“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

Self-defense against non-State actors

 Unsurprisingly, the German Government does not address well-known and principled challenges to its line of argument, despite Syria’s continued protests. Neither does it expressly address the controversial question to what extent non-State actor attacks amount to an armed attack. Nor does it touch upon the (increasingly contentious) question whether and to what extent a State may exercise self-defense against a host State (here Syria), if the host is unable or/and unwilling to prevent non-State actors’ attacks. On this matter, the German approach in the past has been marked by (deliberate?) ambiguity. Previous formal requests to the German Parliament pointed towards an acceptance of the “unable and/or unwilling doctrine”. Germany’s letter to the Security Council from 2015, however, did not explicitly mention the doctrine. Instead it indicated that it is decisive that “ISIL has occupied a certain part of Syrian territory over which the [Syrian] Government […] does not at this time exercise effective control.”

However, with the present request, it does not seem to be far-fetched to assume that Germany has subtly moved towards embracing the “unable or unwilling doctrine”. First, the Government acknowledges that Syria is regaining territorial control. It is also difficult to continue to speak of “occupation by ISIL”. Second, the Government (indirectly, as it only refers to other States’ argumentation) specifies that the “Syrian government has been and still is unable to prevent all attacks from ISIL that originate in its territory”.

 Continuing endorsement through Security Council resolutions?

 In its request, the Government continues to suggest that Security Council resolutions are an important factor for the legality of Germany’s measures under collective self-defense. Once more, Germany invokes resolution 2249 (2015)’s notorious and enigmatic paragraph 5. In addition, it relies on resolution 2449 (2018), in which the Council “express[ed] its grave concern that areas remain under [ISIL’s] control”, reaffirm[ed] its resolve to address all aspects of the threat posed by ISIL,” and “call[ed] for the full implementation” of i.a. resolution 2249 (2015).

The strength of this argument is debatable – even if one grants feasibility to the legal construction of a “Council endorsed right to self-defense” or a recognized “permanent imminence of the threat”. Both resolutions were particularly concerned with and based on ISIL’s territorial control. Just recall again paragraph 5 of resolution 2249 (2015) calling for “all necessary measures […] on the territory under the control of ISIL”, limiting the endorsed “operational area” accordingly. But the German Government itself is no longer of the view that ISIS has “coherent territorial control”. The global coalition ended this in March 2019, i.e. four months after the adoption of resolution 2449 (2018).

It is true that the German Government qualifies the loss to “only” “coherent territorial control”. Also, it states that there still are “areas in which territorial control through security forces is not yet sustainably guaranteed.” Arguably, this leaves room for the Council resolutions to apply. On the other hand, little indicates that the Government supposes ISIL still has territorial control. It rather emphasizes that “ISIL continues to claim formerly controlled areas.”

In any event, this case suggests that any “endorsement-argument” should be applied with interpretative care.

Is there a continuing armed attack?

 Even granted that States had a right to collective self-defense, what if President Trump is right? What if ISIL was “defeated”? Is there still an armed attack against Iraq emanating from Syria and allowing for traditional self-defense?

On the assumption that the traditional right to self-defense only allows for defense against the armed attack, one might argue that an armed response must be confined to halting and repelling an armed attack that is actually in progress. A later response either would be prohibited as unlawful armed reprisal, or would need to meet the requirements of the contentious right to anticipatory self-defense. Arguably, the latter, if accepted, would require higher standards (especially in light of the unable and/or unwilling doctrine) than traditional self-defense responding to an armed attack that has in fact occurred, yet is no longer in progress.

Yet, States do not treat the legal concept of an armed attack this narrowly. Halting and repelling an armed attack may include preventing renewed attacks, deeming the initial armed attack to continue in this sense. What normally would fall under anticipatory self-defense, now, through its connection to the previous armed attack, may fall under traditional self-defense. But then: when does an armed attack, and accordingly, the traditional right to proportionate self-defense, legally terminate?

