Does Security Council Resolution 2249 (2015) of 20 November make bombing ISIL in Syria legal? Yes!
The UN Security Council’s resolution on ISIL (ISIS, Da’esh), adopted unanimously on 20 November, has received much less UK media attention and analysis than it deserves. In my view it has transformed the situation of Labour MPs faced with the decision on how to vote on the prime minister’s application for parliamentary approval for Britain to join the American and French campaign of bombing ISIL in Syria (the UK is already joining others in bombing ISIL in Iraq). The Labour leader, Jeremy Corbyn, is known to be opposed to UK bombing of Syria and also opposed to giving his MPs a free vote on the issue – he wants a 3-line Whip ordering his MPs to vote against. Other members of the shadow cabinet and Labour back-benchers have made clear their inclination to vote Yes, preferably in a ‘free’ (unwhipped) vote. Some Tories are inclined to vote No, and the nominal Tory majority is only 17, so the outcome of a Commons vote may hinge on the number of Labour MPs voting Yes, either in a free vote or in defiance of Mr Corbyn and the Whips.
I see UNSC resolution 2249 as removing any doubts about the legality of bombing ISIL in Syria and thus greatly strengthening the case for UK participation in it, provided that other obvious conditions are met – part of an overall political , humanitarian and military strategy, clearly defined achievable objectives, safeguards for civilians, and an exit strategy. But a number of reputable commentators have stated as fact that resolution 2249 doesn’t authorise military action against ISIL. For example, BBC News says:
The UN resolution does not provide a legal basis for military action and does not invoke the chapter of the UN charter authorising the use of force. [http://www.bbc.co.uk/news/uk-34886574]
It [the resolution] does not invoke the UN’s Chapter VII, which gives specific legal authorisation for the use of force. France and Russia have argued that military action is already justifiable because of the right of countries to self-defence. [http://www.bbc.co.uk/news/world-europe-34886971]
Other media commentator sites like the Netlawnman and Sightlawnow have made similar assertions, perhaps as a result of off-the-record briefings, although it would be strange if No. 10 were to be weakening the effect of the resolution by denying that it provides a legal basis for military action.
I’m not a lawyer, but I don’t follow the logic of this denial of legal authorisation in the resolution. The key parts of operative paragraph 5 of the resolution read as follows:
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-Qaida, and other terrorist groups […] and to eradicate the safe haven they have established over significant parts of Iraq and Syria[.]
The phrase “all necessary measures” in the UN’s vocabulary is always interpreted as including the use of force if, but only if, force is necessary for the achievement of the objectives set out in the relevant resolution or other document. It is difficult to see how UN member states responding to the Security Council’s call could try to “prevent and suppress terrorist acts” by ISIL on territory that it controls, or in particular “to eradicate the safe haven [ISIL] have established over significant parts of Iraq and Syria” without using military force. And it’s even more difficult to imagine how activity expressly encouraged by the Security Council in a formal and unanimous resolution could be deemed to be illegal or unauthorised.
The confusion arises, as the quotations above show, from the fact that SC Resolution 2249 does not invoke Chapter VII of the United Nations Charter, although it repeatedly uses Chapter VII language in declaring that ISIL, al-Qaeda and other terrorists’ acts “constitute a threat to international peace and security”, such a finding being the first function of the Security Council as laid down in the very first Article of Chapter VII (Art. 39). I would argue that this resolution clearly authorises the use of military force against ISIL in territory it occupies in Iraq and Syria and that it is not a Chapter VII resolution because there is no need for the Council to invoke its Chapter VII powers in order to grant that authority.
The distinguishing feature of Chapter VII resolutions is that they are mandatory: their provisions have the force of international law and are binding on all UN member states. Thus when the Security Council imposed an embargo on selling arms to apartheid South Africa, it did so in Chapter VII resolutions which made it illegal for any country to sell arms to South Africa, and the Council had the power to impose sanctions on any country that disobeyed the embargo. The ISIL resolution is different in that it imposes no legal obligations on anyone: it only “Calls upon Member States that have the capacity to do so” to take certain actions against ISIL and other similar organisations. It encourages but it does not oblige. I would argue that in doing so it also clearly legitimises. If it does not make legitimate actions that it calls on the relevant member states to take, the only inference is that the UN Security Council is asking UN members to act in breach of international law, which is obviously impossible. It’s true that the Council has chosen not to act under article 42 of Chapter VII under which the Council may “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security”, but if the Council “recommends” non-binding action by member states outside Chapter VII, we may surely infer that such action is legal.
