The Role of The Security Council in The Use of Force Against The Islamic State' (2016)

chapter 3
The Role of the Security Council in the Use of Force

against the Islamic State
Priya Urs
Abstract
The destabilization of Iraq and Syria by the Islamic State in Iraq and the Levant and
Al Nusrah Front has ignited extensive global debate about how to quell the groups
territorial gains in the region, and, preferably, to do so in a manner that is compliant
with international law. In June 2014, the isil proclaimed the formation of an Islamic
caliphate, boasting swathes of territory straddling the border between Iraq and Syria.
A growing number of States have joined forces in a United States-led coalition against
the isil, with varying contributions including airstrikes, military aid and humanitarian
assistance. The on-going crisis in the Middle East presents international lawyers with
an opportunity to re-evaluate the system of collective security envisaged in the 1945
Charter of the United Nations. This article evaluates the Security Councils approach
in addressing the situation in the Middle East as an ongoing threat to international
peace and security, focusing on three areas in which it may play significant roles: 1. its
participation, if any, in the exercise of self-defence under Art. 51; 2. its authorization of
forcible and non-forcible measures under Chapter vii; and 3. the enduring obligation
of multilateral cooperation it imposes upon States in the context of terrorism.
Keywords
Jus ad bellum Self-defence Art. 51 un Charter un Security Council Collective
Security Chapter vii Terrorism Foreign Terrorist Fighters
i Introduction
The destabilization of Iraq and Syria by the Islamic State in Iraq and the Levant
(isil) and Al Nusrah Front (anf) has ignited extensive global debate about
how to quell the groups territorial gains in the region, and, preferably, to do
so in a manner that is compliant with international law. In June 2014, the isil
koninklijke brill nv, leiden, 6|doi 10.1163/18757413-00190004
66
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proclaimed the formation of an Islamic caliphate,1 boasting swathes of territory straddling the border between Iraq and Syria. A growing number of States
have joined forces in a United States (us)-led coalition against the isil,2 with
varying contributions including airstrikes, military aid and humanitarian
assistance.
This on-going crisis in the Middle East presents international lawyers with
an opportunity to re-evaluate the system of collective security envisaged in the
1945 Charter of the United Nations. That the Security Council (sc) enjoys primary responsibility for the maintenance of international peace and security is
evident from Charter provisions; but has its approach in addressing this threat
to international peace and security been satisfactory? Arguably, the Councils
uncomfortable silence on the use of force despite invoking Chapter vii of the
un Charter in Security Council Resolutions 2161, 2170, 2178 (2014), 2199 and 2213
(2015) threatens its pivotal status in this centralized framework of collective
security. In this context, this article offers an assessment of the three issues
identified below:
What are States justifications for the use of force against the isil in Iraq
and Syria, respectively? Do they reinforce a paradigm shift in State practice in the context of armed attacks by non-State actors?
Has the sc played a role in legalizing the use of force in Iraq, Syria
and potentially elsewhere? Should the centrality of the scs role in the
jus ad bellum be preserved?
What obligations has the sc imposed on States, non-State actors
and foreign terrorist fighters? In light of the consent-based, multilateral
quality of counter-terrorism conventions, are its law-making Resolutions necessary and desirable?
Before addressing these questions, some explanation is required as to the
scope and limitations of this article. The extent of its contribution is limited
1 M. Bradley, isis Declares New Islamist Caliphate (29 June 2014) The Wall Street Journal,
available at http://www.wsj.com/Articles/isis-declares-new-islamist-caliphate-1404065263
(accessed 21 December 2015).
2 62, according to one report: C. Freeman, Who Is in the Anti-Islamic State Coalition and
What They Are Contributing? (26 September 2014) The Telegraph, available at http://www
.telegraph.co.uk/news/worldnews/middleeast/syria/11124070/Who-is-in-the-anti-Islamic
-State-coalition-and-what-they-are-contributing.html (accessed 21 December 2015); see also A.
Fantz and M. Pearson, Whos Doing What in the Coalition Battle against isis (28 February 2015)
cnn, available at http://edition.cnn.com/2014/10/06/world/meast/isis-coalition-nations/
67
mainly by the fact that the conflict in Iraq and Syria is, unfortunately, still
ongoing, and is one that continues to evolve. Various forms of international
involvement have complicated the conflict considerably. In addition to the
coalition of States carrying out operations against the isil in Iraq and Syria,
reports suggest that Russia has also conducted airstrikes against us-supported
rebel groups in Syria,3 and Turkey has targeted Kurdish forces in northern
Iraq.4 The conflict has spread further: Egypt has conducted airstrikes against
isil targets in Libya,5 and the us has carried out similar operations against
isil loyalists in Afghanistan.6 These developments, among many others, provoke independent questions under the jus ad bellum. This article cannot address them all, and, as such, will focus solely on the use of force in Iraq and
Syria. More recent developments upon which the Council has not yet taken
decisive action will not be specifically addressed.
In addition to acknowledging the changing nature and reach of the conflict,
it is also important to make clear the composition of the threat that exists in
the Middle East today. The sc in its Resolutions and Presidential Statements
generally refers to isil, anf and all other individuals, groups, undertakings
and entities associated with Al-Qaida as those responsible for this evolving terrorist threat.7 While the isil is a splinter group formerly part of Al-Qaida (aq)
operating in Iraq and Syria, anf is an aq affiliate that has, for the m
oment,
3 A. Roth and E. Cunningham, Syrian Forces Begin Ground Offensive Backed by Russian Air and Sea Power (7 October 2015) The Washington Post, available at https://www
.w ashingtonpost.com/world/syrian-activists-russian-air-strikes-pound-rebel-zones
-in-
latest-blows/2015/10/07/fb3be1685cf34e3898f3-f6b75ed53871_story.html (accessed 9
October 2015).
4 H. Pamuk and N. Tattersall, Turkey Launches Heaviest Airstrikes Yet on Kurdish Group
(29 July 2015) Reuters, available at http://www.reuters.com/Article/2015/07/29/us-mideast
-crisis-turkey-idUSKCN0Q30OF20150729?feedType=RSS&feedName=topNews&utm
_source=twitter (accessed 21 December 2015); D. de Luce, Has the US Just Sold Out the
Kurds? (28 July 2015) Foreign Policy, available at http://foreignpolicy.com/2015/07/28/has
-the-u-s-just-sold-out-the-kurds/ (accessed 21 December 2015).
5 Civilians Killed as Egypt Launches Airstrikes in Libya (17 February 2015) Al Jazeera,
available at http://www.aljazeera.com/news/2015/02/egypt-bombs-isil-targets-libya-mass
-beheadings-150216063339037.html (accessed 21 December 2015).

6 Drone Strikes Target Islamic State Fighters in Eastern Afghanistan (7 July 2015) Reuters,
available at http://www.reuters.com/Article/2015/07/07/us-afghanistan-attack-drone-idUSK
CN0PH10W20150707?feedType=RSS&feedName=worldNews (accessed 21 December 2015).
7 See, e.g., unsc Res 2170 (2014) Threats to International Peace and Security Caused by Terrorist Acts (15 August 2014) un Doc. S/RES/2170 (2014).
68
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prioritized fighting the Syrian Government over the implementation of its

ideological goals in Syrian territory.8 States have been more specific in their
references to the two groups; with statements and claims often focused on
addressing the terroristic and military practices of the isil only.9
ii
States Justifications for the Use of Force
1
Iraq: Intervention by Invitation
While the legality of the use of force in Syria remains highly contentious, there
is considerable consensus among participating States that the use of force
on Iraqi soil is justified as intervention by invitation. This is based primarily
on a formal request for international assistance by Iraqs Minister for Foreign
Affairs Ibrahim al-Ushayqir al-Jafari in a letter addressed to the un SecretaryGeneral (sg).10 This request constitutes an expression of consent that operates
outside the scope of the prohibition of the use of force in Art. 2 (4) un Charter,
and prevents the use of force from constituting a violation of Iraqs sovereignty
for as long as it endures.11
As straightforward as this logic appears, the circumstances in which an
incumbent government may invite external intervention are not always clear,
and the legality of this request for assistance (presumably by a representative of the internationally recognized Government of Iraq)12 calls for some
discussion. The International Court of Justice (icj) has in its decisions in
Nicaragua and Armed Activities (drc v Uganda) confirmed that an incumbent
government may invite external intervention on its behalf during an internal
Report of the Analytical Support and Sanctions Monitoring Team established pursuant
to unsc Res 1526 (2004) Threats to International Peace and Security Caused by Terrorist
Acts (30 January 2004) un Doc. S/2014/815 67.
9
Report of the Analytical Support and Sanctions Monitoring Team established pursuant
to unsc Res 1526 (2004) Threats to International Peace and Security Caused by Terrorist
Acts (30 January 2004) un Doc. S/2014/815 7.
10 unsc Letter Dated 25 June 2014 from the Permanent Representative of Iraq to the United
Nations addressed to the Secretary-General (25 June 2014) un Doc. S/2014/440.
11 C. Henderson, Editorial Comment: The Use of Force and the Islamic State (2014) 1 jufil
209, 210; C. Gray, The Use of Force and the International Legal Order in M.D. Evans (ed),
International Law (oup 2014) 618, 627; E. Lieblich, International Law and Civil Wars
Intervention and Consent (Routledge 2013) 1223.
12 Available at http://www.un.org/apps/news/story.asp?NewsID=48665#.VQwUU1rnuxI
69
armed conflict.13 However, determining the threshold of effectiveness below