For the German Government, despite ISIL’s territorial defeat, the right to self-defense has not ended. It does not invoke any form of anticipatory self-defense. Instead, a right to – what one may want to call “sustainable” – self-defense stands at the center. Such a right may be exercised – even if there is only a threat of renewed attacks by ISIL – as long as ISIL is not sustainably defeated, and accordingly renewed terror attacks are on the rise, i.e. that “ISIL is only waiting for the opportunity to re-establish territorial control”. On this basis, the Government assumes a “continued armed attack by ISIL” that allows to resort to armed force to the extent it also remains necessary.

How is the “continued armed attack” substantiated? Most notably, ISIL’s territorial control is (no longer) decisive. Instead, other factors are relevant:

• “ISIL could consolidate in its core area of operation in Syria and Iraq, and could build up effective underground structures, at the moment already with considerably more than 10.000 available fighters and active supporters.
• Important leadership positions are filled again; recruitment and propaganda were adjusted, a “virtual caliphate” was created, and financing sources were re-established. The long-term goal is to reestablish a territorial caliphate.
• For the year to date, the number of terrorist attacks by ISIL in Iraq and Syria has increased compared to the previous year. With the successful consolidation in the underground, a move to increased planning of attacks against goals in the West is becoming more probable.”

In addition, the Government held:

“[ISIL] still raises a claim to the formerly controlled territories and beyond, and focuses its actions on regaining strength in areas in which territorial control by security forces is not reliably guaranteed, exerting influence, and expanding its network in the underground. […] ISIL continues to possess resources, military means and the will to exercise temporal and spatial limited territorial control. ISIL continues to be capable and willing to commit attacks in Syria, Iraq and Europe and beyond. In light of the freeing of the last connected areas from the ISIL-terror regime, the threat potential going beyond the region has significantly increased, since ISIL attempts to demonstrate as a serious actor capacity to act also beyond Syria and Iraq.”

Those factors appear rather broad. This is especially so in light of the notable emphasis on ISIL’s regain of (abstract) power, and the Government’s official goal “to prevent ISIL from regaining strength”. At the outset, the Government gives the impression to connect the sustainable defeat of ISIL as an actor with the continuation of the threat of future attacks, and hence the “continued armed attack”. Yet, this should not be mistaken to mean that self-defense is permissible per se until ISIL ceases to exist. ISIL’s existence (with or without territorial control) is not and should not be a (continued) armed attack per se. In line with previous State practice, the risk of renewed attacks is decisive. And accordingly, it should be noted that the German Government also mentions a threat of further attacks as continuation of the initial armed attack as an additional requirement – although it may have received arguably disproportionately little attention and weak, rather abstract substantiation.

For the application to the case of ISIL this may nonetheless be less controversial, as it has indeed conducted repeated and renewed terrorist attacks during the last four years, at least in Iraq. Likewise, despite momentary silence, the threat of renewed attacks that is inherently linked to ISIL’s existence seems rather uncontroversial.

Still, an abstract reading of the criteria for “sustainable self-defense” may open the door to an “all-out” armed response to destroy a dangerous enemy that has attacked once. In light of the realities of terrorist organizations, and ISIL in particular, specifically their deliberate operation from the underground, their use of unconventional means of warfare, and their instrumentalization of uncertainty about when and where the next attack occurs, the sustainable self-defense approach may run risk to turn into a doctrine of endless self-defense. In particular, explaining the risk of renewed attacks with ISIL’s (abstract) capacity and will to attack, and with the own military success that motivates ISIL to demonstrate a capacity to act, not expressly linking it to a concrete threat, risks to lead on a slippery slope.

Accordingly, to apply the criteria for sustainable self-defense in the future, to transfer them to other (inter-State) contexts, and to sustainably contribute to drawing the end-line for self-defense, such criteria would require further refinement.

No end in sight…

The global coalition has pulled the “areas under territorial control” out from ISIL’s feet. At the same time, this military success has required States to adjust their legal grounds for continued (participation in) armed force on Syrian territory. The German Government claims military operations are still covered by the right to collective self-defense, allowing to halt and repel attacks sustainably. That sustainability of military operations is also reflected in legal terms seems reasonable in principle. Yet, sustainable must not mean endless. The German reasoning however does not set a clear endpoint – at least legally. Germany plans to end its military participation by 31 March 2020. But that the right to self-defense may continue Germany acknowledges itself: it commits to intensifying its efforts to find other States replacing its military contribution.