The author of the BBC comment quoted above refers to “the UN’s Chapter VII, which gives specific legal authorisation for the use of force”, implying that such authorisation may be granted only by a Chapter VII resolution. I can’t find any basis for that implication. Article 39 of the Charter (part of Chapter VII) says that the Security Council –
shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
Artcles 41 and 42 deal with decisions by the Council to take measures, whether or not involving the use of armed force, that are binding on member states. In the present case the Council has determined that ISIL’s terrorist acts constitute a threat to international peace and security but has made non-binding “recommendations” to deal with it, not taking measures that would impose legally binding obligations on member states under Articles 41 or 42. The resolution is not a Chapter VII mandatory resolution because it doesn’t need to be.
As a postscript, the representative of France (which was the author and chief sponsor of the resolution that became Resolution 2249) argued in his ‘explanation of vote’ after the adoption of the resolution that the text provided a guarantee that there would be an effective fight against transnational terrorism, saying that collective action could now be based on Article 51 of the United Nations Charter. Article 51 confirms the “inherent right of self-defence if an armed attack occurs against a Member of the United Nations”. It is this article on which the Russians rely for their claim of legality for their bombing of Syria (because they are acting with and at the request of the lawful government of Syria which is itself acting in its self-defence) and also the article on which the UK, US, France and others rely for our claim of legality for our bombing of Iraq (because we are all acting with and at the request of the lawful government of Iraq, itself acting in its self-defence). The problem for western powers bombing Syria, or planning to do so, is that they, or we, can’t claim to be acting at the request of President Assad, whom indeed we all apparently want to depose. The French claim in the Security Council that UNSCR 2249 somehow enables those taking collective action under it to invoke Article 51 (self-defence) as the legal basis for doing so strikes me as ingenious but far-fetched, given that Resolution 2249 makes no mention of Article 51 or of self-defence. Mr Cameron’s even more far-fetched claim recently that Article 51 entitles us to bomb any country in which there is a terrorist suspect who may be planning a terrorist attack in the UK, in the hope of killing him (or her), can safely be left to the international lawyers to peck at and demolish, preferably with a straight face.
Footnote: The fact, if I’m right, that the Security Council has provided a legal basis for the UK to join others in bombing ISIL in Syria doesn’t, of course, in itself make it morally or politically right for us to do so. There are clearly arguments for as well as against. These go beyond the scope of this post and those wishing to comment on it should please confine themselves to the question of whether UNSCR 2249 provides legal cover for Britain to bomb ISIL in Syria, not to the non-legal arguments for or against doing so.
Brian
I suspect we will join in with the other countries who will rein down death on innocents and those that are guilty, what a shame we do not go after all those that give support for the ISIS lot, like Saudi Arabia.
But we must go and bomb so that Cameron’s name can go down as the leader who also backed the yanks.
If your going to go to war why not go and do it the real way with troops on the ground and aircraft to back up those troops.
It’s a game we play.
Interesting Brian. I wondered why they did not go the whole hog with something under Chapter Seven given that everyone now seems to be raring to go. Would you say there are real issues in terms of your distinction between obligatory and discretionary? Are there foot draggers whom it might be embarrassing to declare in violation of a UNSC resolution under Chapter Seven (for they surely would not be forced into actions they did not want to take by such a resolution)? The only angle I can think of is that a resolution under Chapter Seven would bring the UNSC -as an actor- into policy making, thus requiring a higher degree of agreement among the governments seeking to bomb and less scope for them, or friendly groups of them, doing their own things.
When the Jordanians increased their bombing in response to their pilot’s immolation, I was minded of the Battle of Britain sketch from Beyond the Fringe where the higher ups decided the situation was so bad that it called for a futile gesture. After Paris, I thought well at least the French are classy enough not to attempt that. No such luck, and now the rest of us are joining in.
I appreciate your reasoning and the very correct point at the end that legality does not necessarily imply morality.
