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Home Articles posted by Dapo Akande & Marko Milanovic

The Constructive Ambiguity of the Security Council’s ISIS Resolution

Published on November 21, 2015        Author: 
Security Council Adopts Resolution on Fighting ISIL

UN Photo/Loey Felipe

On Friday, the UN Security Council unanimously adopted resolution 2249 (2015), condemning a series of recent terrorist attacks by Islamic State (IS, ISIS or ISIL). The text of the resolution, together with statements of Council members, is available here. This resolution was proposed by France and superseded two competing earlier drafts by Russia. The resolution determines that IS constitutes “a global and unprecedented threat to international peace and security.”

But the resolution itself is, perhaps, an equally unprecedented measure by the Security Council. The resolution is clearly designed to provide legitimacy for the measures being taken, and to be taken, against IS by giving the Council’s imprimatur to such measures. In particular, the resolution is worded so as to suggest there is Security Council support for the use of force against IS. However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against IS, the resolution does not actually authorize any actions against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq.

The main operative paragraph of the resolution is para 5, in which the Council:

“5.   Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;”

Before we attempt to decipher what this paragraph actually means, it is important to note that the resolution was not adopted under Chapter VII of the Charter. Or rather, the resolution does not use the “acting under Chapter VII” formula that is usually used to signal that the Security Council intends to take binding action, despite a couple of determinations in the preambular paragraphs about the existence of a threat to international peace and security, which (determinations) presumably are made under Article 39 of the Charter. In op. para. 1 of the resolution, the Council similarly “regards all such acts of [IS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

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