which a government loses its ability to represent the State and invite outside
support is a difficult exercise.
This is usually the case during full-scale insurgency in which the principle of
non-intervention creates a legal obligation upon other States not to intervene
in support of the incumbent government, allowing the territorys population
to determine its political future independently.14 In this view, external intervention in internal armed conflict would deprive the people in some measure
of their right to decide, violating the political independence of the State facing
insurgency.15
Nevertheless, a strong presumption has traditionally protected the status
of an incumbent government, allowing it to invite external intervention notwithstanding a loss of effective territorial control.16 The continued recognition
of a government capable of extending consent to intervention may be crucial
during ongoing internal armed conflict,17 often justified by the need to ensure
the protection of human rights and of civilians during conflict, and also for the
success of counter-terrorism operations.18
This reasoning is compelling in the context of Iraq. The sc has extended
support to the Iraqi Government in its Presidential Statement19 welcoming
the newly formed Government of Iraq and urging the international community to further strengthen and expand support for the Government of Iraq.20
This weakens the argument that the principle of non-intervention prevents
13
14
15
16
17
18
19
20
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) (Merits) [1986] icj Rep 14, para. 246; Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda) [2005] icj Rep 168, para. 4253.
G. Nolte, Intervention by Invitation in R. Wolfrum (ed), Max Planck Encyclopedia
of Public International Law (oup 2008), available at www.mpepil.com (accessed 21
December 2015), para. 19; D. Wippman, Military Intervention, Regional Organizations,
and Host-State Consent (19967) 7 djcil 209, 212.
O. Schachter, The Right of States to Use Armed Force (1984) 82 Michigan Law Review
1620, 1641.
W.G. Werner, Self-determination and Civil War (2001) 6 jcsl 171, 1812.
C. Kre, The Fine Line between Collective Self-Defence and Intervention by Invitation:
Reflections on the Use of Force against is in Syria (17 February 2015) Just Security, available at https://www.justsecurity.org/20118/claus-kreb-force-isil-syria/ (accessed 9 October 2015).
E. Lieblich, International Law and Civil Wars Intervention and Consent 15455.
unsc Statement by the President of the Security Council (19 September 2014) un Doc.
S/PRST/2014/20.
unsc Statement by the President of the Security Council (19 September 2014) un Doc.
S/PRST/2014/20, para. 1, 8.
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Iraqs Government from requesting intervention on its behalf, and States have
evidently not committed themselves to a rule of non-intervention in this
context.21
The scs approach in this respect may also be a result of the fact that the conflict between the Iraqi Government and the isil in Iraq cannot be described as
a civil war at all.22 The isil, comprising mainly foreign terrorist fighters, does
not seek to represent Iraq through legitimate government, and enjoys little
support within the State.23 Consequently, for as long as the consent of Iraqs
Government exists, the legality of the use of force by other States within its
territory and at its invitation poses no threat to its sovereignty.
2
Syria: Collective Self-Defence under Art. 51 un Charter
Finding a justification for the use of force in Syria is considerably more difficult. Syrian President Bashar al-Assad has publicly stated that his Government is not directly informed about us-led air strikes on Syrian territory,24
and has emphasized a need for legal cooperation, suggesting that the us must
[] start by asking permission from our government to make such attacks.25
Crucially, President Assad has made no formal request for international
21
22
23
24
25
D. Akande and Z. Vermeer, The Airstrikes against Islamic State in Iraq and the Alleged
Prohibition on Military Assistance to Governments in Civil Wars (2 February 2015),
available at http://www.ejiltalk.org/the-airstrikes-against-islamic-State-in-iraq-and-
the
-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/ (accessed 21
December 2015).
C. Henderson, Editorial Comment: The Use of Force and the Islamic State 209, 210.
M. Weller, Islamic State Crisis: What Force Does International Law Allow? (25 September
2014) bbc, available at http://www.bbc.com/news/world-middle-east-29283286; see also
T. Farrell, Are the us-led Air Strikes in Syria legal and what does it mean if they are not?
(23 September 2014) The Telegraph, available at http://www.telegraph.co.uk/news/world
news/middleeast/syria/11116792/Are-the-US-led-air-strikes-in-Syria-legal-and-what-does
-it-mean-if-they-are-not.html (accessed 21 December 2015).
Assad Says Syria is Informed on Anti-is Air Campaign (10 February 2015) bbc, available
at http://www.bbc.com/news/world-middle-east-31312414?utm_source=Sailthru&utm
_medium=email&utm_term=%2AMideast%20Brief&utm_campaign=2014_The%20
Middle%20East%20Daily_2.10.15 (accessed 21 December 2015).
Syrias President Speaks: A Conversation with Bashar al-Assad (March/April 2015)
Foreign Affairs, available at http://www.foreignaffairs.com/discussions/interviews/syrias
-president-speaks (accessed 21 December 2015). See also Syria Offers to Help Fight isis
But Warms against Unilateral Air Strikes (26 August 2014) The Guardian, available at
http://www.theguardian.com/world/2014/aug/26/syria-offers-to-help-fight-isis-but
-warns-against-unilateral-air-strikes (accessed 21 December 2015).
71
a ssistance, without which the icjs threshold for consent to use force remains
unfulfilled.26 un SG Ban Ki-Moon has also acknowledged that airstrikes were
not carried out at the request of the Syrian Government, which was merely
informed beforehand.27 In the same vein, representatives of several States,
such as France and Australia, express concerns about the legality of the use
of force in Syria.28 While some would suggest that the Syrian Government has
impliedly conferred consent through its conduct, this standard is not widely
recognized in international law.29
The more frequently advanced argument that the use of force in Syria is
justified in the collective self-defence of Iraq seems to hold greater promise.
The official position adopted by the us is that its military operations in Syria
are carried out in the exercise of the collective self-defence of Iraq.30 Permanent Representative of the United Kingdom (uk) to the un Mark Lyall Grant
has also stated in a letter to the un sg and President of the sc that the uk
is taking measures in support of the collective self-defence of Iraq as part of
international efforts led by the United States, enabling Iraq to retake control of
its territory by striking isil sites and military strongholds in Syria.31
In assessing these statements, it is necessary first to acknowledge the subtle
distinction between Iraqs consent to the use of force within its own territory,
and its request for international assistance to defend itself against cross-border
26
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (Merits) [1986] icj Rep 14, para. 165.
27 Available at http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?stat
ID=2356#.VYhucFrfCxI (accessed 21 December 2015).
28 C. Henderson, Editorial Comment: The Use of Force and the Islamic State 209, 2112.
29 Daniel Bethlehem proposed a standard of implied consent in Principle 12 of his wellknown Bethlehem Principles; see D. Bethlehem, Principles Relevant to the Scope of a
States Right of Self-Defence against an Imminent or Actual Armed Attack by NonState
Actors (2012) 106 ajil 1, 7. Others refute this view, arguing that implied consent is doubtful under international law; see E. Wilmshurst and M. Wood, Self-Defence against NonState Actors: Reflections on the Bethlehem Principles (2013) 107 ajil 390, 395; see also
D. Tladi, Note and Comment: The Non-Consenting Innocent State: The Problem with
Bethlehems Principle 12 (2013) 107 ajil 570.
30 unsc Letter Dated 23 September 2014 from the Permanent Representative of the
United States of America to the United Nations Addressed to the Secretary-General
(23September 2014) un Doc. S/2014/695.
31 unsc Identical Letters Dated 25 November 2014 from the Permanent Representative of the
United Kingdom of Great Britain and Northern Ireland to the United Nations A
ddressed
to the Secretary-General and the President of the Security Council (26November 2014)
un Doc. S/2014/851.
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terrorist attacks, which may involve the extraterritorial use of force.32 While
there is no need to assert a right of self-defence for the use of force within its
own territory, the use of force in Syria in the collective self-defence of Iraq requires, at the very least, that the anti-isil coalition comply with a number of
procedural safeguards built into the Charter framework. The larger question of
attribution has been reserved for separate discussion in Part ii.3.
To begin with, Art. 51 un Charter explicitly states that measures taken in
self-defence must be immediately reported to the sc; reiterated by the icj in
Armed Activities (drc v Uganda).33 This stipulation has been complied with by
the us on behalf of the coalition in its letter addressed to the un sg,34 and the
uk in identical letters addressed to the un sg and President of the sc.35
The temporal limitation in Art. 51 un Charter that the inherent right of
self-defence may be exercised only until the Security Council has taken the
measures necessary to maintain international peace and security is more
contentious.36 This provision seems to have been ignored not only by States
claiming to use force in the collective self-defence of Iraq, but also, and more
importantly, by the sc itself, casting doubt as to what measures would satisfy
this requirement,37 and whether they have been adopted in the present
circumstances. The relationship between the exercise of self-defence in Art. 51
un Charter and enforcement action in Chapter vii of the un Charter is complex, and will be discussed in greater detail in Part iii.
32
M. Wood, Self-Defence and Collective Security: Key Distinctions in M. Weller (ed), The
Oxford Handbook of the Use of Force in International Law (oup 2015) 649, 654.
33 Art. 51 un Charter, reaffirmed by the icj in Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda) [2005] icj Rep 168, para. 145; see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
34 The us reported to the unsg that it is using force in the exercise of individual and
collective self-defense, as isil and other terrorist groups in Syria are a threat not only
to Iraq but to many other countries, including the us; unsc Letter Dated 23 September
2014 from the Permanent Representative of the United States of America to the United
Nations Addressed to the Secretary-General (23 September 2014) un Doc. S/2014/695.
35 The uk reported to the sc under Art. 51 un Charter that it is exercising necessary and
proportionate force in Syria in the collective self-defence of Iraq; unsc Identical Letters
Dated 25 November 2014 from the Permanent Representative of the United Kingdom of
Great Britain and Northern Ireland to the United Nations Addressed to the SecretaryGeneral and President of the Security Council (25 November 2014) un Doc. S/2014/851.
36 Art. 51 un Charter; see also M. Wood, Self-Defence and Collective Security: Key Distinctions 649, 654, 658.
37 M. Wood, Self-Defence and Collective Security: Key Distinctions 649, 656.
73
The view that collective self-defence permits States to assist an attacked

