Prime Minister David Cameron has appealed to Parliament Members to vote in favor of Royal Air Forces (RAF) air strikes against Islamic State (ISIS) in Syria, in order to “keep the British people safe” from the threat of terrorism.
United Kingdom’s Executive seems to be extremely “urged”, as reported by press (see for example the title of this note ), and time seems short for more debate and examination of further details. As very well known, “urgency” is sometimes extremely useful, mainly when arguments presented are simple. In a recent article entitled, “Voting on Military Action in Syria”, it is written that Prime Minister seems quite clear on one particular point: “In his address to Parliament, David Cameron insisted that the UN SC Resolution provides a legal basis for military action”. On the other hand, France Executive is expecting, with some urgency too, the decision to be taken in United Kingdom (see note ), as it appears quite isolated in Europe Union concerning airstrikes in Syria practice (and its predicable consequences (Note 1) ).
It must be recalled that first official French airstrikes in Syria against ISIS positions took place last September 27 (see note of Le Monde of this very same day): 24 hours after, France President took the floor at the United Nations General Assembly and Le Monde understood (as all of us) (see note ) that the choice of September 27 :
“C’est une opération qui tombe à point nommé. L’annonce des premières frappes aériennes françaises en Syrie, dimanche 27 septembre, ne doit rien au hasard ».
In August 30, 2013, a similar vote took place in United Kingdom with a short negative result for the executive concerning airstrikes in Syria (see note of BBC): the government motion was rejected by 285-272. In BBC note above referred, it can be read that
“On Friday French President Francois Hollande told the newspaper Le Monde that he would still be willing to take action without Britain’s involvement. He said he supported taking “firm” punitive action over an attack he said had caused “irreparable” harm to the Syrian people“.
At the opening of a 10-hour Commons debate yesterday, the Prime Minister said the country had no other choice. In the report presented to the Parliament (see full text ) he stressed that:
“I believe that the UK should now join Coalition airstrikes against ISIL in Syria” (p. 7) and that “On 20 November 2015, the UN Security Council unanimously called on Member States to use all necessary measures to prevent and suppress terrorist acts committed specifically by ISIL, and to deny them safe haven in Syria and Iraq” (p. 8). In page 15 of this same document , he indicates just after quoting Resolution 2249 that “there is a clear basis for military action against ISIL in Syria”.
Even if Executive obtained this December 2, a positive vote on airstrikes in Syria by a great majority of 397 votes in favor and 223 against, some of the arguments presented during the discussion deserve some comments from the perspective of international law.
Which coalition are we talking about?
Concerning the first sentence mentioned before, in which Primer Minister said that “I believe that the UK should now join Coalition airstrikes against ISIL in Syria” (p. 7) we must note that the expression “Coalition airstrikes against ISIL in Syria” seems to be a new one. As known, a coalition has been created in September 2014 by United States and its allies: State Department includes an official list with more than 60 Members of this Coalition called “The Global Coalition to Counter ISIL” : it must be noted that Panama appears as the only State from Latin America, while, concerning Africa, Morocco’s, Nigeria, Somalia and Tunisia are included in this official list. Prime Minister David Cameron seems to refer to another coalition, or at least, to a branch of “The Global Coalition to Counter ISIL“.
In a recent report of the Foreign Affairs Committee of the House of Commons entitled “The extension of offensive British military operations to Syria“, precise information is provided on which are the States involved in airstrikes in Syria (and in Iraq):
“Airstrikes in Iraq: US, UK, Australia, Belgium (withdrawn), Canada (expected to withdraw), Denmark (withdrawn), France, Jordan, The Netherlands (9).
Airstrikes in Syria: US, Australia, Bahrain, Canada (expected to withdraw), France, Jordan, Saudi Arabia, Turkey, UAE (9).
Total of 13 states overall”(note 22, page 9). In its presentation at the “Sénat” in France, last November 25, French Minister of Foreign Affairs declares publicly (see compte-rendu analytique) that: “Une trentaine d’État sont engagés militairement dans la coalition“.
However, when Russia announced its first military operations in Syria last September 30, the reaction of the so called “Coalition” didn´t included the signature of 60 or 30 States, but only 7 that signed a declaration made public last October 2 (see official text ): France, Germany, Qatar, Saudi Arabia, Turkey, United Kingdom and United States.
As briefly presented, “The Global Coalition to Counter ISIL” is quite different from “Coalition airstrikes against ISIL in Syria” and numbers referred by France´s head of diplomacy seem to be extremely far from reality if compared with the exact number of States involved in military operations in Syria and Iraq.
It must be recalled that France has been the first EU member to bomb ISIS positions in Iraq. During the last days of September 2014, Belgium, Denmark and United Kingdom acceded also to participate in these airstrikes in Iraq (see note of Temps Réels). As known, the difference between Iraq and Syria is that the first gave its formal consent to United States and its allies to combat ISIS on its territory (see letter of September 20, 2014 in which It can be read that:
“we, in accordance with international law and the relevant bilateral and multilateral agreements, and with due regard for complete national sovereignty and the Constitution, have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent. The aim of such strikes is to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders”.
