hms iron duke

hms iron duke

Monday, 23 November 2015

UNSCR 2249: Are Power, Strategy and Law Aligned in the Fight Against IS?

“Determined to combat by all means this unprecedented threat to international peace and security”.
United Nations Security Council Resolution 2249 (2015), 20 November, 2015

Alphen, Netherlands. 23 November. Today, the British Government will announce the latest Strategic Security and Defence Review (SDSR 2015). Some colleagues have written to me asking if I will be commenting on the review. To be frank, I am fully aware of most of the review’s contents. However, I still want to read the review in full and reflect before I comment later in the week. Today, I want to consider last Friday’s French-drafted United Nations Security Council UN Security Council Resolution 2249 (2015) which authorised UN Member States to use “all means” against Islamic State. In effect, France is seeking both legitimacy and legality in its armed response to the Paris terror attacks. Therefore, the French strategy involves not just the creation of an UN-sanctioned grand coalition to take the fight to IS, but reinvigoration of the flagging institution of UN-sanctioned international law. Therefore, the French strategy begs a critical question; did 2249 actually authorise the use of force against IS?

On the face of it the answer would appear to be no. This is because 2249 was not issued under Chapter VII of the UN Charter. Chapter VII covers “Action with Respect to Threats to the Peace, Breaches to the Peace, and Acts of Aggression”. There are two articles under Chapter VII which are considered the formal triggers for the use of force under the UN Charter; articles 42 and 51. Article 42 states: “Should the Security Council consider that measures provided for in Article 41 [non-military measures] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”. Article 52 reinforces Article 42 by stating: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”.

Interestingly, the language in 2249 implies that IS has some elements of a state, not just a group. Indeed, 2249 states 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 foreign 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”.

Now, I am no expert on UN law but there does appear to be an inherent tension within 2249 between its determination, “…to combat by all means this unprecedented threat to international peace and security”, and its call for “…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”. Indeed, the first sentence implies clearly that the use of force is now authorised against IS because of the scale of the threat it poses. However, use of the word ‘necessary’ in “all necessary measures” in compliance with international law, suggests a further authorisation would be needed by the UN Security Council to use greater force across a wider scope over a larger area against IS, because current action must be seen as policing rather than self-defence or the armed upholding of the UN Charter. 

2249 then goes to reinforce the policing argument by suggesting that IS and the other terrorist groups cited for, “…for committing or otherwise responsible for terrorist acts, violations of international humanitarian law or violations or abuses of human rights must be held accountable”. However, without the use of force it is hard to see given the nature of the battlefield and the scope of forces ranged therein how those responsible could be brought to justice and under what jurisdiction. Critically, 2249 then goes on to state that: “Member States that have the capacity to do so…eradicate the safe haven they have established over significant parts of Iraq and Syria”. How could such an aim be achieved without the significant use of armed force?

So, what does 2249 tell us? First, there were significant concerns on the part of China and Russia about the need to preserve Syria’s state sovereignty. In Russia’s case this means preservation of the Assad regime as the ‘legitimate’ governing body. There is certainly no mention of a ‘managed transition” to some other form of government, as desired by Western powers. Second, the UN and the 15 members of the UN Security Council are unclear whether to treat IS as a de facto aggressor ‘state’, or a non-governmental group. As such the authorised response hovers between a policing action of the type used against Malaysian insurgents by the British in the 1950s, and some implicit form of self-defence, even if such action is not under Chapter VII.

This ambiguity suggests three further tensions. First, at some point the UN Charter itself may be in need of modernising. Second, that for those states committed to the armed fight against IS 2249 can be interpreted as an implicit authorisation of the use of force. Third, those states still concerned about the supremacy of state sovereignty, such as China but most notably Russia, can claim some form of control over the nature and extent of force used in that authorization is only against ‘terrorist’ groups, which are identified in 2249 as Al-Qaeda, IS, and the al-Nusra Front. 

In conclusion, any legal impediment to the creation of the grand coalition Paris seeks, and thus the sustained use of force against IS, seems to have been removed. However, Moscow will also interpret 2249 as legalisation of its attacks against all anti-Assad forces. What constraints remain are those of power and strategy. Specifically, the degree to which the US wishes to further its involvement and indeed its leadership of the non-Russian, Iranian and Syrian parts of the campaign in an election year, how much force France can actually bring to bear against IS, the scope of Russian, Iranian and Syrian military action, and the degree of autonomy/co-operation they seek from/with Western forces, and critically the degree to which other French allies, most notably the British, move to reinforce US, French and, indeed, Australian action.

By attacking Paris IS may just have succeeded in not only creating a grand coalition against it, but in so doing stalled the growing geopolitical tensions between the great powers, and reinvigorated the relationship between international law and the use of force. The Assad regime is clearly strengthened. Quite a feat of ‘arms’!

Julian Lindley-French

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