State even when they have themselves not been the target of the attack has
led to the inclusion of another formal requirement by the icj in Nicaragua
that collective self-defence may be exercised only in response to a request for
assistance by the concerned State.38 This requirement is widely supported by
State practice,39 and has been met in the case of Iraq.
Other justifications for the use of force in Syria are few, and far less convincing. In line with its existing policy in favour of a right to pre-emptive self-
defence, the us has advanced limited claims to exercise individual self-defence
against the Khorasan Group,40 despite the absence of an armed attack against
it.41 Attacks against the nationals of individual States also do not justify the use
of force; their scale is too small.42
Interestingly, the emerging responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity has not
been invoked by States in the conflict in Syria, despite reports by the un High
Commissioner for Human Rights that the isil may have committed genocide,
war crimes and crimes against humanity.43 Only the North Atlantic Treaty
Organization (nato) (not itself involved in the use of force in Iraq or Syria) has
given some indication that the prevention of genocide would justify the use of
38
39
40
41
42
43
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
B. Simma et al. (eds), The Charter of the United Nations: A Commentary vol. ii (oup 2012)
14201.
Khorasan or the Khorasan Group is a covert network of core Al-Qaida external
operations attack planners; Report of the Analytical Support and Sanctions Monitoring
Team established pursuant to unsc Res 1526 (2004) Threats to International Peace and
Security Caused by Terrorist Acts (30 January 2004) un Doc. S/2014/815, 1011.
As Marc Weller observes, an assault on a small number of captured individuals, however
gruesome, is not in law considered an armed attack against their home State capable of
triggering a broader right to self-defence on the part of their home States, allowing them
to launch the present campaign to degrade and destroy is in Syria as such. Islamic State
Crisis: What Force Does International Law Allow? (25 September 2014) bbc, available at
http://www.bbc.com/news/world-middle-east-29283286 (accessed 21 December 2015).
2014) bbc, available at http://www.bbc.com/news/world-middle-east-29283286 (accessed
21 December 2015).
A/HRC/28/18 at 16; see also P. Sands, In the Face of Islamic States Atrocities, Global Inaction is Not an Option (19 April 2015) The Guardian, available at http://www.theguardian
.com/commentisfree/2015/apr/19/islamic-State-atrocities-icc-iraq-syria-nuremberg
-principles?CMP=fb_gu (accessed 21 December 2015).
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force in Syria,44 though nato itself holds no unilateral power of enforcement

in the Charter framework.45 There is some consensus about the primary responsibility of States in this regard,46 but State practice is insufficient to make
a case for unilateral humanitarian intervention based on Syrias failure to protect its population certainly not without sc authorization.47
3
The Use of Force against Non-State Actors
In addition to fulfilling the requirements of Art. 51 un Charter, the ongoing use
of force in Syria gives rise to a more fundamental concern: does international
law recognize a right to use force in self-defence against terrorist attacks? As is
evident from the justifications offered by States for the use of force in Syria today, Art. 51 un Charter originally designed to address the use of force among
States only has come under considerable pressure with the widening of selfdefence claims against the conduct of non-State actors.48
This is especially true in the context of terrorism: States continue to rely on
Art. 51 un Charter to counter terrorist attacks, often with the support of, or at
least without substantial condemnation by, other States.49 In the aftermath of
aqs attacks against the us on 11 September 2001 (9/11), the sc famously condemned the groups actions in sc Resolutions 1368 and 1373 (2001), unanimously acknowledging an inherent right of individual or collective self-defence.
The relevance of this determination, and whether it constituted a legitimate
basis for the use of force against aq and the Taliban in Afghanistan in the form
44
45
46
47
48
49
A. Rettman, nato Describes Russia and Islamic State as Main Threats (15 September
2014) eu Observer, available at https://euobserver.com/defence/125621 (accessed 21
December 2015).
W.M. Reisman, 10th Commission: Present Problems of the Use of Force in International
Law B. Sub-Group on Humanitarian Intervention (2007) 72 Institut De Droit International 237, 246.
60/1. 2005 World Summit Outcome Document adopted by the General Assembly on
24 October 2005, available at http://www.un.org/womenwatch/ods/A-RES-601-E.pdf
(accessed 21 December 2015) A/RES/60/1, para. 1389; Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty (idrc 2002),
para.1.35.
W.M. Reisman, 10th Commission: Present Problems of the Use of Force in International
Law B. Sub-Group on Humanitarian Intervention 237, 2502; C. Gray, A Crisis of Legitimacy for the un Collective Security System? (2007) 56 iclq 157, 167.
T.M. Franck, When, If Ever, May States Deploy Military Force Without Prior Security
Council Authorization? (2000) 4 Sing jls 362, 367.
R. Hanania, Norms Governing the InterState Use of Force: Explaining the Status Quo Bias
of International Law (2003) 27 Emory International Law Review 829, 8558.
75
of Operation Enduring Freedom, has not been uncontroversial,50 but there has
since been growing support for the proposition that a non-State actor can in
fact commit an armed attack for the purposes of Art. 51 un Charter.
In 2005, Judges Kooijmans and Simma in separate opinions in Armed Activities (drc v Uganda) stated: It would be unreasonable to deny the attacked
State the right to self-defence merely because there is no attacker State.51
Conveniently, the text of Art. 51 un Charter is silent on this point.52 While it
is conceptually unproblematic to qualify the conduct of a non-State actor as
an armed attack under Art. 51 un Charter, this does not automatically confer
upon the attacked State a right of self-defence. On the contrary, States continue to view self-defence as a right that exists among them only.53 Consequently, as was the case in Afghanistan in 2001,54 the vast majority of self-defence
claims continue to be made against other States,55 making a degree of State
50
51
52
53
54
55
A. Bianchi and Y. Naqvi, Terrorism in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 574, 577.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
(Separate Opinion of Judge Kooijmans) [2005] icj Rep 168, para. 30; Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Separate Opinion of
Judge Simma) [2005] icj Rep 168, para. 12.
Judge Higgins in her Separate Opinion noted that there is nothing in Art. 51 un Charter that stipulates that self-defence exists only against an armed attack by another State;
see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Separate Opinion of Judge Higgins) [2004] icj Rep. 207, para. 33.
The Definition of Aggression, for example, states that aggression is the use of armed force
by a State against the sovereignty, territorial integrity or political independence of another
State (emphasis added); unga Res 3314 (xxix) Definition of Aggression (14 December
1974) gaor 29th Session Supp 31 vol. 1 142. The Review Conference of the Rome Statute
of the International Criminal Court in Kampala on June 11, 2010 also defines the crime
of aggression in the same way as in the Definition of Aggression; Art. 8 bis, para. 2 Rome
Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002) 2187 unts 90.
us allegation that aq was supported by the Taliban allowed parts of Afghanistan to
be used by aq. Letter dated 7 October 2001 from the Permanent Representative of the
us to the un S/2001/946; C. Gray, International Law and the Use of Force (oup 2008) 200.
Some, like Alexander Orakhelashvili, argue that the texts of unsc Res 1368 and 1373 (2001)
do not suggest that non-State actors can be the source of armed attacks on their own;
A.Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review
inA. von Bogdandy and R. Wolfrum (eds), Max Planck Yearbook of United Nations Law
vol.11 (Brill Nijhoff 2007) 143, 167.
See, e.g., Letters from the Permanent Representative of Israel to the un sg and President of the sc: Responsibility for this belligerent act of war lies with the Government of
Lebanon, from whose territory these acts have been launched into Israel (12 July 2006)
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complicity in an armed attack a prerequisite for the use of force under Art. 51
un Charter.56
The necessary violation of the sovereignty of the State in whose territory
the use of force in self-defence is exercised demands justification beyond the
minimal link of territoriality.57 Various levels of attribution have been offered.
Even before the alleged 9/11 milestone, a handful of States (mainly the us and
Israel) staked claims to self-defence against States that in their assessments
harboured the terrorists responsible for armed attacks against them.58 In its
Definition of Aggression, however, the General Assembly (ga) adopted a much
higher standard and considered the sending by or on behalf of a State of armed
bands, irregulars or mercenaries, which carry out acts of armed force against
another State [] as acts of aggression.59 The icj recognized this test as one
of customary international law and applied it as the threshold for armed attack under Art. 51 un Charter.60 Following considerable debate about competing standards of overall and effective control by the State concerned,61 the
S/2006/515. See also O. Corten, Self-Defence against Terrorists: What Can Be Learned from
Recent Practice (20052010)? (2010) 109 Kousaiho Gaiko Zassi (J. Intl L. and Diplomacy)
129, 133.
56 M. Hmoud, Are New Principles Really Needed? The Potential of the Established Distinction between Responsibility for Attacks by Non-State Actors and the Law of Self-Defense
(2013) 107 ajil 576, 577.
57 A. Noellkamper, Attribution of Forcible Acts to States: Connections between the Law on
the Use of Force and the Law of State Responsibility in N.M. Blokker and N. Schrijver
(eds), The Security Council and the Use of Force: Theory and Reality, A Need for Change?
(Nijhoff 2005) 133, 138.
58 As Andr Nollkaemper notes, the harbouring standard is not one recognized in the
laws of self-defence or State responsibility, and State practice is not conclusive; see
A. Noellkamper, Attribution of Forcible Acts to States: Connections between the Law on
the Use of Force and the Law of State Responsibility 133, 1367. For a more detailed a nalysis
of pre-9/11 State practice, see C. Gray, International Law and the Use of Force 195198.
59 Art. 3 (g) unga Res 3314 (xxix) Definition of Aggression (14 December 1974) gaor 29th
Session Supp 31 vol. 1, 142; this threshold was applied by the icj in Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] icj Rep 168,
para. 1467.
60 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
61 The icj in Nicaragua adopted the effective control test of attribution, stating: it would
in principle have to be proved that the State had effective control of the military or, paramilitary operations in the course of which the alleged violations were committed; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (Merits) [1986] icj Rep 14, para. 115. The Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia (icty) famously rejected this threshold,
77
atter was presumably settled in Genocide (Bosnia and Herzegovina v Serbia

