Photo Credit: French Ministry of Defense
By: Lorris Beverelli, Guest Contributor
Since September 2014, an international coalition has been conducting military operations in Syria aimed at degrading and destroying the self-proclaimed “Islamic State” (ISIS). The coalition, including the United States, the United Kingdom, and France, have invoked their right to self-defense and the consent of the Iraqi government to justify their actions, and therefore claim their intervention is legal under international law.[i] As a matter of fact, it is not: they have been operating in Syria under flawed legal justifications. Coalition states would be wise to consider international law; doing so may just open strategic avenues for success.
Articles 2(4) and 51 of the United Nations (UN) Charter, which define the framework for the use of force and self-defense, suggest such a framework is only designed to function between states, and cannot be invoked to counter a threat emanating from a non-state armed group. Similarly, General Assembly resolution 3314 (XXIX) asserts that an armed attack is considered aggression only if it is carried out by one state against another state.[ii] An exception to this could only be decided by the Security Council (UNSC) through a resolution,[iii] but it has never done so in the past.
UNSC resolution 2249, which calls upon Member States to take all necessary measures to prevent and suppress acts of terrorism committed by ISIS,[iv] has also been used to justify the intervention.[v] This document gives, to some extent, international support to the coalition. However, it does not provide any legal justification, as it does not explicitly authorize the use of force.[vi] Indeed, the resolution is not even based on Chapter VII of the UN Charter, which defines the framework the UNSC can use to counter threats and breaches of peace, along with acts of aggression. Also, the language of the resolution is inconsistent with previous practice: since 1991, when military action was approved, the usual term is “authorizes” and not “calls upon”.[vii] In resolution 2249, the latter is used, not the former.[viii]
Moreover, the International Court of Justice has previously rejected invoking self-defense through Article 51 in the face of threats from a non-state armed group.[ix] Furthermore, only a recurrent handful of states have been advocating for expanding the interpretation of the right to self-defense, which is insufficient to change the interpretation of Article 51 or form customary law.[x] Also, while Iraq can consent to airstrikes within its own territory, such consent cannot justify airstrikes in Syria, since it is another state that enjoys its own sovereignty.[xi] Finally, even if Syria was unwilling or unable to combat ISIS within its borders, a non-consented intervention on its territory or unauthorized by the UNSC would still be illegal.
It thus follows that the coalition strikes in Syria are unlawful under international law. Yet, the bombing continues. It seems that few pay attention to such illegality, perhaps because policy implications are not quite perceptible, or because of the size of the coalition itself. However, thinking that policy overshadows international law is erroneous: the latter is part of the former. Consequently, international law can have implications for policy.
Carl von Clausewitz stated that war is the continuation of policy; war is a tool used to achieve defined political aims. Wars are not only won through combat and, to achieve victory, a strategy is needed. Effective strategies must include a wide range of different means: diplomatic, military, economic, and others. It happens that international law can be one of these means, since it might affect the chances of success of the overall strategy. Consequently, policymakers and strategists would be wise to include it in their toolkit. The Libyan situation of 2011 provides a relevant insight for incorporating international law into strategy.
The intervention in Libya, Operation Unified Protector, was launched by the North Atlantic Treaty Organization (NATO) on March 23, 2011. The intervention was initially legal thanks to UNSC resolution 1973, which embodied the concept of Responsibility to Protect (R2P). However, despite the military success it achieved, it ended as a political failure. NATO went beyond the scope of the resolution, and instead of using force only to enforce the content of the document, the alliance eventually supported the rebels in ousting of the Gaddafi regime. This overstepping, instead of ending instability, only made the situation worse, and undermined the credibility of the R2P doctrine thereafter.
Predicting the outcome of the Libyan intervention, even if the resolution had been respected, is difficult. But the violation of international law entailed significant political costs for the interveners, whose actions, policy, and credibility were thrown into question.[xii] Moreover, it had a dramatic impact for the future: it eliminated a potential solution to the current Syrian crisis. Indeed, since the end of operation Unified Protector, the international community has been reluctant to utilize the concept of R2P, with Russia and China notably refusing to adopt a text similar to UNSC resolution 1973, in part because of its misuse during the Libyan crisis.[xiii] The western states and their allies are now blocked and cannot use any UNSC resolution to intervene in Syria, forcing them to develop a questionable legal argumentation to justify their initiative which, once again, sheds doubt on their actions, policy, and credibility.
Ignoring international law can therefore be dangerous for current and future policies, and have negative and lasting consequences, as illustrated by both the Libyan and Syrian situations. International law should not simply be dismissed because there may be no perceptible or concrete repercussions. It can provide credibility, and when used appropriately, it can help achieve the political aims of a conflict. Thus, it can be an integral part of any strategy, and should at the very least be considered before taking action. Failure to do so could mean failure to achieve the political aims, and consequently, failure to achieve victory.
[i] UNSC, Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, S/2014/695; Identical letters dated 25 November 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2014/851; Identical letters dated 8 September 2015 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2015/745
[ii] UN General Assembly, Resolution 3314, December 14th 1974, A/RES/3314 (XXIX), Annex, Definition of Aggression
[iii] Ibid, Article 4
[iv] UNSC, Resolution 2249, November 20th 2015, S/RES/2249 (2015), §5
[v] Memorandum to the Foreign Affairs Select Committee – Prime Minister’s Response to the Foreign Affairs Select Committee’s Second Report of Session 2015-2016: The Extension of Offensive British Military Operations to Syria, November 2015, 17
[vi] For example, see UNSC, Resolution 678, November 29th 1990, S/RES/678 (1990); Resolution 929, June 22nd 1994, S/RES/929 (1994); Resolution 1464, February 4th 2003, S/RES/1464 (2003); Resolution 1528, February 27th 2004, S/RES/1528 (2004); Resolution 1973, March 17th 2011, S/RES/1973 (2011); Resolution 2127, December 5th 2013, S/RES/2127 (2013)
[vii] LATTY, Franck, “Le brouillage des repères du jus contra bellum”, Revue générale de droit international public 120 (2016), 33
[viii] UNSC, Resolution 2249, November 20th 2015, S/RES/2249 (2015), §5
[ix] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory opinion, I.C.J. Reports 2004, §139; Case Concerning Armed Activities on the Territory of the Congo, Judgment, I.C.J. Reports 2005, §§146-147
[x] For example, see GRAY, Christine, International Law and the Use of Force, Foundations of Public International Law, Third edition, Oxford: Oxford University Press, 2008; CORTEN, Olivier, Le droit contre la guerre, Second edition, Paris: Pedone, 2014
[xi] LATTY, Franck, op. cit., 17
[xii] PARIS, Roland, “The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention”, International Peacekeeping 21 (2014), 584
[xiii] Ibid, 587