the US and its allies in the region an automatic right to attack on its behalf.

“Iraq has made clear that it is facing a serious threat of continuing attacks from Isil coming out of safe havens in Syria,” Power wrote.

“The government of Iraq has asked that the United States lead international efforts to strike Isil sites and military strongholds in Syria in order to end the continuing attacks on Iraq, to protect Iraqi citizens and ultimately to enable and arm Iraqi forces to perform their task of regaining control of the Iraqi borders.”

The brief letter did not mention the US invasion of Iraq in 2003, which rested on erroneous claims of weapons of mass destruction and arguably contributed to its current instability, but stresses instead the country’s right to self-defence in the face of this new threat.

“The United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing Isil threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders,” it said.

The US also argued that there was legal right to pursue Isis inside Syria due to the weakness of that country’s government – a regime the US has been actively urging be undermined by rebel groups for much of the past two years.

“States must be able to defend themselves, in accordance with the inherent right on individual and collective self-defence, as reflected in article 51 of the UN Charter, when, as is the case here, the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks,” Power wrote.

The legal circumlocutions to avoid requesting a UN security council resolution match similar efforts to avoid requesting specific legal authority from Congress.

Fearing that US politicians up for re-election in November may balk at voting for a third military attack on Iraq and being sucked into a Syrian quagmire, the White House has avoided seeking a fresh authorisation of the use of military force, preferring to rely on early authorisations against al-Qaida granted after the 11 September 2001 attacks.

But this means arguing that Isis is equivalent to al-Qaida, even though the groups are split – logic that several critics in Congress, such as Virginia senator Tim Kaine, have argued is flawed and requires a fresh authorisation to fix.

Power reached for similar arguments in her letter to the UN, arguing that Tuesday’s separate attack on Khorasan rebels in Syria was also an act of self defence by the US due to the group’s closeness to al-Qaida.

“The United States has initiated military actions in Syria against al-Qaida elements in Syria known as the Khorosan Group to address terrorist threats that they pose to the United States and our partners and allies,” she wrote.

“Isil and other terrorist groups in Syria are a threat not only to Iraq but also to many other countries, including the United States and our partners in the region and beyond,” Power’s letter said.



Recent testimony by US intelligence and homeland security officials in Washington has acknowledged that Syrian groups such as Isis are not known to be planning any direct attacks on the US.



Earlier justifications for attacking Isis in Iraq rested instead on the argument that the US needed to defend its personnel in the country, even though many had been moved to the north of the country specifically to tackle the group.