JURIST Contributing Editor Michael Kelly of Creighton University School of Law argues that France has the legal right to invoke Article 5 of the North Atlantic Treaty following the Paris ISIS attacks…

Following the collapse of the Ottoman Empire after the First World War, Syria was a French mandate from 1923 to 1946. The deal struck between Paris and London, known as the Sykes-Picot Agreement, divided up power and influence in the Fertile Crescent region between France and Britain. The British basically got what is now Iraq and Kuwait, and France got Lebanon and Syria. The map to the right depicts “Zone A” under French control which forms the core of modern-day Syria. The French have long held fast to the prerogative to return to former French possessions via military incursion when necessary to “set things right.” In recent times, this has included military intervention in Mali, Cote d’Ivoire,and the Central African Republic. Now, that list may include Syria.

But the French may not be going alone. In the wake of the November 13, 2015 ISIS-coordinated attacks in Paris that killed over 100 people in at least half a dozen sites, France has the legal right to invoke Article 5 of the North Atlantic Treaty. This pivotal article describes the casus foederis, case for alliance, as coming into play when one of the allied states is attacked. Literally, it means that an attack against one of the NATO allies is considered an attack against all. The language of Article 5 is clear:

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 and consequently they 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.

Article 5 has only been invoked once in NATO’s 66-year history. The date was October 4, 2001. That was when NATO confirmed the request by the US for a collective NATO response after the September 11, 2001 al Qaeda attacks on the US homeland. Several operations were authorized in support of the invasion of Afghanistan that followed and NATO officially took control of the International Security Assistance Force (ISAF) in 2003. France was in the forefront of these operations, providing ground troops and air support.

It is unclear if France will decide to trigger this legal obligation like the US did. President Hollande has put France on a war footing and declared in a joint session of the French parliament that he will “destroy” ISIS as he requested an extension of his emergency powers. The terrorist attacks in Paris on November 13, like the terrorist attacks in the US on September 11, were executed by non-state entities. The US-led NATO response resulted in an extensive air campaign followed by a full-scale invasion, occupation and a decade-long semi-successful nation-building exercise. A French-led NATO response in Syria is not likely to follow that pattern, but it could. Intensified French airstrikes are already underway utilizing US targeting intelligence.

After the French went loyally with us into Afghanistan after September 11, it would be difficult for the US to avoid going into Syria with France if it so chose. NATO of course would be the ultimate arbiter of what actions it would take, but the reality is that while French military power is significant on its own, it is also significantly enhanced with NATO support—both in terms of force projection and support. France knows this, and could well decide that this moment, unlike the moment following the Charlie Hebdo ISIS attacks in January 2015, is the moment to trigger Article 5.

That said, while ISIS operates throughout large swaths of Syria and Iraq, it does not do so in isolation. Also on the ground are Kurdish forces friendly to the US that must be avoided as well as Syrian rebel forces seeking to topple the government of Bashar al-Assad—still clinging to power along the western coast. And there is Russia. Only recently inserted in this chaotic theatre of combat, Russia has secured bases in Assad-held territory and is actively bombing both the rebels and ISIS. Although Russia and the US have undertaken “de-confliction” measures to stay out of one another’s way in Syria, close encounters have occurred and Russian planes have repeatedly violated Turkish airspace. Turkey, also a NATO ally, has not yet suffered direct attacks sufficient enough to trigger a similar Article 5 invocation.

The US views Russian involvement in Syria with both suspicion and quiet alarm. The French, however, may not. Paris may in fact see this as a diplomatic and military opportunity to re-engage Russia and NATO in a positive manner. Since the second term of President George W. Bush, relations between Moscow and Washington soured. This affected the NATO-Russia relationship negatively. After the Cold War, Russia and NATO entered into a dialogue that lead to creation of the NATO-Russia Council, which began an institutionalized partnership of sorts that lead eventually to joint exercises. But the American pivot away from Russia by unilaterally abandoning the Anti-Ballistic Missile (ABM) treaty to pursue a strategic missile defense initiative provoked the slow unwinding that reached its nadir with the Russian invasion of Georgia in 2008. NATO military upgrades in Eastern Europe fed into President Putin’s rhetoric about NATO encirclement of Russia, and the Russian annexation of Crimea and invasion of Ukraine in 2014 appeared to finally cement a permanent break.

On April 1, 2014, NATO suspended “all practical civilian and military cooperation between NATO and Russia.” By opening a dialogue with Moscow, which announced last week its desire to begin a constitutional conversation among all non-terrorist parties in Syria, balancing its ongoing communication with Washington, and asserting its legal right of collective defense with Brussels under the North Atlantic Treaty, Paris could be in a unique position to restart the NATO-Russia engagement while simultaneously delivering a body blow to ISIS and brokering a peace process for Syria. Since Russia has discovered ISIS involvement in the bombing of its Metrojet Airbus A321 over the Sinai that killed all 224 people on board last month, it has decided to coordinate Russian airstrikes against ISIS with France. As a next diplomatic step, Paris could host the constitutional conference called for by Russia even as it helps lead the war effort in Syria as a joint NATO-Russia coordinated assault. To accomplish such a feat, the US would have to be persuaded to abandon its red-line of Assad’s continuing involvement in a future Syria. Whether President Obama is persuadable on that point is an open question, but President Hollande and the French will never have more legitimacy than they do right now to try.

Michael J. Kelly is Associate Dean and Professor of Law at Creighton University School of Law. He has consulted with the Kurdish government on their constitution and is the author of the book “Ghosts of Halabja: Saddam Hussein & the Kurdish Genocide” (2008) and the article “The Kurdish Regional Constitution within the Framework of the Iraqi Federal Constitution: A Struggle for Sovereignty, Oil, Ethnic Identity, and the Prospects for a Reverse Supremacy Clause” in vol. 114:3 of the Penn State Law Review (2010).

Suggested Citation: Michael Kelly, France May Invoke NATO Article 5 In Wake of Paris ISIS Attacks, JURIST – Academic Commentary, November 18, 2015, http://jurist.org/forum/2015/11/michael-kelly-france-nato.php.