Reading your analysis, I can’t help but notice that this resolution seems to be opening the door to discretionary, opt-in warfare, based on the reasoning of acting in self-defence. This brings two things to mind:
1. for an attack against Syria to constitute self-defence, there must be undeniable proof that the terrorists actually came from Syria. The indications are, however, that the Paris terrorists were disillusioned spoiled brats, born and raised in the West, who were playing out their videogame fantasies in the real world: the link with Syria is tenuous and only self-proclaimed by the perpetrators. If the UK and others follow the foolish precedent set by France in this respect (Hollande jingoistically tub-thumping in a desperate attempt to prove to his electorate that he has tnhings under control, when it’s perfectly clear that he doesn’t), then what is to stop some halfwit setting off a bomb in any other country with the capacity to respond and claiming, out of the blue, that (s)he is doing so on behalf of MI5? Would that other country then be entitled to “act in self-defence” by bombing London? I think not. So the moral is that this is a one-way street, nevcer to be applied to the paternalist states that perceive that they and their system rule the world.
2. Is there a risk that the UN Security Council, with this resolution, is setting a precedent for discretionary, rather than obligatory, policing activity and warfare undertaken increasingly outside the remit of the UN itself?
In my view your interpretation is 100% correct.
Two examples of non-Chapter VII “recommendations” include Korea 1950 (SCRs 83 and 84 of 1950 – http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/83(1950) and http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/84(1950)) and Southern Rhodesia 1966 (SCR 221 of 1966 – http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/221(1966)).
I am indebted to Bailey and Daws “The Procedure of the UN Security Council” Third Edition Pages 374-375 for these references. The B and D text reads:
I fear you are right – fear, because as you say it has changed the situation facing MPs (why do you say “Labour MPs”?) deciding how to vote when the Prime Minister produces his case for extending airstrikes, now promised for Thursday. Those who understand what is happening in Syria will find it more difficult to stand up against the patriotic tide.
I wonder why the resolution did not mention Chapter VII. It would not have been necessary to make any specific action mandatory, but a mention would have made it clear beyond doubt that those who want war may have it. Perhaps the Russians or the Chinese were unwilling? That doesn’t really explain it, given that they agreed to vote for the resolution as we have it.
With intense frustration I observe the ukase in your final paragraph, intense because any useful discussion of the other aspects of the question needs to begin now. If we ever see the Chilcot report I am confident that it will show us not only that we went into Iraq on a lie, but that we did so with supreme incompetence and lack of a proper plan. This time?
If I might take another bite at the cherry. As I look at Articles 39 to 42, the language I find there is so remote from what is actually happening today – “failure to comply with such provisional measures” (Art 40), “severance of diplomatic relations’ (Art 41), “Should the Security Council consider that measures provided in Article 41 would be inadequate….” (Art 42) – that even to mention Chapter VII would appear to me to be mistaken, incongruous, if not a little silly. I like the way the Resolution was drafted.
As for our wider concerns, boots on the ground by all means, but please not our boots again. Once you’re in, you are stuck and it’s devilishly difficult to get out again.
Brian writes in response to Robert: I should have disallowed this comment, which is about the pros and cons of bombing, not about whether the UN resolution authorises the use of force, which is the subject of my post — please re-read its footnote.
In response to Paul Sharp: As to why the resolution is not within the ambit of Chapter VII, possible explanations are those tentatively suggested by Oliver Miles and Derek Tonkin (second comment) above, both of which seem to me to make sense. Another possibility is that the Council, or some of its members, regard a Chapter VII resolution as the UN’s nuclear weapon — to be kept in reserve and used only in last resort situations and when absolutely necessary, which it obviously isn’t in present circumstances.
I love your recollection of the RAF sketch in Beyond the Fringe (“We need a futile gesture at this stage”; “Or is it au revoir?” “No, Perkins.”). Happily the key parts of it survive on YouTube: https://www.youtube.com/watch?v=Y5YW4qKOAVM. Unforgettable.
In response to Pete Kercher: I’m glad to say that I don’t share your fears that the effect of the resolution will be greatly to widen the potential use, or misuse, of the doctrine of the right of self-defence, if only because the resolution makes no reference to self-defence or to Art. 51 of the Charter — as I point out in the postscript, before the footnote, of my post. In the explanation of vote after the adoption of the resolution France, as its author and main sponsor, suggested a connection, but I think unconvincingly.
