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Home EJIL Analysis How the Ambiguity of Resolution 2249 Does Its Work

How the Ambiguity of Resolution 2249 Does Its Work

Published on December 3, 2015        Author: 

Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.

When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”

Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:

It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.

And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)

In yesterday’s debate, the motion tabled before Parliament similarly did not specify what precise legal effects the resolution has (see here, para. 2), while in his opening statement the Prime Minister merely said that “We have taken legal advice. We have a unanimous United Nations Resolution.” The resolution did however figure prominently in the speeches of some of the most influential participants in the debate (the Hansard record of the whole thing can be found here). For example, the leader of the opposition, Jeremy Corbyn, noted (correctly) that “UN Security Council resolution 2249, passed after the Paris atrocities and cited in today’s Government motion, does not give clear and unambiguous authorisation for UK bombing in Syria. To do so, it would have had to be passed under chapter 7 of the UN charter, to which the Security Council could not agree. The UN resolution is certainly a welcome framework for joint action to cut off funding, oil revenues and arms supplies from ISIL, but I wonder whether there are many signs of that happening.”

Others, like the former Labour foreign secretary Margaret Beckett, stated that the “that resolution calls on member states in explicit and unmistakable terms to combat Daesh’s threat, and I quote, “by all means”. And it calls to – again I quote – for us to “eradicate the safe haven they have established in Iraq and Syria”. Those are the words of the UN resolution.” A similar sentiment was echoed in what is widely regarded to have been the most powerful speech of the whole debate, that of Hilary Benn, the shadow foreign secretary, who supported the intervention (the text of his speech is available here, while the video (which bears watching in full) is here):

We now have a clear and unambiguous UN Security Council Resolution 2249, paragraph 5 of which specifically calls on member states to take all necessary measures to redouble and co-ordinate their efforts to prevent and suppress terrorist acts committed specifically by Isil, and to eradicate the safe haven they have established over significant parts of Iraq and Syria. So the United Nations is asking us to do something. It is asking us to do something now. It is asking us to act in Syria as well as in Iraq. And it was a Labour government that helped to found the United Nations at the end of the Second World War. And why did we do so? Because we wanted the nations of the world, working together, to deal with threats to international peace and security – and Daesh is unquestionably that. So given that the United Nations has passed this resolution, given that such action would be lawful under Article 51 of the UN Charter – because every state has the right to defend itself – why would we not uphold the settled will of the United Nations, particularly when there is such support from within the region including from Iraq. We are part of a coalition of over 60 countries, standing together shoulder-to-shoulder to oppose their ideology and their brutality.

Calling this particular resolution “clear and unambiguous” is, with respect, a real howler. But nonetheless we can see how the ambiguity of the resolution also did its magic in internal UK politics, and not just on the international plane – I very much doubt that without it the Prime Minister could have obtained the necessary majority for the air strikes, or even if he did that majority would have been slim indeed.

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10 Responses

  1. Marko,
    I echo you sentiments entirely having listened to much of the debate. I commented on another post that the range of legal bases referred to strayed as far as Art 5 NATO (Kevin Foster).

    For completeness, I think a good number of MPs did describe a form of self-defence (eg Kier Starmer, former DPP) although they often conflated this with the resolution itself (Stephen Doughty).

    Finally the comments of Dominic Grieve, former AG, are noteworthy given his experience and insight into the relationship between the PM and AG (although possibly conflating jus ad/jus in).

    “The legal basis for intervention is very limited: every action that is taken hereafter will have to be necessary and proportionate to achieve a legitimate aim that is severely circumscribed. I have every confidence that…the Law Officers will be able to deal with that, and… my colleagues in the Government will observe the limits.”

  2. Dapo Akande

    Readers may be interested in seeing the briefing note on the Legal Basis for UK Military Action in Syria which was written by the House of Commons Library for Members of Parliament in advance of the debate and is available here

    I am pleased to see that the post by Marko and I got a lot of attention in the briefing.

  3. Alessandra Asteriti

    Marko, I note that you make no reference to France anywhere; but a form of ‘collective self-defence’ requiring the UK to come to the aid of France after the terrorist attacks in Paris, which Hollande defined as an ‘act of war’ was quite prominent during the Commons debate, as a quick search through Hansard, for those who did not follow them yesterday, will reveal. I should also note that the ‘ungrateful’ French do not seem to have expressed any thanks yet for the UK’s participation in this useless military adventure, while the US already have.

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  5. Heiko

    Well, as far as the memorandum is concerned, I have problems with the legality of an intervention without any at least tacit consent of Assad. He is the president of the “safe heavens”. Do the moderate rebels have any “justa causa” for the “liberation” of cities? Is it necessary for the fight against ISIS to shoot on Syrian policemen? Europe should ask them to make peace with Assad. This would make the war against ISIS much easier and they could become generals. Isnt this covered by that resolution too?

    H.

    any

    support of moderate rebels. Do they have any “justa causa”? To support civil society whereever it exists may be a good idea but

  6. […] Resolution 2249, a distinguished professor of international law at Nottingham wrote in his article entitled “How the Ambiguity of Resolution 2249 Does Its Work” the following conclusion: […]

  7. […] on the website of the European Journal of International Law, Dr Marko Milanovic states that Jeremy Corbyn was correct to note during his own contribution to Wednesday’s debate that […]

  8. […] una y otra vez con relación a la resolución 2249, un académico de Nottingham escribió este artículo titulado “How the Ambiguity of Resolution 2249 Does Its Work”, llegando a una conclusión que […]

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  10. […] Resolution 2249, a distinguished professor of international law at Nottingham wrote in his article entitled “How the Ambiguity of Resolution 2249 Does Its Work” the following conclusion: […]