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

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.

Conclusion

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.