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 commentators 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.