m
and Montenegro), with the icj confirming the latter, higher standard as the appropriate test.62 This limited self-defence claims to armed attacks by one State
against another State.63 Consequently, as Christian Tams notes, only terrorist
attacks effectively controlled by another State triggered a right of self-defence,
creating a standard that restricted self-defence to the inter-State context.64
In the absence of effective control by the territorial State, thus, permissible
responses to armed attacks by terrorist organizations remain extremely controversial.65 This is especially true in the present context in which the Syrian
Government on the one hand, and the isil and its affiliates on the other, are
mutually hostile, discrediting claims of any complicity between them.66 To
address this limitation, some commentators support the need to identify a
lower threshold of attribution that would impose suitably high levels of responsibility on States in the global fight against terrorism, while at the same
time maintaining a degree of predictability in the jus ad bellum.67
The standard of attribution asserted most often recognizes a right of self-
defence against States that are unwilling or unable to undertake adequate measures against terrorists operating within their territories,68 justifying the exercise of a right of self-defence out of necessity.69 President Obama has h
inted
62
63
64
65
66
67
68
69
f ormulating the test of overall control in Prosecutor v. Tadi ( Judgment) IT-94-1-A (15 July
1999), para. 120.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) (26 February 2007) icj Doc
2007 General List No 91, para. 406. See also O. Corten, Self-Defence against Terrorists:
What Can Be Learned from Recent Practice (20052010)? 129, 1489.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] icj Rep. 136, para. 139.
C.J. Tams, The Use of Force against Terrorists (2009) 20 ejil 359, 3689.
J.J. Paust, Use of Armed Force against Terrorists in Afghanistan, Iraq and beyond (2001
2002) 35 Cornell ilj 533, 540; see also D. Tladi, The Nonconsenting Innocent State: The
Problem with Bethlehems Principle 12 (2013) 107 ajil 570, 5736.
C. Henderson, Editorial Comment: The Use of Force and the Islamic State (2014) 1 jufil
209, 215.
C.J. Tams, The Use of Force against Terrorists 359, 3856.
See e.g. Bethlehems Principles 1, 11 and 12; D. Bethlehem, Principles Relevant to the
Scope of a States Right of Self-Defence against an Imminent or Actual Armed Attack by
Non-State Actors (2012) 106 ajil 1, 67; see also W.G. Sharp, Sr., The Use of Armed Force
against Terrorism: American Hegemony or Impotence? (2000) 1 cjil 37, 44.
C. Greenwood, Self-Defence in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law (oup 2008), available at www.mpepil.com (accessed 21 December 2015),
para. 18.
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at this justification in the context of Syria, stating: I dont see any scenario in
which Assad is able to bring peace and stability.70 Permanent Representative
of the us to the un Samantha Power, in a letter to the un sg, also succinctly
outlined the well-known us position in favour of this doctrine in the current
Syrian context:
States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in Art. 51
un Charter, when, as is the case here, the government of the State where
the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will
not confront these safe havens effectively itself. Accordingly, the United
States has initiated necessary and proportionate military actions in Syria
in order to eliminate the ongoing isil threat to Iraq.71
The use of force in Syria presents a challenging test case for the application
of this unwilling or unable standard, even though it is reasonably clear that
President Assads Government is in fact unable to prevent armed attacks by
the isil against Iraq from within its territory.72 To begin with, there is considerable disagreement among States and commentators as to how this assessment
is to be conducted. Olivier Corten suggests that States may be held directly
responsible for substantial involvement73 in the perpetration of armed attacks by terrorist groups, but warns that there has been no State practice in
support of this proposition.74 Others rely on the ineffectiveness of proposed
70
71
72
73
74
C. Lynch, Obama Hints at Legal Rationale for Airstrikes in Syria (28 August 2014) Foreign
Policy, available at http://foreignpolicy.com/2014/08/28/obama-hints-at-legal-rationale
-for-airstrikes-in-syria/ (accessed 21 December 2015).
unsc Letter dated 23 September 2014 from the Permanent Representative of the
United States of America to the United Nations addressed to the Secretary-General
(23 September 2014) un Doc. S/2014/695. See also J. Bellinger, Armed Conflict with Al
Qaida? (15January 2007) Opinio Juris available at http://opiniojuris.org/2007/01/15/armed
-conflict-with-al-qaida/ (accessed 21 December 2015).
21 December 2015).
Substantial involvement has been included in Art. 3 (g) unga Res 3314 (xxix) Definition
of Aggression (14 December 1974) gaor 29th Session Supp 31 vol. 1, 142, but States have
not yet relied upon it as a justification for the use of force.
O. Corten, Self-Defence against Terrorists: What Can Be Learned from Recent Practice
(20052010)? 129, 152.
79
cooperation with President Assads Government as a justification for the use

of force:
[I]f a threatened State has reasons why it does not wish to deal with the
host State, which have nothing to do with the effectiveness of the forcible
actions in self-defence, justification outside the bounds of self-defence
(including the unable or unwilling framework) needs to be sought.75
In a similar vein, some claim that the unwilling or unable test is really a
determination of the territorial States capacity to control its own territory,76
which, at present, Syria does not. While it may be possible to argue, as un sg
Ban Ki-Moon does, that the strikes took place in areas no longer under the
effective control of that Government,77 the Syrian Governments willingness
to cooperate78 seems to have been conveniently left out of his assessment.
Since airstrikes began in Syria on 23 September 2014, the anti-isil coalition
led by the us has actively avoided seeking the cooperation of President Assads
Government, most likely to prevent the conferral of legitimacy upon it in the
context of an ongoing internal conflict.79 Those who assume that President
Assad is willing may nevertheless argue that since the Syrian Government is
unable to control parts of its territory, the use of force by third States is justified
in these areas to the extent necessary to secure [Iraqs] borders.80
Does the coalitions refusal to coordinate its use of force with the government of a State that is unable but willing to assist efforts against a terrorist
organization operating within its territory invalidate the justification of selfdefence? At present, it is unclear whether international law requires that the
coalition justify its decision not to coordinate the use of force with President
75
76
C. Henderson, Editorial Comment: The Use of Force and the Islamic State 209, 217.
M. Lewis, What Does the Unwilling or Unable Standard Mean in the Context of Syria?
(12 September 2014) Just Security, available at http://justsecurity.org/14903/unwilling
-unable-standard-context-syria/ (accessed 21 December 2015).
77 Available at http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?
statID=2356#.VYhucFrfCxI (accessed 21 December 2015).
78 M. Karouny and L. Bassam, Syria Says us Told It of Attack on Islamists Hours before
Raids (23 September 2014) Reuters, available at http://uk.reuters.com/Article/2014/09/23/
uk-syria-crisis-kerry-idUKKCN0HI0QP20140923 (accessed 21 December 2015).
79 C. Henderson, Editorial Comment: The Use of Force and the Islamic State 209, 213.
80 un Secretary-General Ban Ki-Moon has also alluded to this justification; see also
21 December 2015).
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Urs
Assad.81 It is doubtful whether the consent of a territorial State that has offered
a genuine, reasonably available effective means of cooperation can be overridden.82 The sovereignty of the Syrian State, which continues to fight the isil
independently, is certainly infringed.83
Perhaps the only conclusion that can be reached with any certainty, then, is
Ashley Deeks observation that [a] test constructed at this level of generality
offers insufficient guidance to States.84 Decisively, State practice in support
of a lower standard of attribution or new forms of State responsibility is
scarce, limiting the value of these approaches in justifying the use of force in
Syria today.85 The law on the use of force against terrorists in the absence of
State complicity is ina state of flux, and States official positions since the beginning of the conflict do not support the emergence of a new standard in
customary international law.86
81
82
83
84
85
86
C. Kre, The Fine Line Between Collective Self-Defence and Intervention by Invitation:
Reflections on the Use of Force against is in Syria (17 February 2015) Just Security,
available at https://www.justsecurity.org/20118/claus-kreb-force-isil-syria/ (accessed 9
October 2015).
R. Goodman, International Law and the Unable or Unwilling Test for us Military
Operations in Syria (12 September 2014) Just Security, available at http://justsecurity
.org/14949/international-law-unwilling-unable-test-military-operations-syria/ (accessed
21 December 2015).
J. Horowitz, Does the Unwilling/Unable Test Hang on Territorial Control?: A R
esponse
to Michael Lewis (12 September 2014) Just Security, available at http://justsecurity
.org/14953/unwillingunable-test-hang-territorial-control-response-michael-lewis/
A.S. Deeks, Unwilling or Unable: Toward a Normative Framework for Extraterritorial
Self-Defence (2012) 52 vjil 483, 488.
See, e.g., the view taken by 120 Member States of the Non-Aligned Movement (nam) in
the 16th Summit of Heads of State or Government Final Document (2012), para. 28.2:
consistent with the practice of the un and international law, as pronounced by the icj,
Article 51 of the un Charter is restrictive and should not be re-written or re-interpreted.
For arguments that international law on this point is in a State of flux, see C. Gray, International Law and the Use of Force 193253; C.J. Tams, The Use of Force against Terrorists
359, 378382. See also J. Daskal, A. Deeks and R. Goodman, Strikes in Syria: The International Law Framework (24 September 2014) Just Security, available at http://justsecurity
.org/15479/strikes-syria-international-law-framework-daskal-deeks-goodman/ (accessed
21 December 2015); R. Goodman, International Law on Airstrikes against isis in Syria
(28 August 2014) Just Security, available at http://justsecurity.org/14414/international-law
-airstrikes-isis-syria/ (accessed 21 December 2015); T. Reinold, State Weakness, Irregular
Warfare and the Right to Self-Defense Post-9/11 (2011) 105 ajil 244.
iii
81
The Relationship between Self-Defence and Enforcement Action
Within the un framework of collective security, there are only two exceptions
to the overriding prohibition on the use of force in Art. 2 (4) un Charter: 1. a
limited right to use force in self-defence in accordance with Art. 51 un Charter,
and 2. an authorization of the use of force by the sc under Art. 42 un Charter. The justifications offered by States for the use of force in Syria reveal a
clear preference for the former. This is at least partly a result of the fact that
the exercise of self-defence remains the prerogative of individual States, but
its inclusion in the Charter as an exception to Art. 2 (4) un Charter brings it
within the fold of a larger system of collective security.
As a result, it is necessary to clarify the relationship between the use of force
in self-defence under Art. 51 un Charter, and enforcement action authorized
by the sc under Art. 42 un Charter. Conceptually, the same conduct may be
qualified as both an armed attack under Art. 51 un Charter and as a threat to
international peace and security for the purposes of Chapter vii of the un
Charter,87 raising questions about the appropriate role for the sc in regulating
the use of force in these circumstances.
In one view, a clear line limits the availability of the self-defence justification of the use of force: once the sc has determined the existence of a threat
to the peace, breach of the peace, or act of aggression under Art. 39 un Charter, the operation of Art. 51 un Charter comes to an end.88 This assumes mutual exclusivity between the two exceptions to the prohibition on the use of
force, and is derived from the stipulation in Art. 51 un Charter that self-defence
may only be exercised until the sc has taken the measures necessary for the
maintenance of international peace and security. From this perspective, the
Councils occasional endorsements of self-defence claims under Art. 51 un
Charter are without legal effect.89
Since June 2014, and at the time of writing, the sc has passed four relevant
Resolutions under Chapter vii of the un Charter: sc Resolutions 2161, 2170,
2178 (2014) and 2199 (2015), each emphasizing that terrorism constitutes one of
87
88
89
For a discussion on the relationship between self-defence and collective security, see
C. Stahn, Collective Security and Self-Defence after the September 11 Attacks (2002
2003) 10 tflr 10, 1011.
E. de Wet and M. Wood, Collective Security in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law (oup 2008), available at www.mpepil.com (accessed
21 December 2015), para. 14; M. Wood, Self-Defence and Collective Security: Key Distinctions 649, 655.
M. Wood, Self-Defence and Collective Security: Key Distinctions 649, 654.
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the most serious threats to international peace and security. sc Resolutions

