WASHINGTON – The ISIS attack in Paris has prompted some Republican candidates and others to call for France to invoke Article 5 of the NATO charter, which regards an armed attack on one member as an attack on all of the alliance's 28 members.
But invoking Article 5 is not a simple process, and it's only been done once.
French President Francois Hollande has declared “a state of war” exists between France and ISIS, whose self-imposed caliphate occupies portions of eastern Syria and western Iraq. But he has not activated the provision.
Article 5 of the 1949 North Atlantic Treaty states, in part, that the parties "agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all."
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Consequently, the members "agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”
The initiative to carry out the provision of Article 5, however, first requires invoking Article 4, under which a council of all 28 NATO members must approve military action.
Such a NATO council meeting has not yet occurred.
The only time the two NATO provisions were invoked was after the Sept. 11, 2001, terrorist attack on the United States.
While last Friday's terrorist attack in Paris was an “armed attack” on a NATO member, legal issues have arisen which have not been fully vetted.
'Crusader' alliance
In October 2001, when the U.S. bombed Afghanistan to go after al-Qaida following 9/11, the Taliban governed the country and refused to turn over the al-Qaida leadership. As a result, the U.S. and NATO began to launch attacks on the governing authority of Afghanistan.
However, ISIS is a terrorist organization, not a nation-state, even though it has seized control of territory in Syria and Iraq the size of Britain.
A former CIA operative, who requested anonymity since he still does contract work, told WND that invoking Article 5 as a legal justification for U.S. involvement in bombing ISIS could be exploited by the terrorist group for propaganda, portraying the “Western, Christian” alliance as a “crusade” against Islam.
In some Islamic quarters, he said, such a portrayal could be a rallying cry to arms.
He said the ISIS threat in the wake of the Paris attack to launch attacks in American cities, particularly Washington, D.C., would provide all the legal justification the U.S. would need to declare war on ISIS.
Use of Article 5 as a justification, however, has raised legal issues.
“Some scholars and jurists contend that it isn’t possible for a nation-state to be in a true state of war with a private terrorist organization,” Ilya Somin, a professor of law at George Mason University in Northern Virginia outside Washington, D.C., said in a blog.
"Even if this is correct, by this point, ISIS qualifies as a state-like entity, having seized control of large portions of Syria and Iraq,” he said. “In any event, the NATO treaty applies to all ‘armed attacks’ on the signatories ‘in Europe or North America,’ regardless (whether it qualifies) as a war or not.”
In addition, there may be a U.S. constitutional issue. As Somin points out in his blog, Article VI of the U.S. Constitution states that treaties are the “supreme law of the land,” making Article 5 applicable in this case, since it was a treaty ratified by the U.S. Senate.
Somin said that the Obama administration may be reluctant to invoke Article 5 as a justification, since it never did so to bomb ISIS last year, making continued airstrikes technically “illegal.”
A similar argument of “illegal” military action can be made when Obama launched airstrikes into Libya in 2011. He neither sought congressional approval nor invoked Article 5, since Libya had not attacked any NATO member.
“The president’s failure to get congressional authorization for the wars against ISIS and Libya is not just a purely legal problem,” Somin said. “In addition to creating terrible precedents for the future, it also has made it more difficult to build the kind of political consensus needed to wage war effectively.”
Republican presidential candidates Gov. John Kasich and Sen. Marco Rubio have called for invoking Article 5 to assist France, but they have been silent on the domestic constitutional rationale for bombing ISIS in the first place.
France, however, may not need to invoke Article 5, since it already has launched attacks on ISIS’ self-proclaimed caliphate capital of Raqqa in Syria. In addition, Hollande has called for the U.S., Russia and Iran to join France in waging war on ISIS.
Ally with 'traditional adversary'?
Retired U.S. Navy Admiral James Stavridis, a former NATO supreme allied commander, underscored Russia’s participation with NATO in a recent Foreign Policy article.
In calling for invoking Article 5, he said any effort should also include an “open coalition,” which would include not only NATO members but “also those of NATO’s traditional adversary, Russia.”
“The Russian government clams to want to defeat the Islamic State, and it should have no lack of motivation, given the over 200 dead citizens, including many women and children, who seem to have been massacred by the Islamic State in the downing of a civilian aircraft just two weeks ago,” the admiral said. “Russia should be invited to participate alongside NATO and other coalition members against the Islamic State.”
International law scholar Julian Ku, however, is concerned that invoking Article 5 may not be sufficient justification for additional U.S. intervention against ISIS without congressional authorization.
“The Obama administration’s current domestic legal justification for the war against the Islamic State is sketchy at best,” Ku said.
Ku pointed out that Article 11 of the North Atlantic Treaty suggests implementation of the treaty, including Article 5, would need to be carried out “in accordance with their respective constitutional processes.”
“If you are someone who believes that Congress must authorize the use of force by the president in most cases, then this language would mean that the president has to go back to Congress,” Ku said.
Even international law experts tend to disagree on the interpretation of Article 11, since Somin said he remains “unconvinced” that prior congressional approval is needed if Article 5 is invoked, since the U.S. has already ratified the North Atlantic treaty.
Somin, however, believes that there should have been prior congressional approval when the U.S. bombed Libya in 2011 and began airstrikes on ISIS last year.
When the U.S. was attacked on Sept. 11, it was a direct attack on the U.S., and the president had the legal authority to use force without prior congressional approval. Somin believes that the “proper invocation of Article 5, should France call for assistance, gives the president the same authority to use force as if there were a direct attack on the U.S.