In April 2015, the Norwegian government sent 120 soldiers to Iraq . There, they were to “help train Iraqi security forces.” Some of the soldiers were stationed in the Kurdish provincial capital of Erbil under the security forces of the autonomous Kurdish region of northern Iraq (KRG). Other Norwegian soldiers were stationed in the capital Baghdad.

• What are the main rules of international law for military operations on foreign soil?
• What is the basis for the Norwegian military presence in Iraq from 2015?
• How does this presence stand against the rules of international law for the use of military force?
• What international law challenges does the presence face?

The Norwegian military will support the Iraqi central and regional authorities in recapturing territory from Islamic State (IS), which in 2015 controlled approx. 1/3 of Iraq. Norwegian participation is part of a loosely led American coalition with the goal of “crushing” IS.

The Norwegian presence in Iraq represents a break with the tradition of Norwegian military operations abroad after the year 2000. The presence also raises at least three challenges : uncertainty about what the mission is, insufficient legal certainty for the soldiers, and questions about whether the soldiers can perform their tasks so efficiently as provided.

2: International law: barriers to the use of military force in other countries

A central international agreement – the UN Charter ‘s Article 2 (4), non-interference court as a “cornerstone of the UN Charter” – and international legal custom prohibits the use of military force in interstate relations (power ban). Threats of such use of force are also prohibited.

Military use of force in the territory of another state violates the principle that every state is sovereign in its own territory. The prohibition on force also applies to the use of force against non-state actors in the territory of another state. However, the ban on power has two exceptions that can make military use of force in other countries legal: Chap. VII mandate and self-defense . In addition, another state may be invited by the government of a country to operate militarily in that country. Every sovereign government is free to do so.

3: Chapter VII mandate

One exception to the ban on power is military operations adopted by the UN Security Council . The Security Council may authorize (grant the right to) the use of military force under Chapter VII of the UN Charter if there is a threat to peace, a breach of peace or an act of aggression (Article 39 of the Covenant).

In addition, a resolution may clarify the legality of an ongoing military operation to which it has been invited. In 2015, the president of Yemen lost control of the capital and state-owned institutions. He then invited a group of states led by Saudi Arabia to help put down the rebels. Eventually, the Security Council confirmed that the President had the competence – stood strong enough – for such an invitation. Resolutions that confirm the legality of ongoing use of force do not change the basis of international law. The operation in Yemen is based on an invitation and not on a mandate from the Security Council.

A related clarification of legality can be found in the Security Council’s call from November 2015 for permission to use “all necessary measures” against groups in IS-controlled areas in Syria and Iraq to prevent terrorism.

The Chapter VII mandate nevertheless sets clear barriers to the use of force under international law . The operations must be carried out within the framework of the mandate. A Chapter VII mandate authorizes the use of all necessary means to achieve the purpose, but no more.

The use of force must also be proportional to the purpose of the use of force. Military operations for purposes that are outside the mandate or that are disproportionate to the purpose of the use of force, represent a violation of the prohibition of force . In Libya in 2011, removing Gaddafi’s regime (regime change) was not part of the mandate.

A state may not invoke the right to self-defense against military operations based on a mandate from the Security Council. The legality of the operations in Syria has been repeatedly disputed by the Assad regime . When Resolution 2249 confirms the legality of these, Assad can not claim that the operations are acts of aggression that trigger Syrian right to self-defense. The Security Council has stated that self-defense against IS (and certain other non-governmental groups) in Syria (but also in Iraq) is not contrary to international law.

4: The right to self-defense

The second exception to the ban on power is access to military operations for national self-defense (Article 51 of the UN Charter). A country thus has the right – individually / alone or collectively / together with other states – to defend itself against attacks contrary to international law. Other states can then assist in self-defense. The right to self-defense is triggered by an “armed attack”. Most states and international law lawyers have interpreted this exception strictly. In the case of collective self-defense, a country that has individual self-defense rights asks for help from other states.

Self-defense outside its own territory will not order the other UN countries to cooperate with other states, such as a Chapter VII mandate. Other states can then take a stand for or against the use of force or invoke neutrality. If the right to self-defense is confirmed by the Security Council, they must still comply.

Also in self-defense, military operations must be necessary (for defense) and proportionate . That is, the operations’ damage (scaling) must be in proportion to the purpose of the attack. When Israel attacked Lebanon after Hezbollah’s attacks on Israeli territory and a subsequent ambush in Lebanon in 2006, the operation was in line with Israel’s self-defense law. The purpose was to prevent similar future attacks. But the extent of Israel’s response was criticized by many, such as France, Russia, the EU and the United States, for being disproportionate to this purpose – and therefore contrary to international law.