2161, 2170 (2014) and 2199 (2015) also affirm the Councils primacy in this context, underlining in identical terms:
[T]he need to combat by all means, in accordance with the Charter of
the United Nations and international law [] threats to international
peace and security caused by terrorist acts, stressing in this regard the
important role the United Nations plays in leading and coordinating this
effort [].90
The use of force in Syria is ongoing despite these determinations (presumably
made under Art. 39 un Charter), and in the absence of sc authorization of
enforcement action. This supports a second interpretation that favours more
substantial sc engagement during the exercise of self-defence.
That the sc enjoys primary responsibility for the maintenance of international peace and security is evident in the text of the Charter, which lays out
a coherent mechanism for enforcement action in Chapter vii.91 Under Art. 39
un Charter, the sc may make recommendations, or decide what measures
shall be taken. Andr Nollkaemper argues that on this basis, the sc may assess
as part of its mandate for the maintenance of international peace and security, whether States claims to self-defence against armed attacks by non-State
actors are permissible in international law.92 This would certainly provide
much needed clarity on when the conditions for the exercise of self-defence
particularly the threshold for attribution are met, allowing the Council to
determine, where necessary, that particular acts of non-State actors are insufficiently related to a State to justify self-defence against that State.93
Greater sc involvement in endorsing the use of force under Art. 51 un
Charter in response to armed attacks by non-State actors would offer a means
90
91
92
93
unsc Res 2161 (2014) Threats to International Peace and Security Caused by Terrorist
Acts (17 June 2014) S/RES/2161 (2014) preambular para. 5; unsc Res 2170 (2014) Threats
to International Peace and Security Caused by Terrorist Acts (15 August 2014) S/RES/2170
(2014) preambular para. 17; unsc Res 2199 (2015) Threats to International Peace and
Security Caused by Terrorist Acts (12 February 2015) S/RES/2199 (2015) preambular
para.3.
Art. 24, 39 and 51 un Charter.
the Use of Force and the Law of State Responsibility 133, 137.
the Use of Force and the Law of State 133, 1378, 1656.
83
of legitimation by the international community that is absent in the existing

Charter framework.94 In the aftermath of the 9/11 attacks, for example, the
Council went out of its way to acknowledge the us right to individual and collective self-defence.95 However, the Council has not consistently adopted this
practice, and the significance of these limited preambular acknowledgements
remains disputed.96
Definitively, State practice reveals that States do not consider sc acknowledgement of the right to self-defence in response to an armed attack by a nonState actor as a necessary precondition for its exercise.97 In the present context,
the Council has nowhere acknowledged the collective self-defence justification offered by the anti-isil coalition; the text of sc Resolution 2170 mentions
neither self-defence nor armed attack. Justifying the use of force in Iraq and
Syria also requires a distinction between the territories of these States one
that remains absent in relevant sc Resolutions. While sc Resolution 2170 expresses concern for stability in Iraq, Syria and the region, sc Resolution 2178
applies to terrorist acts in general.
It would thus appear that although the sc has been conferred overriding authority in the Charter framework,98 the preference for self-defence,
expressed most famously by the us to justify its use of force in Afghanistan in
2001,99 continues even today. Having taken the lead in ongoing operations in
Iraq and Syria, the us has made no attempt to channel its use of force through
the sc, despite some speculation that Russia may have accepted a limited sc
mandate for the use of force.100 Some have gone so far as to suggest that the
94
F.L. Kirgis, The Security Councils First Fifty Years (1995) 89 AmJIntlL. 506, 521; M. Wood,
Self-Defence and Collective Security: Key Distinctions 649, 656.
95 unsc Res 1368 (2001) Threats to International Peace and Security Caused by Terrorist
Acts (12 September 2001) scor [1 January 200131 July 2002] 290 and unsc Res 1373 (2001)
Threats to International Peace and Security Caused by Terrorist Acts (28 September
2001) [1 January 200131 July 2002] 291 both recognized the inherent right of individual or
collective self-defence in accordance with the Charter in their Preambles.
96 See generally E. Papastavridis, Security Council Resolutions 1368/2001 and 1373/2001:
Collective Security or the Right of Self-Defence? (2002) 55 rhdi 501.
97 C. Gray, International Law and the Use of Force 2089.
98 Art. 25, 51 and Chapter vii; see M. Wood, Self-Defence and Collective Security: Key
Distinctions 649, 655.
99 C. Gray, A Crisis of Legitimacy for the un Collective Security System? 157, 169; J. Miller,
Comments on the Use of Force in Afghanistan (20012) 35 Cornell ilj 605, 6056.
100 J. Keating, Would the un Ever Have Authorized Airstrikes against isis? (17 October 2014)
Slate, available at http://www.slate.com/blogs/the_world_/2014/10/17/new_
members
_elected_to_the_u_n_security_council_the_body_has_looked_pretty.html (accessed 21
December 2015).
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e xisting system of collective security is gradually being replaced by fragmented collective self-defense actions and alliances founded on Article 51.101
iv
Should the sc Maintain its Pivotal Role in the Use of Force?
1
Advantages of Enforcement Action under Chapter vii
The limited role that the sc has played during the ongoing conflict inevitably raises questions about the effectiveness of the existing system of collective
security. Even so, the arguments in favour of retaining a sc-centric system to
regulate the use of international force in the Middle East, and elsewhere, are
many.
Terrorist threats of today transcend State boundaries, rendering individual
governments incapable of addressing them unilaterally.102 The isil threat has
already spilled beyond the borders of Iraq and Syria, and requires a collective,
comprehensive response. The Report of the Secretary-Generals High Level
Panel on Threats, Challenges and Change in 2004 went so far as to suggest that
the sc is the international communitys collective security voice, confident
that it is fully empowered under Chapter vii [] to address the full range of
security threats with which States are concerned.103 Indeed, as Christine Gray
warns, it cannot be assumed that every State will always be willing or able to
meet its responsibility to protect its own people and not harm its neighbours,
justifying the call for collective counter-terrorist operations.104
The evolving nature of the terrorist threat to international peace and security also supports the argument in favour of sc primacy in the use of force:
unlike States resorting to Art. 51 un Charter, the sc does not need to wait for
a terrorist threat to materialize in order to take preventive action against it.105
Chapter vii of the un Charter enables the sc to impose obligations upon
States in situations that warrant urgent action, which is especially useful in
the context of terrorism.106 In sc Resolution 1373, for example, the Council
effectively imposed many provisions of the International Convention for the
101 O. Schachter, The Right of States to Use Armed Force (1984) 82 Michigan Law Review
1620, 1639.
102 C. Gray, A Crisis of Legitimacy for the un Collective Security System? 157, 158.
103 unsg A More Secure World: Our Shared Responsibility: Report of the High-Level Panel
on Threats, Challenges and Change in unga Note by the Secretary-General (2 December
2004) un Doc. A/59/565 8, para. 194, 198.
105 S. Talmon, The Security Council as World Legislature (2005) 99 AmJIntlL 175, 192.
106 S. Talmon, The Security Council as World Legislature 175, 184, 186.
85
Suppression of the Financing of Terrorism 1999 on States in the aftermath of

the 9/11 terrorist attacks.107 The use of Chapter vii of the un Charter as an
alternative to more time-consuming treaty-making processes to impose multilateral obligations upon States in the context of foreign terrorist fighters is thus
justified by the need for expedient collective action.
sc authorization of the use of force under Art. 42 un Charter also avoids the
sticky issue of attribution of responsibility that inevitably arises in attempts to
extend the scope of self-defence under Art. 51 un Charter to armed attacks by
non-State actors.108 As discussed in Part ii.3, as long as States disagree upon
the scope of self-defence, uncertainty in the jus ad bellum is likely to persist.
Requiring the sc to shoulder greater responsibility under Chapter vii of the
un Charter offers much needed consistency in the use of force against terrorist attacks, and avoids expanding the scope of Art. 51 un Charter so far that
it threatens the prohibition on the use of force itself. As Andr Nollkaemper
succinctly states:
[T]he Council could authorize force under Art. 42 against States that harbour or support terrorists or other private persons engaged in forcible
acts against other States. If and to the extent that Art. 51 in a particular case does not provide a basis for the use of force against such States,
this will in fact be the only option for addressing the problems by using
force.109
The limitations in the effectiveness of the existing system of collective security
cannot be ignored, but some suggest that they are context-specific, and are likely to persist irrespective of sc reform.110 In this view, the continued r elevance
of the Council is not threatened by political and practical challenges to the implementation of its mandate in individual circumstances.111 Some go so far as
to suggest that the P5 display more loyalty to the Council as an institution and
107 T. Weigend, The Universal Terrorist: The International Community Grappling with a
Definition (2006) 4 jicj 912, 920; P.C. Szaz, The Security Council StArt. Legislating (2002)
96 AmJIntlL 901, 903.
108 C.J. Tams, The Use of Force against Terrorists (2009) 20 ejil 359, 376.
109 A. Noellkamper, Attribution of Forcible Acts to States: Connections between the Law on
the Use of Force and the Law of State Responsibility 133, 168.
110 H. Freudenschu, Between Unilateralism and Collective Security: Authorizations of the
Use of Force by the un Security Council (1994) 5 ejil 492, 530.
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a stronger wish to protect its effectiveness.112 These views are not uncontested,
and arguments that challenge the role of the sc will be discussed presently.
2
Disadvantages of Enforcement Action under Chapter vii
At the time of writing, the sc has neither authorized the use of forcible measures under Art. 42 un Charter113 nor expressed an intention to do so, despite
remaining seized of the matter since June 2014.114 The conveniently vague authorization of all necessary means also remains unused.115 It is not formally
required that the sc, having made a determination under Art. 39 un Charter,
resort to forcible measures under Art. 42 un Charter.116 Yet, the Councils silence on the use of force by members of a coalition of approximately sixty-two
States117 merits deeper discussion of its relevance in the existing system of collective security.
With the coming into force of the un Charter in 1945, it was intended that all
uses of force would be channelled through its provisions,118 and States would
no longer resort to self-help as a justification for the use of forcible measures in
this new international legal order.119 In the face of mass atrocities, however, the
112 M. Wood, Security Council Working Methods and Procedure: Recent Developments
(1996) 45 iclq 150, 153.
113 A. Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review
143, 162.
Acts (15 August 2014) S/RES/2170 (2014), para. 24; unsc Res 2178 (2014) Threats to International Peace and Security Caused by Terrorist Acts (24 September 2014) S/RES/2178
(2014), para. 27.
115 F.L. Kirgis, The Security Councils First Fifty Years 506, 5212; H. Freudenschu, Between
Unilateralism and Collective Security: Authorizations of the Use of Force by the un
Security Council 492, 523.
116 M. Wood, United Nations, Security Council in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law (oup 2008), available at www.mpepil.com (accessed 21
December 2015), para. 23.
117 J. Drennan, Who Has Contributed What in the Coalition against the Islamic State?
(12November 2014) Foreign Policy, available at http://foreignpolicy.com/2014/11/12/who
-has-contributed-what-in-the-coalition-against-the-islamic-state/ (accessed 21 December
2015).
118 R. Wolfrum, The Attacks of September 11, 2001, the Wars against the Taliban and Iraq: Is
There a Need to Reconsider International Law on the Recourse to Force and the Rules
in Armed Conflict? in A. von Bogdandy and R. Wolfrum (eds), Max Planck Yearbook of
United Nations Law vol. 7 (Brill 2003) 1, 11.
119 J. dAspremont, The Collective Security System and the Enforcement of International
Law in M. Weller (ed), The Oxford Handbook of the Use of Force (oup 2015) 129, 138140.
87
Councils inability to exercise its responsibility for the maintenance of peace