UNSC Resolution 2249: a confusing text from legal perspective
Concerning the second argument presented by Prime Minister David Cameron, the content of the Resolution 2249 has been made public since November 13 (Note 2), and assertions made by Prime Minister Cameron require some clarifications.
As known, Security Council 2249 (see text ) resolution does not provide any legal basis for airstrikes in Syria. A careful reading of the text shows that Resolution 2249 does not mention Article 42 of the UN Charter, which allows Security Council to authorize States to the use of force, or even Chapter VII generally; nor does use the verb “decide“, used when Security Council adopts a resolution on the use of force.
A note published by Royal Institute on International Affairs and entitled
“Assessing the Legal Basis for UK Military Action in Syria” is quite clear on this very particular point of Resolution 2249 adopted last November 20: “In order to provide legal authority for the use of force against ISIS under international law, a Security Council resolution would need to constitute a decision, taken under Chapter VII of the UN Charter, that states could use all necessary measures in their action against ISIS. Although resolution 2249 determines that ISIS is a ‘global and unprecedented threat to international peace and security’ and refers to ‘all necessary measures’, the language used in the operative part of the resolution is merely hortatory (‘calls upon’) and does not refer to Chapter VII. For those who are looking for specific UN authorization for the use of force, this is not it“.
Recently, international lawyers entitled their analysis of this resolution (see article ):
“The Constructive Ambiguity of the Security Council’s ISIS Resolution“. For the authors of this article, “Resolution 2249, on the other hand, is constructed in such a way that it can be used to provide political support for military action, without actually endorsing any particular legal theory on which such action can be based or providing legal authority from the Council itself. The creative ambiguity in this resolution lies not only in the fact that it does not legally endorse military action, while appearing to give Council support to action being taken, but also that it allows for continuing disagreement as to the legality of those actions“.
A discrete French omission
It must be recalled that references to United Nations Charter in operative part of the resolution are the result of Russia insistence, and were not included in the original draft presented by France to the members of the Security Council. In this note entitled “Adoption of a Resolution on Counter Terrorism“, we read that, concerning modifications to the original draft presented: ” “Russia insisted that a reference to the UN Charter be inserted and France agreed“. Despite public declarations made by France ´s delegates after the vote of Resolution 2249 (Note 3), this resolution does not justify the legality of France´s airstrikes in Syria. On this and others French contradictions, and the very first “premiere” offered by France diplomacy at the United Nations in order to avoid a reference to the Charter in operative paragraphs of a draft resolution, we refer to our modest article entitled “La Résolution 2249 n’autorise pas à bombarder en Syrie“. In another recent article on the intervention of Russia in Syria from the legal perspective, entitled “Russia´s intervention in Syria“, France ´s official reasons to intervene in Mali´s civil war at the request of national authorities are mentioned. The author concluded that: “On the basis of the reasoning of the Court and the responses of states to the recent interventions in Mali by France and in Syria by Russia, it is argued here that there is no such rule that prohibits an intervention in a civil war if the invitation comes from the government. It is thus submitted that the Russian intervention in Syria is in accordance with international law“.
On this extremely confused resolution 2249 adopted by Security Council one week after Paris attacks of November 13, on which we find analysis written in English and miss analysis from our French colleagues, another extremely interesting article has been entitled “Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups” ). The tittle in itself shows the confusion created by Resolution 2249 when talking of a “Permanent Imminence”. In accordance with the author,
“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 his conclusion, the author emphasizes the fact that “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“.
Conclusion: a reference to Canada´s recent prudent withdraw
Last October 21, Canadian new elected authorities decided to suspend airstrikes in Syria as well as in Irak. In an article published in 2015 on airstrikes by Canadian Air Force, entitled “Canada’s Military Operations against ISIS in Iraq and Syria and the Law of Armed Conflict” the author concludes that, with regard to airstrikes in Syria:
“However, there is a further legal hurdle for Canada to overcome. Unless Canada can attribute ISIS’ attacks in Iraq to Syria, then the question becomes whether Canada may lawfully target ISIS, as a nonstate actor in Syria’s sovereign territory, using the ‘unwilling or unable’ doctrine to prevent ISIS’ extraterritoriality attacks against Iraq. This justification moves significantly away from the Nicaragua, Congo and Israeli Wall cases’ requirement for attribution“.
The author ends his article with the following sentence:
“There is no escaping the conclusion that Canada’s air strikes on Syria are on shaky, or at least shifting, legal ground“.
