Experts unite to say that it is an ‘abuse’ to invoke ‘self-defence’ in response to terrorism

A collective open letter has been signed by many professors of international law and legal researchers. Entitled “A plea against the abusive invocation of self-defence as a response to terrorism” it has been circulating on the internet for a few weeks.

Among the signatories, of which there are more than 230 professors and almost 50 assistants/researchers (see the list available here as at 25 July; it is updated regularly by the Centre de Droit International de l´Université Libre de Bruxelles), there are distinguished members of the international law community as well younger practitioners. The objective of this collective initiative is to challenge the invocation of the legal argument of self-defence by several states in the context of the so called “war” against Daesh.

As is well known, the UN Charter has been extremely clear on the unique exception to the prohibition of the use of force since its adoption in 1945 — self-defence — and military operations authorised by Security Council under Chapter VII of the Charter. However, since 9/11, interpretations made by the United States and its allies have been made to give legal support for unilateral military operations in the territory of a state without the previous consent of its authorities. In a recent note published on the website of the European Journal of International Law (EJIL), we read that: “Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action.”

The use of force in self-defence must be exercised in conformity with the conditions laid down in international law, and particularly the UN Charter. On this very particular point, it must be recalled that France presented to the Security Council a quite surprising draft resolution after the Paris attacks of 13 November last year (see the full text here of the “blue version” circulated among UN delegations) which avoided any reference to the Charter in its operative paragraphs; it is possibly a great “première” of French diplomacy at the United Nations and was analysed in a short note. Resolution 2249 was used a few weeks later in a British parliamentary debate to justify air strikes in Syria, without major clarifications (see this modest note about this).

The text of the global open letter (available here in French, English, Portuguese, Spanish and Arabic) considers, among other arguments, that: “Thus, numerous military interventions have been conducted in the name of self-defence, including against Al Qaeda, Daesh or affiliated groups. While some have downplayed these precedents on account of their exceptional nature, there is a serious risk of self-defence becoming an alibi, used systematically to justify the unilateral launching of military operations around the world. Without opposing the use of force against terrorist groups as a matter of principle — particularly in the current context of the fight against Daesh — we, international law professors and scholars, consider this invocation of self-defence to be problematic. In fact, international law provides for a range of measures to fight terrorism. Priority should be given to these measures before invoking self-defence.”

Furthermore, the signatories of this collective letter state: “…we consider that terrorism raises above all the challenge of prosecution and trial of individuals who commit acts of terrorism. A variety of legal tools are available in this respect. They relate first and foremost to police and judicial cooperation (chiefly through agencies such as INTERPOL or EUROPOL), aiming both at punishing those responsible for the crimes committed and preventing future occurrence of such crimes. Although there is certainly room for improvement, this cooperation has often proved effective in dismantling networks, thwarting attacks, and arresting the perpetrators of such attacks. By embracing from the outset the ‘war against terrorism’ and ‘self-defence’ paradigms and declaring a state of emergency, there is a serious risk of trivialising, neglecting, or ignoring ordinary peacetime legal processes.”

It must be noted that international law scholars and researchers around the world can sign this document until 31 July. The text recalls a certain number of very clear rules that the diplomats in New York know better than anyone — despite the ambiguous interpretations made by some of their colleagues, in particular since the beginning of air strikes in Syria, without the consent of its de facto authorities — On the extremely vague notion of an ‘unwilling or unable’ State, justifying, for some diplomats, military operations on its territory without its previous consent, I refer to this very recent article published in The Netherlands.

The collective document also states that: “…the maintenance of international peace and security rests first and foremost with the Security Council. The Council has qualified international terrorism as a threat to the peace on numerous occasions. Therefore, aside from cases of emergency leaving no time to seize the UN, it must remain the Security Council’s primary responsibility to decide, coordinate and supervise acts of collective security. Confining the task of the Council to adopting ambiguous resolutions of an essentially diplomatic nature, as was the case with the passing of resolution 2249 (2015) relating to the fight against Daesh, is an unfortunate practice. Instead, the role of the Council must be enhanced in keeping with the letter and spirit of the Charter, thereby ensuring a multilateral approach to security  /…/  However, the mere fact that, despite its efforts, a State is unable to put an end to terrorist activities on its territory is insufficient to justify bombing that State’s territory without its consent. Such an argument finds no support either in existing legal instruments or in the case law of the International Court of Justice. Accepting this argument entails a risk of grave abuse in that military action may henceforth be conducted against the will of a great number of States under the sole pretext that, in the intervening State’s view, they were not sufficiently effective in fighting terrorism.”

It must be noted that, in February, Canada’s new government decided to cease air strikes in Syria and Iraq. We read in this official note produced by the Canadian Armed Forces that: “ In accordance with Government of Canada direction, the Canadian Armed Forces (CAF) ceased air strike operations in Iraq and Syria on 15 February 2016. From their first sortie on 30 October 2014 to 15 February 2016, the CF-188 Hornets conducted 1378 sorties resulting in 251 airstrikes (246 in Iraq and 5 in Syria), expended 606 munitions and achieved the following effects: 267 ISIL fighting positions, 102 ISIL equipment and vehicles, and, 30 ISIL Improvised Explosive Device (IED) factories and ISIL storage facilities.”

In 2015, a Canadian scholar concluded an extremely interesting article on air strikes in Syria and Iraq in the following terms: “However, 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 non-state 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. There appears to be a lack of consensus on whether opinion juris and state practice have accepted the ‘unwilling or unable’ doctrine as customary international law. There is no escaping the conclusion that Canada’s air strikes on Syria are on shaky, or at least shifting, legal ground.”

The signatories of the open letter, the number of whom is increasing daily, include scholars from different continents and of different ages; they conclude by reaffirming that: “The international legal order may not be reduced to an interventionist logic similar to that prevailing before the adoption of the United Nations Charter. The purpose of the Charter was to substitute a multilateral system grounded in cooperation and the enhanced role of law and institutions for unilateral military action. It would be tragic if, acting on emotion in the face of terrorism (understandable as this emotion may be), that purpose were lost.”

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