and security suggests a failure to protect on its part.120 The perceived liberalization in the use of force that has resulted undermines not only collective
security, but also the overarching prohibition on the use of force itself.121 On
this basis, commentators like Thomas Franck have expressed remorse at the inability of collective security to balance the far-reaching prohibition in Art. 2 (4)
un Charter.122
In this context, it is important to identify the reasons for the Councils inability to authorize the use of force in Syria in spite of agreement that the isil
constitute a threat to international peace and security. At the time of writing,
Russia continues to insist on sc authorization, while China emphasizes the
need to respect Syrias sovereignty.123 France and the uk have also been careful
to limit their participation to Iraqi territory.124 Decisively, Resolutions of the
sc under Chapter vii of the un Charter are essentially agreements between
States being members of the Council,125 and cannot authorize the use of force
in the absence of consensus. As a result, as long as the us and Russia remain
divided on whether to coordinate military operations with President Assads
Government, the authorization of the use of force in Syria remains a remote
possibility.126
120 See generally A. Nollkaemper, Failures to Protect in International Law in M. Weller (ed),
The Oxford Handbook of the Use of Force (oup 2015) 437.
121 J. dAspremont, The Collective Security System and the Enforcement of International
Law 129, 154; C.J. Tams, The Use of Force against Terrorists 359, 378.
122 T.M. Franck, When, If Ever, May States Deploy Military Force Without Prior Security
Council Authorization? (2000) 4 Sing jls 362, 362.
123 isis Air Strikes: Obamas Plan Condemned by Syria, Russia and China (12 September
2014) The Guardian, available at http://www.theguardian.com/world/2014/sep/11/assad
-moscow-tehran-condemn-obama-isis-air-strike-plan (accessed 21 December 2015).
124 A summary of the official uk position is available here: https://www.gov.uk/government/
publications/military-action-in-iraq-against-isil-government-legal-position/summary
-of-the-government-legal-position-on-military-action-in-iraq-against-isil (accessed
21 December 2015); see also A. Fantz and M. Pearson, Whos Doing What in the
Coalition Battle against isis (28 February 2015) cnn, available at http://edition.cnn
.com/2014/10/06/world/meast/isis-coalition-nations/ (accessed 21 December 2015).
143, 156.
126 H. Meyer, Russia Urges us to Enlist Syrias Assad to Fight Islamic State (29 May 2015) Bloomberg, available at http://www.bloomberg.com/news/Articles/20150529/russia-urges-u-s
-to-enlist-syria-s-assad-to-fight-islamic-state (accessed 21 December 2015); K.Demirjian,
Russia Condemns us Airstrikes against Islamic State in Syria (23 September 2014)
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The limited representation in the sc, and imbalanced voting rights among
its Members, are more than evident.127 As James Crawford and Rowan Nicholson observe: If the institutionalized inequality of the collective security
system does generate a problem of effectiveness, it is that its effectiveness is
asymmetric.128 Ultimately:
The Council, however powerful and however broad its competences,
works on the basis of consensual delegation, and on the assumption that
the required degree of confidence and trust exist between the members
as to how the resolutions will be adopted and implemented.129
Suggestions to expand the permanent composition of the Council, or do
away with the veto in certain circumstances, continue to fall on deaf ears.
The ambitious responsibility not to veto, proposed by French Foreign Minister Laurent Fabius (derived from the still emerging responsibility to protect),
remains highly contentious.130 The sc thus remains a political organ of limited
competence.131
Unsurprisingly, the inherent bias within the Council reveals itself in the ambiguous texts of sc Resolutions, resulting in a lack of predictability in their
interpretation and application.132 Increasingly, often through arrangements
similar to the anti-isil coalition, the sc has conferred upon contributing
States varying degrees of control over military operations carried out with its
127
128
129
130
131
132
The Washington Post, available at http://www.washingtonpost.com/world/

russia
-condemns-us-airstrikes-against-islamic-state-in-syria/2014/09/23/de639dc642f411e4
-b4371a7368204804_story.html?hpid=z1 (accessed 21 December 2015).
M. Wood, Security Council Working Methods and Procedure: Recent Developments
150,161.
J. Crawford and R. Nicholson, The Continued Relevance of Established Rules and Institutions Relating to the Use of Force in M. Weller (ed), The Oxford Handbook of the Use of
Force (oup 2015) 96, 108.
A. Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review
143, 194.
S.M. Patrick, Limiting the Security Council Veto in the Face of Mass Atrocities (23 January
2015), available at http://blogs.cfr.org/patrick/2015/01/23/limiting-the-security-counci
l-veto-in-the-face-of-mass-atrocities/ (accessed 21 December 2015).
M. Wood, The Interpretation of Security Council Resolutions in J.A. Frowein and
R.Wolfrum (eds), Max Planck Yearbook of United Nations Law vol. 2 (Kluwer Law International 1998) 73, 77.
A. Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review
143, 156, 163.
89
authority.133 In this way, the sc has permitted the extraterritorial use of force
against terrorist activity by States that are able and willing to contribute.134
The dual roles played by the P5 in both defining and executing these mandates
raise important concerns of legitimacy.135
v
A Multilateral Approach to Counter-Terrorism
1
Law-Making Resolutions under Chapter vii
The focus of this contribution so far has been on the legality of forcible measures taken to combat the isil in Iraq and Syria, and the role of the sc in this
context. This Part moves away from this discussion, questioning altogether
the suitability and effectiveness of forcible measures to counter terrorism,136
particularly in self-defence.137 The sc has itself acknowledged these limitations
in sc Resolution 2178, recognising that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone.138
Alongside the use of force in Iraq and Syria, the response to the ongoing
threat in the Middle East also reveals a discernible increase in the volume of
international rules designed to combat terrorism through non-forcible measures imposed on States in their conduct and cooperation.139 These rules impose binding obligations on States in one of two ways: (1) through their ratification of international conventions that address specific terrorist activities,140 or
133 H. Freudenschu, Between Unilateralism and Collective Security: Authorizations of the
Use of Force by the un Security Council 492, 522, 5267.
134 C.J. Tams, The Use of Force against Terrorists 359, 377.
135 R. Wolfrum, The Attack of September 11, 2001, the Wars against the Taliban and Iraq: Is
There a Need to Reconsider International Law on the Recourse to Force and the Rules in
Armed Conflict? 1, 14.
136 N. Schrijver and L. van den Herik, Leiden Policy Recommendations on Counter-Terrorism
and International Law (2010) 54 nilr 571, para. 9; J. Miller, Comments on the Use of Force
in Afghanistan 605, 608; E. Wilmshurst and M. Wood, Self-Defence against Non-State
Actors: Reflections on the Bethlehem Principles 390, 393.
137 This is especially so when making claims to pre-emptive self-defence; see G. Distefano,
Use of Force in M. Weller (ed), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 545, 55456; C. Gray, International Law and the Use of Force (oup 2008)
203, 20916.
Acts (24 September 2014) S/RES/2178 (2014) preambular para. 14.
139 C.J. Tams, The Use of Force against Terrorists 359, 392, 394.
140 A list of existing terrorism-related conventions is available at https://treaties.un.org/
Pages/DB.aspx?path=DB/studies/page2_en.xml (accessed 21 December 2015).
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(2)in compliance with sc Resolutions under Chapter vii of the un Charter.141

While the legal basis for treaty obligations is clear, obligations arising under sc
Resolutions require some explanation.
Since the 1990s, there has been an expansion in the Councils interpretation
of threat to the peace under Art. 39 un Charter to include not only the use of
armed force, but also situations that may lead to the use of armed force.142 In
its evaluation of the conflict in Iraq and Syria, the Council described terrorism as one of the most serious threats to international peace and security,143
and terrorism is now widely recognized as a continuing threat to international
peace and security.144
This characterization served as the basis for the adoption of a series of
long-term, non-forcible measures under Art. 41 un Charter that are intended to address terrorism in all forms and manifestations,145 in stark contrast
with more context-specific Resolutions of the past.146 sc Resolution 1373,
widely recognized as the starting point of this practice, imposed a variety
of obligations upon States that continue to have binding effect today. These
141 Art. 25 un Charter.

