Published on November 22, 2015 | by LawNews
Prof. Julian Ku Quoted in The Fiscal Times and The Plain Dealer on Invoking Article V of NATO to Fight ISIS After Paris
3 Reasons France Hasn’t Asked NATO to Fight ISIS
By Rob Garver
The Fiscal Times
Nov. 17, 2015
“The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are),” he writes. “Invoking Article V should allow the U.S. to use armed force to assist France consistently with the U.N. Charter.
“That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the U.N. Charter. But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.”
After the ISIS attack on Paris, what responsibility does the United States have?
By Stephen Koff
The (Cleveland) Plain Dealer
Nov. 17, 2015
Whether NATO takes this up is to be seen. A number of U.S. leaders and political candidates, including Ohio Gov. John Kasich and Florida U.S. Sen. Marco Rubio, both Republicans who are running for president, have already urged that NATO act.
It’s not automatic: But France would have to ask, because Article 5 “doesn’t automatically trigger,” said Julian Ku, a distinguished professor of constitutional law and director of international programs at Hoftsa (sic) University’s law school. Still, if France asks, the authority is clear, scholars in law and international relations say.
Taking action: If Article 5 were invoked, that doesn’t mean all 28 NATO nations would have to act decisively or uniformly.The NATO treaty calls for each member nation to take “such action as it deems necessary.” That could mean committing troops, but it could also mean providing intelligence, arms or aircraft, or smaller measures to assist France, Ku said.
“As a formal, legal matter, our obligation is to help them defend themselves,” he said.
Asked if that could provide license to destroy ISIS, he said the United States and France are already targeting ISIS and might reason that destruction is in both nations’ interest. In interpreting the NATO language, “I just don’t think the treaty requires us to do that,” he said. But a requirement and a strategic desire are two different things — and France has in fact said it is committed to destroying the Islamic State.