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

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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.

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Jordan says

December 10, 2015

This is surely an artful interpretation, but not determinative, especially given the phrase "calls upon" and the logical conclusion that the Security Council can use such a phrase or any similar phrase to authorize continuous responsive force against ISIL. However, admittedly the important part of this interpretive puzzle will involve attention to actual patterns of subsequent practice and opinion juris about the propriety of that practice in relation to the resolution -- which your exposition is part of, and thanks.

Masoud Zamani says

December 10, 2015

A great post. Thanks Paulina. It is true that the 'unwilling or unable test' has this time around saved a lot of hassle over the legal basis for the military intervention in Syria. It is also true that this rather new form of collective self-defense has the potential to compensate for the deficiencies arising from applying the test of effective control in the situations of intervention by invitation/consent of the territorial government (as it has so far been the case in Somalia, Mali and Syria). However, its long-term repercussions are by no means known.

One wonders what the reaction of say France, Germany or the US, would have been, if Iran had exploited the 'unwilling or unable' test to target the leaders of the MEK in France. If the boundaries of this new approach to Article 51 are not carefully drawn, we are not but doomed to witness some serious legal catastrophes in a not so distant future.

Jordan says

December 10, 2015

p.s. "calls upon" is technically more binding than "authorizes" -- outside the context of the Charter:
the teacher called upon her students to turn in their papers vs. the teacher authorized her students to turn in their papers. Re: called upon, the teacher decided which measures shall be taken.

olivier corten says

December 12, 2015

Brillant post, thanks Paulina!

I totally agree with you (and many others): the SC did not authorize anything in its Res 2249, simply because the text does not mention any authorization, but also because a reading of the debates confirms that no State ever supported such an interpretation.

By contrast, I think that your interpretation is more speculative as far as self-defence is concerned. Res 2249 does NOT mention self-defence, or article 51. This is clearly significant, precisely because France (as the US and the UK) referred to this argument during the debates. If there had been an agreement about the relevance of this argument, we can reasonably think that it would have been reflected clearly in the text of the Res, as it was, for example, in SC Res 1368 (2001). A more convincing interpretation is thus that there was no agreement between the members of the Council about self-defence, and that the only way to obtain the (unanimous) vote was to abstain from mentioning it. Finally, reading the text in its ordinary meaning, the only conclusion that can be drawn is that the Council called upon States to act against ISIS in conformity with international law (and also, by the way, by respecting the sovereignty of Syria). This leaves the door open either to invoke self-defense IF founded on a sufficient legal basis or, and this is much more easy to argue in the case at hand, to base the military action on the (possibly implicit) consent given by the Syrian authorities.

But of couse, all this is a de jure reflexion about a possible evolution of the opinio juris of the SC Member States. De facto, you might be right: the SC did not take its responsibilities, and this is far from new. In the Yugoslavian as in the Iraqi precedent, the Council adopted resolutions after the launch of the military operations, but abstained from taking position about their (il)legality. In this sense, it could be considered that it legitimized them de facto…

Dr. Paulina Starski says

December 17, 2015

Dear Olivier,
thank you so much for your excellent and succinct comment! I think we are actually on the same page. I agree with you that the Security Council has not taken a clear legal position with regard to justifying operations against ISIL in Syria (self-defense or consent). It has not given the self-defense line of argument its unequivocal blessing. But: I still think that we have to acknowledge that most states fighting ISIL refer to self-defense. This is the relevant context that the resolution was adopted in. And the Council was obviously aware of this very fact.
Even if – or rather because – the Security Council tried to be ambiguous as possible, the resolution will be and is being used by the relevant actors as support for their legal line of argument. In light of the predominance self-defense narrative – which is not unproblematic at all –, the ambiguity of the resolution and the Security Council’s reluctance to take over responsibility (invocation of Chapter VII) will de facto strengthen the self-defense argument. This can clearly be seen in the comments of the French and US state representative right after the adoption of resolution 2249 (S/PV.7565, p. 2, 4). As usually in international law such de facto effects play a crucial role…