142 S. Talmon, The Security Council as World Legislature 175, 180.
Acts (27 January 2014) S/RES/2133 preambular para. 1; unsc Res 2161 (2014) Threats
to International Peace and Security Caused by Terrorist Acts (17 June 2014) S/RES/2161
(2014) preambular para. 2; unsc Res 2170 (2014) Threats to International Peace and Security Caused by Terrorist Acts 15 August 2014 S/RES/2170 (2014) at preambular para. 3;
Acts (24 September 2014) S/RES/2178 (2014) preambular para. 1; unsc Res 2199 (2015)
Threats to International Peace and Security Caused by Terrorist Acts (12 February 2015)
S/RES/2199 (2015) preambular para. 2.
144 The sc emphasized in its Presidential Statement that the threat of terrorism is expanding
and intensifying S/PRST/2014/23; see also P.C. Szaz, The Security Council StArt. Legislating (2002) 96 AmJIntlL 901, 904.
145 In the present context, see unsc Res 2161 (2014) Threats to International Peace and
Security Caused by Terrorist Acts (17 June 2014) S/RES/2161 (2014); unsc Res 2170 (2014)
Threats to International Peace and Security Caused by Terrorist Acts 15 August 2014
S/RES/2170 (2014); unsc Res 2178 (2014) Threats to International Peace and Security
Caused by Terrorist Acts (24 September 2014) S/RES/2178 (2014); unsc Res 2199 (2015)
Threats to International Peace and Security Caused by Terrorist Acts (12 February 2015)
S/RES/2199 (2015); unsc Res 2213 (2015) Libya (27 March 2015) S/RES/2213 (2015).
146 S. Talmon, The Security Council as World Legislature 177; P.C. Szaz, The Security Council
StArt. Legislating 901, 902.
91
include the prevention and suppression of the financing of terrorist acts,147

the freezing offunds and assets of individuals involved in the commission of
these acts,148 and the criminalization of terrorist acts in domestic legislation,
among others.149
With sc Resolution 2161 reaffirming that all States shall implement anti-
terrorist measures previously adopted by the Council, obligations under
sc Resolution 1373 apply equally in the context of Iraq and Syria today.150
sc Resolution 2170 also specifically confirms the perpetual applicability of sc
Resolutions 1373 and 2161.151 In order to respond to the changing nature of terrorism, new obligations have also been imposed, particularly in response to
the surge in the flow of foreign terrorist fighters across international borders.
The nature of these continuing obligations is comparable to those undertaken by States in international treaties. A combined reading of Art. 41 and Art.
42 un Charter, read with Art. 25 and Art. 48 un Charter, makes it clear that the
sc has been conferred sufficient discretion in the obligations it may impose
on States under Chapter vii of the un Charter. States, by virtue of their membership to the un, consent to obligations that arise out of Charter provisions,
and agree to accept and carry out sc decisions. Evidently, the Council has not
restricted itself to the measures listed under Art. 41 un Charter, and the measures it adopts are both specific and general.
There are, however, limits on the exercise of the Councils discretion under
Chapter vii of the un Charter that may be inferred from the Charter.152 As
Stefan Talmon notes, the sc is a single-issue legislator, required to maintain
under all circumstances a perceptible nexus between the obligations imposed
and the maintenance of international peace and security.153 Moreover, the
obligation on Member States to carry out decisions of the sc is qualified by
the text of Art. 25 un Charter, which requires that States implementation of
Acts (28 September 2001) (1 January 200131 July 2002) 291, para. 1 (a).
Acts (28 September 2001) (1 January 200131 July 2002) 291, para. 1 (c).
Acts (28 September 2001) (1 January 200131 July 2002) 291, para. 2 (e).
Acts (17 June 2014) S/RES/2161 (2014), para. 1.
Acts 15 August 2014 S/RES/2170 (2014), para. 5.
143, 1467.
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these decisions must be in accordance with the present Charter,154 and the
Council is expected to act in accordance with the purposes and principles of
the un.155 The legal basis for the implementation of these law-making Resolutions is largely unproblematic.
States implementation of the scs law-making Resolutions neveertheless
raises important questions of effectiveness. Ultimately, sc Resolutions are arrived at through political compromise156 and are not nearly as elaborate as
treaties, making inconsistencies in their implementation by the legislatures of
diverse legal systems inevitable.157 The point is illustrated well in the context of
sc Resolution 2178, the Foreign Terrorist Fighter Resolution.
2
The Foreign Terrorist Fighter Resolution
sc Resolution 2178, often referred to as the Foreign Terrorist Fighter
Resolution, has been particularly contentious. While continuing its existing
anti-terrorism strategy developed through previous Resolutions, in sc Resolution 2178 the Council acknowledged that foreign terrorist fighters constitute a
more specific threat to international peace and security,158 and must be separately addressed. Some suggest that sc Resolution 2178 will not only serve as
a tool to encourage countries that lack the capabilities or political will to take
aggressive action against foreign terrorist fighters but also facilitate the sustained provision of resources and technical expertise from countries that have
it to those that need it.159 In this view, the Councils use of Chapter vii of the
un Charter to check the flow of foreign terrorist fighters seems to have been a
necessary and timely measure.
Increased initiative and cooperation among States is certainly encouraged,
but difficulties in the implementation of sc Resolution 2178 remain. The text
of this Resolution raises a number of concerns, including whether, in directly
154 Art. 24 (2) un Charter.
155 F.L. Kirgis, Jr., The Security Councils First Fifty Years 506, 520; P.C. Szaz, The Security
Council StArt. Legislating 901, 901.
156 During the drafting of unsc Resolution 1373, since many States did not define terrorism
in the same way as the us, the adoption of this Resolution was possible only without such
definition; see S. Telhami, Conflicting Views of Terrorism (20012) 35 Cornell ilj 581, 584.
Acts (24 September 2014) S/RES/2178 (2014) preambular para. 12.
159 Z. Goldman, The Foreign Fighter Resolution: Implementing a Holistic Strategy to Defeat
isil (29 September 2014) Just Security, available at http://justsecurity.org/15721/foreign
-fighter-resolution-implementing-holistic-strategy-defeat-isil/ (accessed 21 December
2015).
93
addressing foreign terrorist fighters, the Council intended to impose binding obligations directly upon them in international law.160 The scs ability to
enforce obligations addressed to terrorist organizations, and, more recently,
foreign terrorist fighters, is doubtful, particularly in light of ongoing debates
about the rights and obligations of non-State actors in international law.161
The Councils use of Chapter vii of the un Charter to oblige States to legislate upon the foreign terrorist fighter phenomenon has also been criticized
on the ground that it goes far beyond comparable obligations imposed by sc
Resolution 1373.162 While sc Resolution 1373 conveniently borrowed many provisions from the International Convention for the Suppression of the Financing of Terrorism (adopted by the ga earlier in 1999), sc Resolution 2178 seems
to lack a comparable basis of legitimacy among States.163 Problems arose even
in the implementation of sc Resolution 1373, which required States to take
very specific measures in response to terrorist acts, but left them to identify
these acts on an individual, subjective basis.164
sc Resolution 2178 is no different, with the Council deciding that all States
shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize in a
manner duly reflecting the seriousness of the offence.165 With its inconsistent
terminology, sc Resolution 2178 once again reveals the Councils inability to
define the terrorism, terrorists and terrorist acts that it intends to address.166
160 See generally, A. Peters, Security Council Resolution 2178 (2014): The Foreign Terrorist
Fighter as an International Legal Person Part i (20 November 2014), available at http://
www.ejiltalk.org/security-council-resolution-21782014-the-foreign-terrorist-fighter-as
-an-international-legal-person-part-i/ (accessed 21 December 2015).
161 See e.g., J. dAspremont, A. Nollkaemper, I. Plakokefalos and C. Ryngaert, Sharing
Responsibility between Non-State Actors and States in International Law: Introduction
(2015) 62 nilr 49.
162 M. Scheinin, A Comment on Security Council Res 2178 (Foreign Terrorist Fighters)
as a Form of Global Governance (6 October 2014) Just Security, available at http://
justsecurity.org/15989/comment-security-council-res-2178-foreign-fighters-form-global
-governance/ (accessed 21 December 2015).
163 P.C. Szaz, The Security Council Starts Legislating 901, 903.
Acts (24 September 2014) S/RES/2178 (2014), para. 6.
166 K. Ambos, Our Terrorists, Your Terrorists? The United Nations Security Council Urges
States to Combat Foreign Terrorist Fighters, But Does Not Define Terrorism (2 O
ctober
2014), available at http://www.ejiltalk.org/our-terrorists-your-terrorists-the-united
-nations-security-council-urges-States-to-combat-foreign-terrorist-fighters-but-does-not
-define-terrorism/ (accessed 21 December 2015); M. Spohr and T.J. Rder, Key Legal and
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The Resolutions ambiguous definition of foreign terrorist fighters which