Despite “urgency “and Primer Minister David Cameron´s interpretation of Resolution 2249, from the legal perspective, these same conclusions, in our modest view, are applicable to airstrikes in Syria realized by United States and its Arabic allies (Bahrain, Jordan, Saudi Arabia, United Arab Emirates), as well as by Australia, Canada, France, Turkey and future operations of this kind of United Kingdom.–
1: Three days after the first aistriskes of France in Syria, last September 27, an expert on counter terrorism and judge stressed in an interview in Paris Match ( see references in this article of Le Monde ) that:
“« J’ai acquis la conviction que les hommes de Daech [Etat islamique] ont l’ambition et les moyens de nous atteindre beaucoup plus durement en organisant des actions d’ampleur, incomparables à celles menées jusqu’ici. Je le dis en tant que technicien : les jours les plus sombres sont devant nous. La vraie guerre que l’EI entend porter sur notre sol n’a pas encore commencé ».
2: At the end of this note, the full text of Resolution 2249 is reproduced.
3: In his declaration during Security Council session of November 20, (see full text of his declaration), French Ambassador Delattre affirmed that:
“Cette résolution encadre notre action dans le cadre du droit international et dans le respect de la Charte des Nations Unies qui est notre bien commun, qui est notre trésor commun. Il offre aussi une garantie de lutte efficace contre le terrorisme transnational ».
Nicolas Boeglin is Professor of International Law, Law Faculty, University of Costa Rica (UCR)
Text of the Security Council Resolution 2249 (2015)
Adopted by the Security Council at its 7565th meeting, on 20 November 2015
The Security Council,
Reaffirming its resolutions 1267 (1999), 1368 (2001), 1373 (2001), 1618 (2005), 1624 (2005), 2083 (2012), 2129 (2013), 2133 (2014), 2161 (2014), 2170 (2014), 2178 (2014), 2195 (2014), 2199 (2015), 2214 (2015) and its relevant presidential statements,
Reaffirming the principles and purposes of the Charter of the United Nations, Reaffirming its respect for the sovereignty, territorial integrity, independence and unity of all States in accordance with purposes and principles of the United Nations Charter,
Reaffirming that terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed,
Determining that, by its violent extremist ideology, its terrorist acts, its continued gross systematic and widespread attacks directed against civilians, abuses of human rights and violations of international humanitarian law, including those driven on religious or ethnic ground, its eradication of cultural heritage and trafficking of cultural property, but also its control over significant parts and natural resources across Iraq and Syria and its recruitment and training of forei gn terrorist fighters whose threat affects all regions and Member States, even those far from conflict zones, the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), constitutes a global and unprecedented threat to international peace and security,
Recalling that the Al-Nusrah Front (ANF) and all other individuals, groups, undertakings and entities associated with Al-Qaida also constitute a threat to international peace and security,
Determined to combat by all means this unprecedented threat to international peace and security,
Noting the letters dated 25 June 2014 and 20 September 2014 from the Iraqi authorities which state that Da’esh has established a safe haven outside Iraq’s borders that is a direct threat to the security of the Iraqi people and territory,
Reaffirming that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law,
Reiterating that the situation will continue to deteriorate further in the absence of a political solution to the Syria conflict and emphasizing the need to implement the Geneva Communiqué of 30 June 2012 endorsed as Annex II of its resolution 2118 (2013), the Joint Statement on the outcome of the multilateral talks on Syria in Vienna of 30 October 2015 and the Statement of the International Syria Support Group (ISSG) of 14 November 2015:
1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks perpetrated by ISIL also known as Da’esh which took place on 26 June 2015 in Sousse, on 10 October 2015 in Ankara, on 31 October 2015 over Sinaï, on 12 November 2015 in Beirut and on 13 November 2015 in Paris, and all other attacks perpetrated by ISIL also known as Da’esh, including hostage -taking and killing, and notes it has the capability and intention to carry out further attacks and regards all such acts of terrorism as a threat to peace and security;
2. Expresses its deepest sympathy and condolences to the victims and their families and to the people and Governments of Tunisia, Turkey, Russian Federation, Lebanon and France, and to all Governments whose citizens were targeted in the above-mentioned attacks and all other victims of terrorism;
3. Condemns also in the strongest terms the continued gross, systematic and widespread abuses of human rights and violations of humanitarian law, as well as barbaric acts of destruction and looting of cultural heritage carried out by ISIL also known as Da’esh;
4. Reaffirms that those responsible for committing or otherwise responsible for terrorist acts, violations of international humanitarian law or violations or abuses of human rights must be held accountable;
5. Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al Qaeda, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the Statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;
6. Urges Member States to intensify their efforts to stem the flow of foreign terrorist fighters to Iraq and Syria and to prevent and suppress the financing of terrorism, and urges all Member States to continue to fully implement the abovementioned resolutions;
7. Expresses its intention to swiftly update the 1267 committee sanctions list in order to better reflect the threat posed by ISIL also known as Da’esh;
8. Decides to remain seized of the matter.