The self-defense rules in Article 51 do not apply to a state power that exercises authority in its own territory, e.g. maintains or restores peace and order. Iraqi authorities can not invoke self-defense against Iraqi IS in Iraq. Here, it is the state’s right to exercise authority that is the hook under international law. International law does not give a state power the “right” to wage war against its own people when warfare is based on arguments about self-defense. This type of self-defense right also does not apply in occupied territory. Rules and barriers to what an occupying power can afford in the use of force differ both from self-defense against external enemies and from the rules on the exercise of power in one’s own country.

The situation in and around Syria and the lack of a Chapter VII mandate (cf. the use of the right of veto) has led to a number of allegations of self-defense for other states’ military use of force on Syrian soil: US airstrikes on Syrian territory began on 22 September 2014. The United States has stated several various self-defense bases for its operations on Syrian soil: Self-defense against IS, collective self-defense to safeguard the self-defense rights of Syria’s neighbors, self-defense against a non-governmental group and defense of US allied groups (insurgents) on the ground in Syria.

The right to self-defense is the most obscure of the legal bases for the use of force. The core consists of a basic right to self-maintenance. However, the vast majority of military operations can be presented as a version of self-defense. Therefore, international law has always sought a narrow framework for this exception to the prohibition of power. However, the right to self-defense seems to have been interpreted somewhat more broadly since 2001. The situation in Syria and Iraq also seems to push the states’ practice of self-defense even a notch further.

5: Invitation to military assistance

A third legal basis for the use of military force on foreign soil consists of an invitation or consent from state authorities in another country. These authorities then invite one or more other states to assist them in maintaining or restoring order internally, in practice to retain state power, defend the territory or to prevent the territory from being exploited by non-state actors for violence that may threaten national or international Safety.
This legal basis is no exception to the prohibition of power in the UN Charter. Such military operations have a background in the sovereignty of the inviting government . Thus, they do not violate the ban on power.

Government authorities may invite other states or non-governmental organizations to assist them in the use of force in their own territory. The Assad regime, which is thus the ruling power in Syria, can invite other states such as Iran and non-state actors such as Lebanese Hezbollah to assist the Syrian authorities with the use of force on Syrian territory. Russian soldiers in Syria have also been invited by the Assad regime.

However, if the use of force by invitation extends beyond the inviting state and into the territory of another sovereign state, the prohibition on force requires a decision by the Security Council. Iraqi forces or other states’ armed forces at the invitation of Iraq can not simply use military force against IS on the Syrian side of the border. It requires a different basis of international law.

Security Council Resolution 2249 provides a kind of “cloak of international law legality” for various types of military operations in Syria and Iraq.

An invitation must be clearly expressed . It cannot be assumed that the state would have consented “if it had been asked”. Other states may also question how real a consent is. In addition, the invitation must come from authorities that (still) are strong enough to be able to invite, e.g. still has central state-supporting institutions.

The Security Council can confirm whether the government in a country has the capacity to invite , as in Yemen, or it can cut off such a right. When the Security Council recognized the opposition in Libya as “the legitimate representative of the Libyan people” in 2011, Libyan authorities could no longer invite others to help them.

If the use of force by an invited state (the sending state) should affect the consent, the use of force is contrary to international law. If it can be characterized as an armed attack, it even triggers the consent state’s right to self-defense against the sending state (Article 51).

The purpose of the invitation will depend on what an inviting government wants, or the agreement between it and the sending state. Such agreements normally take the form of agreements on the legal status of forces (SOFA). They clarify the purpose of the military contribution, and they give military personnel criminal immunity for their presence and for actions that fall within the scope of the mission. It provides visibility and clarity (notoriety) to the outside world. And it provides security for the soldiers and predictability within.

6: Rules for the actual use of force

Even if the legal basis for an operation is in order, violations of international law can still occur as a result of the way the operations are carried out. The use of force must take place within the framework of the legal basis. Also: Is a military operation in accordance with the rules of international law for warfare – including the protection of war victims and the ban on using rules that prohibit certain types of weapons?

There are four different sets of rules in international law that set general barriers for different types of military operations, rules for:

• intergovernmental conflict
• occupation,
• non-intergovernmental conflict,
• for military operations in situations below the threshold of armed conflict

The first situation is governed primarily by humanitarian law (the Geneva Conventions and the Hague Conventions), the latter by human rights . Occupation and non-international conflicts are extensively regulated by both humanitarian law and human rights, but in different ways.

