Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

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On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. For instance, the Council may determine which state is the author of an armed attack and which state is the victim, as happen in Korea and Kuwait. It may determine that self-defence applies to a particular situation, as it did in relation to 9/11. Or it may determine that self-defence can no longer be relied upon, for instance when the Council sought to terminate the Iran-Iraq war.

Distant Self-defence

In this case, the Council has performed an extraordinary manoeuvre. Previously, the armed actions of external states in Syria relied on an invitation by the Syrian government (Russian Federation) or Iraq (Western states) respective. More recently, however, some external states have started to invoke their own right to self-defence, rather than relying on the consent of another government.

Turkey made such an argument in July 2015, when invoking self-defence against ISIL (DAESH) in the context of limited cross border operations in Syria. It did so by affirming that ‘Turkey is under a clear and imminent threat of continuing attack by Daes.’ (S/2014/695, 23 September 2014). This argument was a traditional one, claiming self-defence in view of future, imminent, continuing attacks from within the theatre of operations.

But in view of the global reach of terrorism, could states outside of the immediate region of the conflict also directly invoke their own right of self-defence to justify operations in Syria? Obviously, this question poses itself after the events of Paris, but it is not a new question.

In 2014, Washington invoked self-defence against Khorasan, a group in Syria close to al-Qaida ‘to address terrorist threats that they [sic] pose to the United States and our allies’. A year later, the UK acknowledged a drone strike against Reyaad Kahn and two others in Syria. It argued that the air strike ‘was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom’ (S/2015/688, 8 September 2015). According to the submission to the Security Council, the target had been ‘actively engaged in planning and directing imminent armed attacks’ against the UK. Once again, the argument was a traditional one, referring to an immediate threat of an armed attack.

Broad claims to Self-defence

France had initially been reluctant to join the US and others in attacking ISIL in Syria. However, in September 2015, the French air force launched an attack against a Syrian ISIL training camp.  At the level of the Security Council, France asserted that it had taken action in accordance with Article 51 of the Charter ‘in response to attacks carried out by ISIL from the territory of the Syrian Arab Republic’ (S/2015/745, 9 September 2015). It was not clear whether this referred to attacks against Iraq or France.

Outside of the Council, the French President invoked a string of past terrorist attacks against France with an apparent Islamic background, culminating in the attacks against the staff of the satirical magazine Charlie Hebdo. France argued that ISIL constituted a direct threat to French national security and that self-defence was directly available to France available in consequence. This was rather a broad claim, going beyond the position of other Western states in that there was no argument concerning indications of imminent future attacks.

Sadly, the Paris attacks have validated this claim, leading to a significant intensification of French operations in Syria. Indeed, French President Hollande has re-awakened the language of a war on terror, asserting that France is in fact at war with ISIL and terrorism and arguing in favour of cooperation among key states, including Russia.

President Putin, too, has offered an argument which suggests that it is preferable to fight ISIL in Syria now rather than ‘to wait for them to come to our home’ at a later point. This seems to go into the direction of a broad right of self-defence. In fact, this language is reminiscent of the famous 2002 US national security strategy and its emphasis on preventative and preemptive action.

Permanent Imminence of the Threat

The UN Security Council has now taken an extraordinary step. Resolution 2249 (2015) confirms in view of the outrages committed in Sousse, in Ankara, over the Sinai, in Beirut and in Paris that ISIL has ‘the capacity and the intention to carry out further attacks’.

This declaration represents a very important, albeit risky, application by the Council of its powers even when acting outside of Chapter VII of the Charter. It affects the application of the right to self-defence of states wishing to rely on their own right to self-defence, rather than a right derived from Iraq or from Syrian consent. In confirming that ISIL represent a permanent and active threat of further attack, the Council appears to relieve individual states from having to fulfil the criteria for self-defence when considering armed action in Syria.

It is no longer necessary to demonstrate that they are acting in response to an actual or imminent armed attack and in a situation of instant and overwhelming necessity leaving no choice of means and no moment of deliberation. The Council has considered ISIL’s recent track record of attacks and concluded that it is safe to assume that there will be further such attacks, both in terms of capacity and intent.

Global war on ISIL and other Groups?

Who is entitled to benefit from this pronouncement and invoke self-defence under such liberal conditions? The Council’s finding applies ‘even to those far from conflict zones’ given the ‘global and unprecedented threat’ posed by ISIL (see of preambular paragraphs of Res. 2249). Essentially, therefore, it applies to all states.

