“Legitimized Self-Defense” – Quo Vadis Security Council?

I submit that United Nations Security Council (UNSC) resolution 2249 (2015) is – at least de facto – another step towards a reconfiguration of the UN collective security system. The call upon UN members to take “all necessary measures” has to be seen in the context of the self-defense narrative employed by most states forming the “Global Coalition to Counter ISIL” to justify their operations. Irrespective of the resolution’s ambiguity, it is hardly doubtful that it de facto yields a legitimizing effect for this narrative, inevitably endorsing it – even if the term “self-defense” is not mentioned once. Against this background, it seems that the UNSC actually assists in installing self-defense measures as a substitute for collective action under Chapter VII of the UN Charter (UNC). This recalibration of the UNSC’s role in the context of the use of force deserves a second thought. Self-defense is – irrespective of the legality of its invocation in specific cases de lege lata – hardly the right tool to deal with the global and permanent threat of terrorism.

As has already been excellently illustrated by Dapo Akande and Marko Milanovic, the resolution’s main characteristic is its ambiguity (see EJIL talk! Blog). Its vagueness is obviously the result of political necessities and compromise. In my view, however, interpreting the resolution from the perspective of an objective observer, it is clear that the UNSC did not authorize measures based on Art. 39 et seq. of the UNC. It is true that the term “necessary measures” is generally connoted with the authorization of force. It is likewise true that the preamble of the resolution which classifies “terrorism in all forms and manifestations” as “threats to international peace and security” alludes to the wording of Art. 39 UNC. But any “authorizing” tenor is neutralized by the clauses “calls upon” and “in compliance with international law, in particular with the United Nations Charter […].” The UNSC neither authorizes nor decides. It is generally acknowledged that an authorization within Chapter VII of the UNC requires explicit wording – a requirement the resolution (deliberately) does not meet. The call upon the members to “eradicate” ISIL safe havens, however, implies the use of force. Since the UNC establishes a comprehensive ban on the use of force, only self-defense or consent remain as justifications for military operations against ISIL within Iraq and Syria outside of a UNSC authorization.

So to put the resolution’s message in a nutshell: States are called upon to use force against ISIL by exercising their right to self-defense if its prerequisites are given or to urge states hosting ISIL to give their consent to armed operations on their territory if self-defense cannot be invoked. To this extent it could be argued that the resolution says nothing, but merely refers to the law as it stands. Neither does it authorize the use of force nor does it give the self-defense narrative of the “Global Coalition” unequivocal blessing. But this is only true if the context of the resolution is not also taken into account.

Although silent on self-defense, UNSC resolution 2249 still serves as a reinforcement of the main narrative of the “Global Coalition”: The UNSC has chosen wording that allows its resolution to be interpreted as an affirmation of ongoing self-defense operations. And states understand it that way: France stated after its adoption that the UN represented:

“the primacy of law and collective security. It is therefore to the Security Council that the President of the Republic has naturally turned to organize and mobilize our international action. […] The resolution frames our action within the framework of international law and in respect for the Charter of the United Nations, which is our common good […]. In the view of France the resolution creates „conditions for international mobilisation”.

Still it founded its actions on individual self-defense (S/PV.7565, p. 2) (which is problematic in itself). The USA implies in its statement that it is already fulfilling the call of the UNSC with its self-defense operations (S/PV.7565, p. 4). As Marko Milanovic already elaborated, the United Kingdom is using resolution 2249 to reinforce its self-defense claim without interpreting the resolution as providing a separate legal basis. The recent reaction of the German government is also quite significant (see comment by Anne Peters): Its constitutionally required request for parliamentary consent for the deployment of the German Federal Army within operations against ISIL found the support of a broad majority on 4 December. The German government refers to Art. 51 UNC (collective self-defense) explicitly in conjunction with UNSC resolutions 2170 (2014), 2199 (2015) and 2249 (2015) as the international legal basis for its engagement. The written opinion of the Academic Commission of the German Parliament is also enlightening, and the Government obviously heavily relied upon it (WD 2 – 3000 – 203/15). Therein it is argued that resolution 2249 allowed states to invoke self-defense against ISIL and conduct operations on Iraqi and Syrian territory without the consent of these states (WD 2 – 3000 – 203/15, p. 15). It goes on by contending that the UNSC seems to have discharged states from relying on the contentious concept of “preemptive self-defense“ by stressing the permanent threat ISIL poses (p. 15). Hence, the self-defense narrative of major players in the fight against ISIL is de facto strengthened. Russia’s insistence on Syrian consent as the legal basis for its operations hardly diminishes this effect.

The role that the UNSC attributes to self-defense in the fight against threats to peace is not entirely clear. In the past it did directly refer to Art. 51 UNC in its resolutions. Resolution 661 (1990) classified the Iraqi attack against Kuwait as an “armed attack”. In other contexts its reference was more reserved. With regard to 9/11 it recognized “the inherent right of individual or collective self-defence in accordance with the Charter” in the preamble of resolution 1368 (2001). However, it avoided qualifying the attacks on US territory as “armed” and merely spoke of a “terrorist attack”. It reaffirmed the right to self-defense again in resolution 1373 (2001). While the reference to self-defense in resolution 661 arguably provided legal certainty, the effect of its reference in resolutions 1368 and 1373 was rather the opposite. It raised even more questions and invigorated the debate on the scope of Art. 51 UNC. However, in the end the self-defense narrative undoubtedly profited from it.

This strategy of de facto “legitimizing” self-defense is problematic for two reasons. First of all, the UNSC may obviously interpret Art. 51 UNC and contribute to its dynamic evolution. However, it may not amend it. By including ambiguous references to self-defense in resolutions dealing with situations in which the application of Art. 51 UNC is contentious, the UNSC touches upon the thin line between evolution and amendment. The same is true for the adoption of resolutions calling upon the member states to use force (reflected in resolution 2249 by the term “eradicate”) against the background of their ongoing operations, which they contentiously label as self-defense measures. Secondly, one effect of resolution 2249 seems to be that self-defense factually takes the place of collective action, thereby disrupting the categories of the UNC – with the blessing of the UNSC. Self-defense does not depend on UNSC authorization. By allowing self-defense “until the Security Council has taken measures” Art. 51 reflects the UNSC’s principal position regarding exemptions from the ban on the use of force, reinstates the monopolization of coercion by military means within the UNSC and expects it to step in. The UNSC has the competence to address terrorist threats stemming from “unwilling or unable states” by authorizing military law enforcement based on Chapter VII UNC. There is a good reason why the right to self-defense only exists until the UNSC takes action: self-defense is an extraordinary, interim and subsidiary measure and not a long-term, coordinated solution. The mere legitimation of self-defense is distinct from authorizing force: in the first case proactive states decide on an exemption from the ban on the use of force, in the second this decision remains with the UNSC. We might be witnessing here the rise of “legitimized self-defense” as a regularly employed means of the UNSC to address (terrorist) threats to peace. While this might be a viable approach in those moments where no consensus on Chapter VII UNC measures is reachable, second thoughts should be given to its long-term repercussions.