As to your other very proper concern, that we shall increasingly see international military action outside the UN framework, the commendable fact that France went to the Security Council promptly to seek, negotiate and obtain UN authority for the use of force against ISIL and other similar groups is surely a useful precedent for the future — unlike NATO before its attack on Yugoslavia over Kosovo (NATO didn’t even bother to seek UN authority because it was obvious that Russia would veto it, a bizarre reason for flouting the UN Charter), or the US and UK and others before attacking Iraq (in that case they tried and failed to get Security Council authority for the attack as there was no majority in the Council willing to support them — no veto was cast and no veto would have been necessary, but they went ahead anyway, of course). The Council authorised the use of force in Afghanistan and Libya but in both cases it’s very plausibly claimed that the western forces involved seriously exceeded the carefully worded mandates laid down by the UN, which has made Russia, and probably China, understandably cautious about agreeing to future grants of such authority.
In response to the first and second comments by Derek Tonkin: I’m very grateful both for your agreement about the status of the resolution and for your two examples of precedents, which seem to me to put the matter beyond doubt. I also think there’s much force in your second comment, although since Chapter VII is deliberately drafted in such a way as to cover a wide range of possible situations and to suggest an equally wide range of possible procedures for dealing with them, it’s inevitable that much of it will be irrelevant, even laughably so, to any one specific situation that might arise.
I don’t necessarily agree with your final paragraph (please not UK boots on the ground) on this occasion because of the unique character of the ISIL problem and the impossibility of dealing with it other than militarily, including the use of ground forces, and the probable incapacity of the regional armies to do the job on their own. But that gets us into territory far beyond the subject of this post.
In response to Oliver Miles: I referred to “Labour” MPs as likely to be reassured about legality when it comes to a vote in the house of commons on whether to bomb ISIL in Syria, because the prime minister’s success or failure to win a majority in favour of bombing will probably hinge on the number of Labour MPs prepared to vote for bombing in defiance of Mr Corbyn’s instruction to them to abstain. But I agree that other MPs will also have been reassured on the legality point by the UN resolution, notwithstanding Mr Corbyn’s reported (and for the reasons in my post, surely mistaken) belief that the resolution merely expresses solidarity with France without authorising the use of force.
On the decision not to go for a Chapter VII resolution, please see my reply, above, to Paul Sharp on the same point. It had occurred to me too that the Russians or Chinese or both might have declined to support a Chapter VII resolution for some doctrinal reason of their own.
I don’t think we need to wait for Chilcot to know all the things that went wrong over Iraq — the lies (plural), the misrepresentations of the true objectives of the attack and of the intelligence and of the French position, the failure to predict the situation after the overthrow of the régime, the failure to plan for the post-invasion problems, the reliance on Iraqi exile con-men, the inability to understand the intricacies of intra-Iraqi relationships, the mad pipe-dream of establishing a pro-western secular oil-producing state in the heart of the middle east. The insane overall idea that all you needed to do was overthrow the evil Saddam by shock and awe, and everything else would fall effortlessly into place after that, is certainly fully applicable to ISIL/Syria/Iraq. Cameron’s explicit desire to get stuck into the bombing now, before there’s anything resembling a political settlement between the Assad and anti-Assad forces and groups, may come to be regarded as another comparable blunder — with the major differences that this time the Russians are onside, there’s an authorising UN resolution, and military action against ISIL in both Syria and Iraq by both Russia and major western powers is already taking place.
But this too is straying beyond the subject of the post. I understand your frustration over the narrow limits I have set to comments on my post. If you would care to write and email to me a piece for Ephems on whether we should now join in bombing Syria, and if not why not, I’ll be delighted to post it on this blog under your name, and to open the batting with my own comments on it! Your article on the Guardian’s online Comment is Free (http://bit.ly/1voulHH) is fascinating and splendidly provocative, but a lot has happened since you posted it on 26 September 2014, almost 26 months ago.
Brian
UNSCR 2249 does not require any member to act but it must authorise force if they choose to do so. No doubt, any force used will have to be carefully targeted etc. I don’t think the resolution can really be read any other way but it leaves one wishing that these matters were put beyond any argument. Interestingly, the PM has used Article 51 has his main justification for military action. I believed that Art 51 supported the killing of terrorists a few months ago BUT the legality of these cases depends on the specific facts and security prevents us knowing all of those. I believe that, certainly since the Paris attack and probably before, Art 51 permits military action against ISIL. The wisdom of such action is another matter about which, at your request, I make no comment.
My latest post is
http://obiterj.blogspot.co.uk/2015/11/extending-british-military-action-to.html#more
You miss one major point. The pre-amble reaffirms the recognition of sovereign states rights and item 5 requires compliance with the UN Charter. This means that the permission of the Syrian Government is required to carry out attacks on Syrian territory.
