On 20 November 2015, the United Nations Security Council unanimously passed Resolution 2249 (2015) “unequivocally” condemning the spate of recent “horrifying” ISIL terrorist attacks across the world, including the most recent attacks in Paris. The unanimity expressed was unusual in the context of military operations; previous draft resolutions aimed at military intervention in Syria have been vetoed by Russia and China. However, in the context of responses to global terrorism, the unanimity was less surprising.
What is particularly welcome in this Resolution is the explicit reference to the need for States to comply with international law, “in particular, with the United Nations Charter, as well as human rights, refugee and humanitarian law”. Nevertheless, the Resolution is not an explicit authorisation of the use of force under Chapter VII of the United Nations Charter, leaving the authority to use military force a little unclear. The express wording of the Resolution “Calls upon Member States that have the capacity to do so to take all necessary measures in compliance with international law … on the territory under the control of ISIL … in Syria and Iraq”.
As is always the case with resolutions of this type, the language is deliberately obscure and open to interpretation. On the one hand, the lack of reference to Chapter VII of the Charter, which provides authority to the UNSC specifically to authorise the use of force, suggests that the measures used should not involve the use of force. However, this is not explicitly stated in the Resolution. Furthermore, the explicit reference to the requirement for action to be in accordance with international law further suggests that force should not be used.
On the other hand, it seems that since the UNSC passed Resolution 678 in 1990, which authorised the use of force to remove Iraqi forces from Kuwait in 1990, the words “all necessary means / measures” have been treated as code for the authorisation of the use of force, although Resolution 678 was passed as a Chapter VII measure. Additionally, it is apparent that a number of States, including the US and France, as well as Russia, have been carrying out bombing attacks against targets in Syria and the Resolution does not condemn such attacks.
Accordingly, the deliberately obscure language used in Resolution 2249 allows all states, and in particular, the five permanent members, to decide how each wishes to interpret the wording of the Resolution and construct a legal justification for or against the use of force. It remains to be seen how the United Kingdom will interpret the effect of the Resolution, but it is likely that the government will use the Resolution to push for another vote in the House of Commons in pursuit of Parliamentary authority to use force against ISIL. Nevertheless, it is the obscurity of the precise language used in the resolution that makes reference to human rights, refugee and humanitarian law so important and welcome. Ultimately it lays down a challenge to all those involved in the military action against ISIL to act responsibly.
The notion of responsibility is an important concept in international law both in terms of historic liability; that is, being responsible for a past breach of the law; and in terms of the allocation of future responsibility. To some extent, international law may be understood as a mechanism for the allocation of responsibilities in the international sphere. The link between the concept of responsibility and the role of the United Nations in maintaining peace and security is apparent in the so-called Responsibility to Protect doctrine (R2P). R2P provides a framework for UN Executive Authority to intervene in states to prevent genocide, war crimes, crimes against humanity and ethnic cleansing. It envisages a staged process of intervention that seeks to resolve conflict without military intervention but it is one that provides for the possibility of military intervention as a final step where all other measures aimed at bringing about a peaceful resolution have failed.
The fundamental responsibility envisaged by R2P lies with the territorial state, whose sovereignty is said to be conditional on ensuring the protection of its citizens. Thus sovereignty is itself understood as responsibility. Where the territorial state is unwilling or unable to fulfil its primary responsibility, the doctrine envisages, and provides for, the residual responsibility of the international community which, in practice, is best understood as UN Executive Action.
The R2P doctrine is controversial and to some extent unproven. For example, it failed to prevent the civil unrest in Syria which lead initially to civil war and ultimately to the present situation where ISIL controls large parts of Syrian territory. Similarly UNSC authorised action in Libya in 2013 arguably left citizens of that country more open to mass atrocity than they were before the intervention. However, in both cases, the UN and the states that led the intervention appeared to be impatient of and unwilling to wait for diplomatic efforts to bear fruit and saw military intervention as anything but a last resort.
R2P is triggered by the potential for genocide, crimes against humanity, war crimes and ethnic cleansing. Lawyers will argue about whether terrorism can be included in any of these categories. However, even without that determination, the repeated allegations of mass beheadings in ISIL-controlled areas, as well as attacks against Yazidi Christians and other Christian groups would undoubtedly be sufficient to trigger an R2P response. However, given the nature of ISIL and the apparent impossibility of engaging with it diplomatically, it would seem that the only R2P response is a military one.
For many, the thought of a military response against ISIL is unacceptable given the inevitable further suffering that would ensue. Perhaps that suffering can be justified in terms of avoiding the potential greater suffering for many others were ISIL not eradicated. If military force is used, the application of human rights, refugee and humanitarian law will go some way to minimise further suffering but it will not eradicate it.
UNSC Resolution 2249 is obscure and open to interpretation but perhaps that was necessary in order to achieve unanimity. Its reference to the importance of complying with international law is welcome. It arguably provides the best that is achievable in terms of legal clarity for intervention against ISIL, including military intervention. The question is now a strategic one that governments and the UN will have to consider in the coming days, weeks and months.
Professor J. Craig Barker is Professor of International Law and Dean of Law and Social Sciences, London South Bank University