Approving force without authorising it: UN Security Council resolution 2249 on the fight against ISIL

One week after the terrorist attacks in Paris, the United Nations Security Council (UNSC or the Council) has adopted resolution 2249 (2015) on the fight against the Islamic State in Iraq and the Levant (ISIL). The resolution does not authorise the use of force against this armed group. It rather provides political legitimacy to the ongoing military operations in Syria.

“A global and unprecedented threat”

Within the collective security system, the UNSC has the primary responsibility for the maintenance of international peace and security and, accordingly, the power to adopt resolutions binding on States. The preamble of a resolution sets the political and legal context of its adoption. The operative part, in turn, contains the measures the Council recommends or requires States or other entities to implement. In accordance with Chapter VII of the Charter of the United Nations (UN Charter), these measures span from those not involving the use of force ‒ e.g. arms and trade embargoes, asset freezes, travel bans, referrals to the International Criminal Court ‒ to the authorisation to use armed force against a State or non-state armed group.

epa04422741 A handout picture made available by the US Department of Defense (DoD) on 29 September 2014 shows a pair of US Air Force F-15E Strike Eagles flying over northern Iraq early in the morning of 23 September 2014, after conducting airstrikes in Syria. These aircraft were part of a large coalition strike package that was the first to strike Islamic State (IS or ISIL) targets in Syria. Al-Nusra, a branch of al-Qaeda operating in Syria, was hit by US airstrikes on 23 September, the same day the US and allies launched raids against the Islamic State group, which split from al-Qaeda last year and has seized swathes of Syria and neighboring Iraq. The US Congress has also authorized the equipping and training of moderate Syrian rebel groups who are to fight Islamic State militants on the ground. But even some moderate rebel groups have reacted angrily to the strikes against al-Nusra, asking why they are not receiving more military aid and arguing that regime forces should also be targeted. The Britain-based Syrian Observatory for Human Rights said al-Jaulani's group lost 57 fighters in the raids. The US said it was targeting a network of al-Qaeda veterans who were preparing overseas attacks. US president Barack Obama blamed instability in Syria for giving extremists space to thrive. In an interview on 28 September, Obama said his director of national intelligence already had acknowledged that US intelligence underestimated what had been taking place in Syria. EPA/US AIR FORCE/MATTHEW BRUCH HANDOUT EDITORIAL USE ONLY

© EPA/US Air Force/Matthew Bruch

In the preamble to resolution 2249, the UNSC reaffirms, following established practice, that “terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security” (para. 4). Further, the Council determines that ISIL in particular “constitutes a global and unprecedented threat to international peace and security” (para. 5), and affirms the need to combat it “by all means” (para. 7). Such phrases are usually employed to introduce the adoption of coercive measures pursuant to Chapter VII of the UN Charter. Yet, the resolution falls short of including any such measure, let alone the authorisation to use force against ISIL.

In the operative paragraphs, the UNSC condemns various terrorist acts attributed to ISIL that have occurred throughout 2015 ‒ in Sousse, Ankara, the Sinai, Beirut and Paris ‒ and expresses its condolences to the victims as well as the governments and citizens of the countries in which such attacks have taken place (paras. 1‒2). Additionally, the Council condemns the widespread and systematic violations of international human rights law and international humanitarian law committed by ISIL against civilians, minorities and cultural property, urging States to prosecute and punish the perpetrators (paras. 3‒4). Lastly, the UNSC urges 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” (para. 6).

The use of force against ISIL

Although not authorising States to undertake military action, resolution 2249 includes a passage that refers to the use of force, in which the UNSC:

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, […] on the territory under the control of ISIL […] to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL […] and other terrorist groups [i.e. Al Qaeda and the Al-Nusrah Front], and to eradicate the safe haven they have established over significant parts of Iraq and Syria.

It is noteworthy that the Council makes use of language (‘all necessary measures’) usually employed for authorising the use of force, yet stopping short of such authorisation. Some scholars hence maintained that the ambiguous wording of resolution 2249 is designed to give political legitimacy to the ongoing military operations, allowing States to continue relying upon the legal bases so far utilised.

It is important to note that four of the five Permanent Members of the UNSC ‒ Russia, the US, the UK and France ‒ are currently engaged in military action in Syria and resort to diverse legal justifications. Russia’s military action is based on the invitation of the Syrian government, which consent provides the legal basis to conduct strikes against both ISIL and anti-Assad rebels. According to several reports, the latter have been the principal target of Russian attacks. The US-led coalition relies on the invitation of the Iraqi Government, which invoked the right to collective self-defence under Article 51 UN Charter. Outside Iraq and inside Syrian territory, airstrikes are carried out on the basis of the unwillingness or inability of the Assad government to fight ISIL. This legal theory is not firmly established under international law; in the current situation, however, States have not openly contested it. Additionally, following the attacks against the Russian plane in the Sinai Peninsula and Paris, Russia and France might in turn be allowed to invoke individual self-defence against ISIL.

Conclusion

The significance of UNSC resolution 2249 on the fight against ISIL seems to be mainly political. It is an outspoken condemnation of the various terrorist attacks attributed to ISIL, although such outrage has been expressed only after Europe was directly hit. Notably, the resolution does not authorise the use of force, so that the ongoing military operations some States are already conducting in Syria will continue to rely upon a range of legal bases, from the Syrian government’s consent to individual and collective self-defence and the so-called ‘unwilling or unable’ test. On the other hand, it provides crucial political support and legitimacy to such military action. Within the resolution, the armed conflict in Syria and its spill-over effects in Middle Eastern countries ‒ the pivot of this international crisis ‒ are addressed just in the final preambular paragraph. Here, the Council emphasises the importance of finding a political solution to the conflict and the need to implement the outcomes of the negotiation started in 2012. One question may then be raised. What contribution may the UNSC bring to the political solution of the Syrian conflict, as long as four of its five Permanent Members are engaged in military operations that are part and parcel of that same conflict?

MEET THE AUTHOR

Vito Todeschini is PhD Fellow at Aarhus University, Denmark, and editor of Rights!.

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