The geographic scope, or authorized theatre of operations for action against ISIL is not entirely clear. On the one hand, the unprecedented threat stemming from ISIL is deemed a global one. Hence, it might be argued that it is now permissible to engage ISIL wherever it may exist, in accordance with the controversial war on terror thesis. A more limited interpretation would focus on Operative Paragraph 5 of the resolution and argue that ISIL can only be engaged under the terms of the resolution in the territory under the control of ISIL in Syria and Iraq. In that case the Russian Federation might assert that there is an ongoing right of self-defence against ISIL in Iraq and take action there.


Resolution 2249 (2015) is undoubtedly meant to emphasize a global commitment to defeat terrorism, and in particular ISIL, al-Nusra and other terrorist groups operating in Iraq and Syria. In identifying this issue as an unprecedented threat to the peace and to all states, the Security Council has exercised a part of its collective security function. In identifying ISIL, al-Nusra and potentially other groups specifically as the common enemy of all mankind it has also acted in a collective security mode.

However, despite employing the language of collective security, the Council was unable to take collective, Chapter VII, action to engage that global threat forcibly. Russia insisted that any action should respect international law and the UN Charter. In that way, it sought to preserve its control over further action that might be taken by the Council, and the claim of the Assad government that any use of force would require its own consent and coordination with its officials.

In reality, this reluctance has opened up a pandora’s box of potential claims to the use of force in Syria and possibly Iraq. This is because the resolution offers an authoritative interpretation of the facts in relation to international law and the Charter, in particular the right to self-defence.

ISIL has indeed been branded the enemy of mankind. However, as the response in terms of the use of force is not a collective one, but based on self-defence, ISIL can, seemingly, be engaged forcibly by any state that has the capacity to do so without the need for much further legal argument.

Of course, the Council also called upon states to coordinate their action. However, it is up to states to determine how and whether or not they will do so. President Hollande of France is at the moment seeking to bring together a joint coalition to fight ISIS cooperatively between the Western states engaged in Syria and the Russian Federation. As a result of the Vienna process, an attempt is also being made to agree a list of organizations and individuals deemed terrorist by all members of the International Syria Support Group as a step towards coordinated action.

Yet, the shooting down of a Russian fighter jet by Turkey appears to suggest that such coordination will be critical, but very difficult. For now, the Security Council, undoubtedly acting in a rush, has created a very unusual situation. It has granted a universal licence to engage ISIL in Syria and perhaps also Iraq. But by avoiding Chapter VII, resolution 2249 (2015) does not provide a mechanism to enforce coordination and to reign in excessive or unhelpful claims to the use of force. It seems to be open season in Syria for now, until the intervening states can agree the terms of a cooperative arrangement to engage ISIL, al-Nusra and other groups designated as the common enemy.

Corrections and comments from Mr Jake Rylatt are gratefully acknowledged.


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Kevin Jon Heller says

November 25, 2015

I can't help but wonder whether the post is reading a bit too much into paragraph 1 of SC Res. 2249, particularly when read contextually with paragraph 5, which insists that State actions against Daesh in self-defence must comply with the UN Charter. Paragraph 1 does not state that Daesh intends to carry out attacks as soon as practically possible and has the capacity to do so; it simply states that Daesh has "the capacity and intention to carry out further attacks." The difference, it seems to me, is quite important: I read Res. 2249 to be a reminder that Daesh will inevitably strike again in the future, not as a statement by the Security Council that it is actually planning imminent attacks. So although I agree that paragraph 1 likely makes it easier for States to justify acting in self-defence, I don't think it relieves them of their obligation to show that they are using force to prevent attacks that are genuinely imminent -- not simply to prevent attacks planned for some unspecified time in the future.

Marty Lederman says

November 25, 2015

Kevin: Would there be any reason for a state *not* to conclude that "Daesh intends to carry out attacks as soon as practically possible and has the capacity to do so," at least with respect to those nations that have attacked it (e.g., the U.S., France, the U.K., Russia, et al.)? This is, after all, an armed conflict, and all sides have demonstrated an intention and capacity, not merely to have conducted discrete past attacks (e.g., Paris in November 2015), but to attack the other side regularly, and whenever possible, into the future.

Aurel Sari says

November 25, 2015

Once an armed attack has occured and a threat of further attacks exists, why would it be necessary to demonstrate that those attacks are about to occur as 'as soon as practically possible'? Sure, the likelihood of further attacks must be real and not sometime in the indefinite future, but a Caroline degree of imminence seems unwarranted.

On a more technical point: why is Res 2249 not a Chapter VII resolution? It clearly makes a determiniation under Art 39 of the Charter and that provision specifically entitles the Security Council to make recommendations or adopt decisions on the basis of such a determination. Consequently, the fact that Res 2249 does not explicitly decide anything does not prevent it from being a Chapter VII resolution.

