Clarifying the UN resolution on airstrikes on Syria

British Prime Minister David Cameron appealed to Members of Parliament to vote in favour of airstrikes against Daesh positions in Syria in order to “keep the British people safe” from the threat of terrorism.

The time given for the debates prior to the vote was short and there was a sense of urgency in the matter, this is very useful, especially as the arguments presented were simple.

In a recent article entitled “Voting on Military Action in Syria“, the journalist says: “In his address to Parliament, David Cameron insisted that the UNSC Resolution provides a legal basis for military action”.

On August 30 2013, a similar vote took place however the motion was rejected by 285-272 MPs.

At the opening of a 10-hour Commons debate yesterday, Cameron said the UK had no other choice. “I believe that the UK should now join coalition airstrikes against ISIL in Syria,” he said, using another acronym for Daesh. “On 20 November 2015, the UN Security Council unanimously called on Member States to use all necessary measures to prevent and suppress terrorist acts committed specifically by ISIL, and to deny them safe haven in Syria and Iraq.”

He indicates just after quoting Resolution 2249 that “there is a clear basis for military action against ISIL in Syria.”

Which coalition are we talking about?

In September 2014 the US announced the formation of a coalition to defeat Daesh; some 60 countries were included in the official list of members. It was named the “Global Coalition to Counter ISIL”. However, Cameron seems to refer to another coalition, or at least, to a branch of “The Global Coalition to Counter ISIL” which was setup by the US.

A recent Foreign Affairs Committee report provides information on which countries were involved in the airstrikes in Syria and Iraq: “Airstrikes in Iraq: US, UK, Australia, Belgium (withdrawn), Canada (expected to withdraw), Denmark (withdrawn), France, Jordan, the Netherlands (9). Airstrikes in Syria: US, Australia, Bahrain, Canada (expected to withdraw), France, Jordan, Saudi Arabia, Turkey, UAE (9). Total of 13 states overall.”

The French Minister of Foreign Affairs Laurent Fabius said last month: “Thirty states are engaged militarily in the coalition.” However, when Russia announced its first military operations in Syria in September, the reaction of the so called “Coalition” didn´t included the signatures of 60 or 30 states, but only seven: France, Germany, Qatar, Saudi Arabia, Turkey, the UK and US.

The Global Coalition to Counter ISIL is quite different from Cameron’s “coalition airstrikes against ISIL in Syria” and the numbers used by French officials seem to be extremely far from reality when compared to the exact number of states involved in military operations in Syria and Iraq.

France was the first EU member to bomb Daesh positions in Iraq; Belgium, Denmark and the UK followed in September 2014. However, the difference between Iraq and Syria is that the former gave its formal consent to the US and its allies to help in the fight against Daesh in the country. “We… have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent. The aim of such strikes is to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders,” the letter to the UNSC said.

UNSC Resolution 2249: a confusing text

Cameron’s second argument is the content of UN Resolution 2249. This does not provide any legal basis for airstrikes in Syria. A careful reading of the text shows that the resolution does not mention Article 42 of the UN Charter, which allows the Security Council to authorise states to use force, or even Chapter VII generally; nor does it use the verb “decide”, used when the Security Council adopts a resolution on the use of force.

Recently, international lawyers entitled their analysis of this resolution as “The Constructive Ambiguity of the Security Council’s Daesh Resolution“, using another acronym for Daesh. For the authors: “Resolution 2249, on the other hand, is constructed in such a way that it can be used to provide political support for military action, without actually endorsing any particular legal theory on which such action can be based or providing legal authority from the Council itself. The creative ambiguity in this resolution lies not only in the fact that it does not legally endorse military action, while appearing to give Council support to action being taken, but also that it allows for continuing disagreement as to the legality of those actions.”

A discrete French omission

References to the United Nations Charter in the resolution are the result of Russian insistence; they were not included in the original draft presented by France to the members of the Security Council. Despite public declarations made by the French delegates after the vote on the resolution, it does not justify the legality of France´s airstrikes in Syria.

According to Professor of International Law in the University of Cambridge, Marc Weller: “This declaration represents a very important, albeit risky, application by the Council of its powers even when acting outside of Chapter VII of the Charter. It affects the application of the right to self-defence of states wishing to rely on their own right to self-defence, rather than a right derived from Iraq or from Syrian consent.”

In his conclusion, Weller emphasizes: “In reality, this reluctance has opened up a pandora’s box of potential claims to the use of force in Syria and possibly Iraq. This is because the resolution offers an authoritative interpretation of the facts in relation to international law and the Charter, in particular the right to self-defence.”

Canada´s recent prudent withdrawal

On October 21, the newly elected Canadian authorities decided to suspend airstrikes in Syria as well as in Iraq. In an article published by the Canadian Air Force on the airstrikes, the author concludes that, with regard to airstrikes in Syria “there is a further legal hurdle for Canada to overcome. Unless Canada can attribute Daesh’ attacks in Iraq to Syria, then the question becomes whether Canada may lawfully target Daesh, as a nonstate actor in Syria’s sovereign territory, using the ‘unwilling or unable’ doctrine to prevent Daesh’ extraterritoriality attacks against Iraq. This justification moves significantly away from the Nicaragua, Congo and Israeli Wall cases’ requirement for attribution.”

The author adds: “There is no escaping the conclusion that Canada’s air strikes on Syria are on shaky, or at least shifting, legal ground.”

Despite Cameron´s interpretation of Resolution 2249, from a legal perspective these same conclusions are applicable to airstrikes in Syria by the US and its Arabic allies (Bahrain, Jordan, Saudi Arabia and the United Arab Emirates), as well as by Australia, Canada, France, Turkey and future operations of this kind by the United Kingdom.

Nicolas Boeglin is a professor of International Law, Law Faculty, University of Costa Rica (UCR).

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.