On a couple of important points, these sets of rules differ from each other, and impose different rights and obligations . Thus, the use of force that is legal under one set of rules may be a violation of international law under another. The use of expanding bullets or tear gas is, for example, permitted by law enforcement internally in a country, but if these means are used in combat, it will be classified as war crimes. Persons who have committed war crimes must either be prosecuted by their own authorities or extradited to states or courts abroad with the right to prosecute them. Furthermore, the demarcation between military targets and civilians is clearer under the first two sets of rules than in non-international conflicts / civil wars.

7: By invitation – Norway is in Iraq

In the summer of 2014 , IS conquered important strategic areas in northwestern Iraq. They declared an Islamic caliphate and committed massive war crimes against Iraqi soldiers and religious minorities, including the so-called Camp Speicher massacre . More than 1,500 Iraqi Shiite cadets and soldiers were executed by IS during one afternoon. Abuses against the Kurdish Yezidi minority received a lot of attention in the late summer of 2014, with acts that according to several may be genocide .

In the autumn of 2014, the Norwegian authorities decided to send military forces to military advice and training in Iraq. Norway is now contributing militarily to fighting IS. The mission will “help to better enable the Iraqi forces to meet the ISIL threat”. Norwegian personnel will not participate in military operations, but will be part of the military support apparatus for Iraqi security forces.

There is not any Chapter VII mandate from the Security Council which are entitled to Norwegian military presence in Iraq. After IS conquered parts of four Iraqi provinces and declared an Islamic State on Iraqi and Syrian territory in June 2014, the Security Council in August 2014 ruled that IS was a threat to Syria, Iraq, the Middle East and to international peace and security. But the Security Council has not adopted the right to use force under Chapter VII in extension of this, even though the Security Council has unanimously condemned IS ‘conduct.

On 24 September 2014, the Security Council decided in Chapter VII to order states to fight foreign fighters (Res. 2178). But it did not give the green light for the use of force against IS. The loosely organized US operation is mainly based on arguments about self-defense (see above) in the face of a serious threat to international security. The Security Council has established that IS is. Thus, it has clarified that states can invoke self-defense law even if IS is a non-state actor.

However, Norway has not stated self-defense for our presence in Iraq. Collective self-defense is derived from the right of self-defense to countries that are under attack and asking for help. Norway is helping Iraq (primarily) against Iraqis in Iraq. Norway can not claim to help Iraq to self-defense in Iraq as international law does not contain any self-defense rule for the exercise of power in its own territory. The Iraqi authorities, on the other hand, can state self-defense for operations on the Syrian side of the border, where Norway may assist based on collective self-defense, but then on behalf of Baghdad. The Norwegian authorities can thus justify their presence in Iraq by saying that they are there to help the regime retain state power. Operations in Syria will have the same justification.

With Resolution 2249 behind it , outside states can conduct military operations in Syrian and Iraqi territory. It clarifies that means of force can be used to prevent terrorist attacks by IS (and certain other groups) from the area that IS controls in Syria and Iraq. The resolution is not a UN mandate to operate militarily on Syrian or Iraqi territory without coordinating with the governments of Baghdad and Damascus. Iraqi authorities remain in the driver’s seat of operations in Iraq.

The UN Security Council confirmed the invitation and thus also the Iraqi authorities’ competence to invite. Iraq could need such confirmation as the situation was in Iraq in the summer of 2014. At that time, the Iraqi security apparatus went up in limbo in northern Iraq in the face of an advancing IS. In addition, Kurdish forces from Erbil occupied many controversial and strategically important places. When the invitation came, Baghdad practically controlled less than 40% of the land. The Security Council acknowledged that their numbers were not enough to defeat Iraqi government.

Iraqi authorities may impose conditions on the use of force on those invited, or withdraw their consent at any time. As early as October 2014, the Iraqi authorities stated that the letter to the Security Council in September had restrictions. “We asked for help, but it was about air force.” Among other things, Baghdad announced that neighboring Arab countries (read: Sunni Muslims) were not wanted on the ground in Iraq.

In August 2015, Iraqi authorities asked the Security Council to allow Turkish troops to leave Iraq, a demand Iraq repeatedly made in the fall of 2015. Iraqis do not consider ground forces from countries in the region to be covered by the Security Council’s request.

Outside this requirement is neighboring Iran, which has a separate defense agreement with Iraq. It gives Iranian soldiers the right to operate on Iraqi soil. Iran has also carried out airstrikes against IS in Iraq since December 2014, independent of the international coalition. The close military cooperation between Iraq and Iran means that Iran has a different and broader mandate for its presence in Iraq.