Jordan says

November 25, 2015

Marty and Aurel have some good points here, especially if one uses a movie camera to view attacks over time (Aurel's first point fits well here). Further, Caroline involved ongoing armed attacks and claims of responsive self-defense (nothing to do with anticipatory self-defense -- ) Finally, let's get rid of the phrase "imminent threat" or what I see here as "imminence of the threat" (see the above cited article). An imminent threat is not yet even a "threat." Persons who use such a phrase might have in mind imminent attack.

Kriangsak Kittichaisaree says

November 25, 2015

Some international lawyers might find a place for 'permanent imminence of armed attacks' and the threat thereof where there have been 'pinprick attacks' which can be amalgamated under the 'accumulation of effects' theory, combining effects to meet the armed attack threshold under Art. 51 of the UN Charter so long as the attacks are by the same attacker (or attackers operating in concert), related in terms of objective, and meet the requisite scale and effects threshold. Kenya seems to use this reasoning in invoking, since October 2011, the right of self-defence against the al-Qaeda-affiliated Al-Shabaab armed group based in Somalia in response to several separate low-intensity attacks by the latter against Kenyan territory from 2009.

Kevin Jon Heller says

November 25, 2015


I don't agree that Daesh has demonstrated the "intention and capacity" to attack every state that is using force against it "regularly, and whenever possible, into the future." Intention? Perhaps. But certainly not capacity -- and certainly not enough capacity that every state using force against Daesh is entitled to perpetually assume that it is about to be imminently attacked by it. (A very convenient assumption for those states.) But that wasn't the point of my comment. I was simply noting that the Security Council's language in Resolution 2249 ("the capacity and intention to carry out further attacks") is not most naturally read to mean that Daesh is intending to launch attacks as soon as possible and has the capacity to do so.

Kevin Jon Heller says

November 25, 2015

The italics should end after "against Daesh"...

olivier corten says

November 26, 2015

Dear Marc,
I share some of your reflexions about the interpretation of this resolution, but I'm afraid I didn't get your point as far as self-defence is concerned. The Security Council did not mention self-defence, as it did in previous resolutions, including for example SC Res 1368 (2001). In my opinion, we can therefore not conclude that the self-defence argument would have been supported in any manner by the adoption of Res 2249 (2015)… A more convincing interpretation is that the self-defence argument has not been universally accepted in this particular case. That could explain why the Council chose not to mention it.

Jordan says

November 27, 2015

see the UK claims posted in part over at Opinio Juris ( The UK relies partly on the S.C. Res. The U.K. aptly relies on collective self-defense with Iraq. But the UK also uses the long discredited "Bush doctrine" of an "evolving threat," which, of course, is not yet even a threat, much less a real threat of an imminent armed attack [which is decidedly not the same as an "imminent threat," which, of course, is not yet an actual threat].
But why did the UK mouth this patently indefensible "evolving threat" nonsense?? What dangerous game is the UK playing???

Nicolas Boeglin says

November 30, 2015

Dear Professor Weller: Many thanks for this new post on this quite confused resolution adopted only a week after Paris attacks of Nov. 13. If you have the link with access to the original draft presented by France, let us know and share it with all of us. In an official UN press release, Russian delegate explained last Nov. 20 that explicit references to UN CHarter in 2249 Resolution result from Russia´s suggestions: ”M. Churkin s’est cependant félicité de ce que des amendements apportés à la demande de sa délégation, notamment les références à la Charte des Nations Unies, figurent désormais dans le texte”. Source:
I´am also wondering, and I share the question with you, it it is not the very first time in history of French diplomacy that its delegates try to avoid an explicit reference to UN Charter in the operative paragraphs of a draft resolution to be presented to UNSC. Yours sincerely. Nicolas Boeglin

Martin says

December 3, 2015

The 'mixed message' of the Resolution can be seen in the remarks of UK MPs yesterday. 104 MPs spoke in the debate to authorise action in Syria, around 30 of whom explicitly mentioned a legal basis.

Half relied on the Resolution alone, or in conjunction with self-defence. 4 relied upon individual self-defence separate from the Resolution. Another 6 upon collective self-defence varyingly termed as 'Iraq or France have asked us'. Another handful of MPs relied upon Syria as a failed state, humanitarian intervention and, this really happened, Article 5 NATO Treaty.

This is reflected in the motion that referenced in turn the Resolution, and the "legal basis to defend the UK and our allies in accordance with the UN Charter."


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