Why is this being ignored?
Brian responds: Nothing in the Charter, nor in the preamble to UNSCR 2249, requires the consent of the government of the country in whose territory a Security Council resolution has authorised — indeed “called for” — the use of force for defined purposes by other countries. Such consent is obviously needed, by logic and implication rather than expliicitly under the Charter, where country A uses force in country B in collaboration with and at the request of country B’s government which is acting in its own self-defence under Article 51 of the Charter. But in UNSCR 2249 there’s no reference to Art. 51 or to self-defence. The Security Council is plainly authorising the use of force, including bombing, against Da’esh and other terrorists in Iraq and Syria under the powers given to it by the Charter. The question of the consent of the Syrian government doesn’t arise. The Russian bombing of Syria was already legal (under Art. 51) before the adoption of UNSCR 2249 because Russia was acting at the request of the Syrian government. The same thing applied before UNSCR 2249 to the bombing of Daesh in Iraq (but not Syria) by the western coalition, including the UK, because we were and are acting at the request of the Iraqi government under the latter’s ‘inherent’ right of self-defence, as confirmed by Art. 51. In both these cases UNSCR 2249 provides additional legitimacy; but in my view (not universally shared) it’s the only basis for the legitimacy of western bombing of Daesh in Syria. But that is quite enough to provide legitimacy, notwithstanding the bizarre assertion in today’s Guardian editorial that the resolution does not authorise bombing of Da’esh in Syria.
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,
If you don’t respect the sovereign rights of the Syrian government to determine who bombs on their territory how are you in compliance with the UN Charter? This was a reason that there was no support previously for a UK government proposal to bomb in Syria. “Prevent and suppress” ISIL can be done with closing the borders and preventing funding and arming of ISIL and Al Nusra (also in the resolution) by Saudis, etc (as per the evidence provided by Russia at the G20). The resolution gives no specific mandate for military action that is not consistent with sovereign rights. In order to recognise the sovereignty of Syria actions must be consistent with the wishes of the Syrian government (as in the Iraq case). The Syrian government is capable of dealing with the situation – especially if foreign governments desist from their illegal actions in attempting to overthrow the government of Syria.
In the Guardian’s review of Cameron’s case they talk about his second test. This talks about regime change and a moderate opposition that does not exist – since Al Nusra Front controls supposed moderates. This indicates that British government action is intended to interfere in the sovereignty of Syria by pushing for regime change – not consistent with the UN Charter.
http://www.theguardian.com/politics/2015/nov/26/syria-airstrike-case-david-cameron-seven-points-analysis
I’m not sure that the UN’s position on the use of force was ever in question. My understanding of the counter-argument to the legality is whether the type of force (i.e bombing with no clear goal beyond that) satisfies the UN’s definition of a “prevent[ing] and suppress[ing] terrorist acts “. Surely the resolution is not suggesting that all colours of military action are fair-game in the carrying out of “peace and stability”.
ISIS – Islamists Serial Rapists-Terrorists : Hostis Humani Generis
The UNSC Resolution 2249 (2015) offers the following salient element that among all terrorist groups constituting a major challenge on a regional or a global scale, ISIS is singled out as a ‘global and unprecedented threat to international peace and security,’ a qualification so far no terrorist group has ever been awarded.
Thus, being a “global and unprecedented” threat to international peace and security ISIS requires primary attention, it is not inconceivable that the Islamic State of Iraq and Syria (ISIS) group is still committing genocide and other crimes against the Yazidi minority in Iraq, as a statement by the United Nations commission investigating human rights abuses in Syria had stated on last Wednesday, 3rd. August 2016.
The predicament of many innocent victims and their families will definitely continue without the essentially effective planning of military actions by the UN Military Staff Committee in ensuring its revival from a long period of dormancy in the pursuit of individual criminal responsibility in the Joint-Criminal Enterprise (JCE) via prosecutions in a UN-sanctioned International Penal/Criminal Tribunal.
http://www.independent.co.uk/news/world/middle-east/isis-leader-abu-bakr-al-baghdadi-exposed-as-serial-rapist-of-hostages-who-made-women-his-personal-10456237.html
http://www.cbsnews.com/news/united-nations-says-isis-yazidi-genocide-ongoing-in-iraq/
http://www.reuters.com/article/us-mideast-crisis-syria-yazidi-idUSKCN0Z20WR
http://www.un.org/press/en/2015/sc12132.doc.htm