It is thus not obvious that the Norwegian military in Iraq is covered by the invitation Iraq handed over to the UN Security Council in September 2014. According to the Iraqi authorities, the request only includes air force . But it is not air force Norwegian soldiers in Iraq are engaged in. The legal basis for the Norwegian military presence in Baghdad is an invitation , in Norway’s view. What this invitation entails is very unclear . Norwegian soldiers have been invited to Iraq to take part in an air offensive against IS, an air offensive in which they are not participating.

8: Counters at the legal basis

As with the Norwegian operation in Iraq in 2003–2005, no special Norwegian restrictions were placed on military participation in 2014 – except that «Norwegian forces will not participate in direct combat operations».

However, there is a big difference between Norway’s Iraq operations in 2003–2005 and in 2015. In 2003–2005, there was a clearer organization and a much clearer legal basis (see below). When the international law basis for military presence in a foreign country is weak, unclear or controversial, it becomes all the more important with clear agreements that regulate the nature of the mission and the situation of the soldiers.

Invitation as a legal basis is usually regulated in more detail by a defense agreement. The United States has a political agreement, and Iran has a defense agreement with Iraq. Norway does not have that.

GENERAL RULES: If the legal basis and the nature of the assignment is somewhat unclear, the general rules of international law apply. Since the summer of 2013, the Iraqi authorities have been involved in a civil war-like situation against Sunni Muslim areas, ie the same areas where IS eventually took control.

The term “non-international conflict” is not limited to armed conflicts that take place only in the territory of one country. The fight against IS extends over two countries, and involves more than 60 nations on one side and a non-state actor on the other.

Iraq is today neither in a situation of occupation nor in an international armed conflict. Here, the rules of a country’s sovereign law enforcement and internal armed conflicts apply.

This means that the rules of humanitarian law for non-international armed conflicts apply to Norwegian soldiers to the extent that they have a military function linked to one of the parties to the conflict.

9: Norway in Iraq: Three challenges

Since the turn of the millennium, Norwegian soldiers have been involved in several military operations on foreign soil. Many of them have not been UN operations in the sense of peacekeeping operations (after the ceasefire agreement has been reached) under the UN mandate – Afghanistan (2001–2016), Iraq (2003–2005) and Libya (2011). All three operations were launched following a mandate from the Security Council.

After the year 2000, Norway has had clear legal bases for its military foreign operations. But Norway’s military contribution to Iraq from 2015 represents something new . The backing of international law for Norway does not seem controversial, since the Iraqi authorities do not consider Norwegian soldiers to be enemy soldiers, as they do with certain other coalition countries. Nevertheless, the invitation appears to be deficient . It does not provide clarity (notoriety) about the purpose of the contribution or framework around the activities of Norwegian soldiers in Iraq in 2015.

By invitation to assistance, we lend military capabilities to another state. A recipient state will normally have other motives and interests than ours. And it will probably be involved in power struggles and conflicts that are beyond the control of Norway, but where we can still be drawn in. Consequently, it is important to have a clear framework for such lending. The somewhat vague basis of international law for Norway’s military contribution to Iraq therefore represents challenges on three levels:

1 Around notoriety – it is difficult to prove purpose, document or control who has done what and when. There is neither a UN mandate nor a self-defense authority for the contribution. No defense agreement or SOFA (agreements on forces’ legal status status of forces agreements, SOFA) has been negotiated that can clarify the purpose of the mission.

Why has Norway sent troops to Iraq? At home, it can be important to clarify what Norwegian soldiers do on land far away, including with atypical, perhaps dubious, partners. To other countries, it may be appropriate to clarify why troops have been sent to Baghdad to help a coalition that works closely with the military in Tehran, Damascus and Russia. Also: Can soldiers we train in Baghdad want to use their new military skills to fight soldiers we train in Erbil?

2 Norwegian soldiers’ legal security . Norwegian soldiers in Iraq are so-called administrative employees at a diplomatic post (embassy) Norway does not have. The agreement between Norway and Iraq is not very specific. Diplomatic immunity does not include the right to engage in military activity practiced by soldiers. The legal protection of Norwegian soldiers in Iraq does not match the tasks they have or the conflict landscape in which they operate.

3 Efficiency of the operation . How effectively can Norwegian soldiers carry out their mission when assisting security forces that have reportedly been involved in many and serious violations of international law? How effectively can they operate in one of the world’s most corrupt countries, which is also struggling with major disciplinary challenges in the security apparatus?

According to THEMAKEUPEXPLORER, a small country like Norway will always have a strategic interest in respecting international law. Then it is important that the use of military force in foreign operations appears – at home and abroad – as predictable, predictable and even principled.