again refers to undefined terrorist acts reiterates this uncertainty:
[I]ndividuals who travel to a State other than their States of residence or
nationality for the purpose of the perpetration, planning, or preparation
of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.167
As Martin Scheinin observes, the Resolution imposes upon Member States farreaching new legal obligations without any effort to define or limit the categories of persons who may be identified as terrorists by an individual State.168
Michael Wood effectively captures the essence of the problem:
In an ideal world, each resolution would be internally consistent, consistent with earlier Council action on the same matter, and consistent with
Council action on other matters. Each resolution would be concise, and
avoid superfluous or repetitive material. Consistency and conciseness are
elements of clarity, but the latter also requires, more generally, the precise and unambiguous use of language. It is, of course, only possible to
use clear language when the policy is clear.169
Despite repeated attempts by States to collectively define terrorism, the degree
of consensus among them remains negligible.170 As a result, the implementation of the obligations in sc Resolution 2178 by States invites abuse by
oppressive, politically motivated governments,171 and may impact a variety of
167
168
169
170
171
Political Developments at the United Nations in 2014 in F. Lachenmann, T.J. Rder and
R. Wolfrum (eds), Max Planck Yearbook of United Nations Law vol. 18 (Brill Nijhoff 2015)
603, 611.
Acts (24 September 2014) S/RES/2178 (2014) preambular para. 8 (emphasis added).
M. Scheinin, Back to post-9/11 Panic? Security Council Resolution on Foreign TerroristFighters (23 September 2014) Just Security, available at http://justsecurity.org/15407/
post-911-panic-security-council-resolution-foreign-terrorist-fighters-scheinin/ (accessed
21 December 2015).
M. Wood, The Interpretation of Security Council Resolutions 73, 82.
J. Klabbers, International Law (cup 2013) 1989.
M. Scheinin, Back to post-9/11 Panic? Security Council Resolution on Foreign Terrorist
Fighters (23 September 2014) Just Security, available at http://justsecurity.org/15407/post
-911-panic-security-council-resolution-foreign-terrorist-fighters-scheinin/ (accessed 21
December 2015).
95
human rights.172 The inability to define this phenomenon with sufficient clarity may also violate the principle of legality in criminal law in the implementation of sc Resolution 2178.173 Although the conduct that constitutes acts of
terrorism is often already criminalised in domestic legal systems,174 the added
terrorist label is used to justify special investigation procedures, harsher penalties, increased international cooperation,175 and resort to extra-judicial targeted killings,176 demanding greater predictability in its application.
While it may not be necessary to constitute terrorism into a crime in itself,177
and it is uncertain whether it can be defined in a manner that ensures compliance with the principle of legality in all circumstances,178 the sc would be well
advised to adopt a working definition for the limited purpose of implementing sc Resolution 2178.179 This would ensure that the sc is able to express, as
a minimum requirement, a clear counter-terrorism policy that underlines the
172 For a detailed assessment of human rights related aspects of unsc Resolution 2178, see
A. Conte, An Old Question in a New Context: Do States Have to Comply with Human
Rights when Countering the Phenomenon of Foreign Fighters? (18 March 2015), available
at http://www.ejiltalk.org/an-old-question-in-a-new-context-do-States-have-to-comply
-with-human-rights-when-countering-the-phenomenon-of-foreign-fighters/ (accessed
21 December 2015).
Definition 912, 9245.
174 G.P. Fletcher, The Indefinable Concept of Terrorism (2006) 4 jicj 894, 899; M.C.Bassiouni,
Effective National and International Action against Organized Crime and Terrorist
Criminal Activities (1990) 4 eilr 9, 1516.
Definition 912, 913, 9245.
176 G.P. Fletcher, The Indefinable Concept of Terrorism 894, 8967.
177 Views on the need to define terrorism and the existence of terrorism as a crime in itself,
are varied; see T. Weigend, The Universal Terrorist: The International Community Grappling with a Definition 912, 926. George Fletcher argues that terrorism is a super-crime
that incorporates varying combinations of at least 8 factors: the factor of violence, the
required intention, the nature of the victims, the connection of the offender to the State,
the justice and motive of their cause, the level of Organization, the element of theatre
and the absence of guilt; G.P. Fletcher, The Indefinable Concept of Terrorism 894. Antonio Cassese made the case for terrorism as a discrete international crime in customary
international law; A. Cassese, The Multifaceted Criminal Notion of Terrorism in International Law (2006) 4 jicj 933.
178 M.C. Bassiouni, Effective National and International Action against Organized Crime and
Terrorist Criminal Activities 9, 1617.
179 Martin Scheinin argues, for instance, that the definition of terrorism in, para. 3 of unsc
Resolution 1566 (2004) could have been adopted in unsc Resolution 2178 (2014) as
a means of affording greater clarity as to the scope of its applicability, and in order to
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activities and persons it requires States to address in their implementation of

its Resolutions.
3
A Multilateral Approach to Counter-Terrorism
In addition to the ambiguities in sc Resolutions such as sc Resolution 2178, the
ineffectiveness of the obligations they impose upon States is often the result
of practical challenges they face, questioning the overall utility of sc-imposed
counter-terrorism strategy.180 States are required to implement a variety of
obligations in the context of the Middle East crisis, and the extent of their
compliance so far is not encouraging. Foreign terrorist fighters continue to be
recruited from over a hundred countries,181 many of which lack the political
will and resources to prevent their movement across borders.
The use of diplomatic instruments, including information-sharing and operational assistance, has also been infrequent,182 displaying a broader absence
of international cooperation among them. The Counter-Terrorism Committee
(ctc), established to support States in their implementation of international
obligations relating to terrorism,183 reports that the widespread failure to fulfil the requirements of sc Resolution 2178 is primarily a result of the absence
of bilateral treaties to facilitate the extradition of foreign terrorist fighters.184
The ctc also identifies deficiencies in areas ranging from mutual assistance in
criminal investigations and the collection of evidence, to border controls and
related areas of international judicial cooperation.185
180
181
182
183
184
185
revent its misuse; M. Scheinin, Back to post-9/11 Panic? Security Council Resolution on
p
Foreign Terrorist Fighters.
M.C. Bassiouni, Effective National and International Action against Organized Crime and
Terrorist Criminal Activities 9, 18.
unsc Action against Threat of Foreign Terrorist Fighters Must be Ramped Up, Security
Council Urges in High-Level Meeting (29 May 2015) un Doc. SC/11912.
Z. Goldman, The Foreign Fighter Resolution: Implementing a Holistic Strategy to Defeat
isil (29 September 2014) Just Security, available at http://justsecurity.org/15721/foreign
-fighter-resolution-implementing-holistic-strategy-defeat-isil/ (accessed 21 December
2015).
The Counter-Terrorism Committee was established under unsc Resolution 1373 (2001)
and 1624 (2005); for more information, see http://www.un.org/en/sc/ctc/ (accessed 21
December 2015).
unsc Letter Dated 7 November 2014 from the Chair of the Security Council Committee
Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism Addressed
to the President of the Security Council (12 November 2014) un Doc. S/2014/807, para 9.
unsc Letter Dated 7 November 2014 from the Chair of the Security Council Committee
Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism Addressed
97
In this context, the value of multilateral cooperation to combat terrorism

cannot be overstated, both in conferring legitimacy upon military operations,
and in ensuring the effective implementation of non-forcible measures. After
the terrorist attacks of 9/11, the us relied heavily on sc Resolutions 1368 and
1373 as a multilateral endorsement of a claim to use force unilaterally,186 and
in other contexts States have relied on the representative legitimacy of regional
organizations.187 The leadership of a regional organization (admittedly based
on a loose reading of Art. 53 (1) un Charter) would certainly reduce the potential for abuse in the face of overwhelming humanitarian considerations,188
and would play an important role in promoting consistency in the coalitions
ongoing military operations in Syria.189
More formal expressions of multilateral agreement are also beneficial in
promoting the implementation of sc-imposed obligations. A number of international conventions identifying and criminalising specific forms of terrorist conduct are already in force,190 and a handful of regional anti-terrorism
conventions have also been concluded.191 The gas Global Counter Terrorism
186
187
188
189
190
191
to the President of the Security Council (12 November 2014) un Doc. S/2014/807,
para.316.
See generally T. Gazzini, natos Role in the Collective Security System (2003) 8 jcsl 231,
231263.
T.M. Franck, When, If Ever, May States Deploy Military Force Without Prior Security
Council Authorization? (2000) 4 Sing jls. L. 362, 373.
K. DeYoung and L. Sly, us Allies in Middle East Ramping up Support for Rebel Forces
in Syria (29 April 2015) The Washington Post, available at https://www.washingtonpost
.com/world/national-security/us-allies-in-middle-east-ramping-up-support-for-rebel
-forces-in-syria/2015/04/29/07b1d82c-edc811e48666-a1d756d0218e_story.html(accessed
21 December 2015).
A list of existing terrorism-related conventions is available at https://treaties.un.org/
Pages/DB.aspx?path=DB/studies/page2_en.xml (accessed 21 December 2015); T. Weigend,
The Universal Terrorist: The International Community Grappling with a Definition 912,
919.
Existing regional anti-terrorism conventions include the Arab Convention on the Suppression of Terrorism 1998, Convention of the Organization of the Islamic Conference
on Combating International Terrorism 1999, the European Convention on the Suppression of Terrorism 1977, the oas Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International
Significance 1971, the oau Convention on the Prevention and Combating of Terrorism
1999, the saarc Regional Convention on Suppression of Terrorism 1987, and the Treaty
on Cooperation among States Members of the Commonwealth of Independent States in
Combating Terrorism 1999.
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S trategy, adopted in 2006, offers additional guidance to States, having identified

the causes of terrorism and corresponding measures that may be taken to address them preventively.192 Identifying specific forms of terrorist conduct and
setting legal standards for their criminalisation through treaties also p
romotes
greater respect for human rights and the rule of law in States counter-terrorism
initiatives.193 Through existing and future treaty-based agreements, States will
be able to construct an enduring framework of multilateral cooperation to support the implementation of sc decisions under Chapter vii of the un Charter
whenever a new terrorist threat emerges.
vi Conclusion
The use of force against the isil in Iraq and Syria reveals new challenges in
the jus ad bellum. Many of the questions that arise are, admittedly, not entirely
new. The idea that a non-State actor may commit an armed attack under Art. 51
un Charter, for example, is well accepted, but States have remained committed
to the need to attribute responsibility for these attacks to States, relying as
in the present circumstances on the dubious unwilling or unable standard.
The lack of clarity as to its specific requirements is expressed clearer than ever
before in the present Syrian context, with President Assad presumably willing
but unable to counter the isil threat. In the absence of a clear basis of attribution, the legality of ongoing forcible measures against the isil on Syrian territory remains highly contentious.
It is also worth noting that while States justifications for the use of force
in Syria puts pressure on the scope of Art. 51 un Charter, their insistence
upon the collective self-defence of Iraq also implies that they continue to perceive theprohibition on the use of force as binding.194 In light of this marked
192 Available at http://www.un.org/en/terrorism/strategy-counter-terrorism.shtml (accessed
21 December 2015).
193 N. Schrijver and L. van den Herik, Leiden Policy Recommendations on Counter-Terrorism
and International Law 571, para. 6; M. Scheinin, Back to Post-9/11 Panic? Security Council
Resolution on Foreign Terrorist Fighters.
194 The prohibition on the use of force in Art. 2 (4) un Charter remains a core principle
of contemporary international law; P. dArgent and N. Susani, United Nations, Purposes and Principles in R. Wolfrum (ed), Max Planck Encyclopedia of Public International
Law (oup 2008), available at www.mpepil.com (accessed 21 December 2015), para. 15;
J. dAspremont, The Collective Security System and the Enforcement of International
Law 129, 1545; J. Crawford and R. Nicholson, The Continued Relevance of Established
Rules and Institutions Relating to the Use of Force 96, 112; C.J. Tams, The Use of Force
99
reference for self-defence under Art. 51 un Charter, the limited role of the sc
p
in the use of force, despite the presence of a sizeable coalition of States that
continues to conduct airstrikes and other forms of intervention in Iraq and
Syria, is worrying. At the time of writing, the sc has been unable to authorize
the use of force under Art. 42 un Charter even having determined the existence of an ongoing threat to international peace and security posed by the
isil, raising questions about the effectiveness of the sc as an institution capable of authorising the use of force by the anti-isil coalition in Syrian territory.
The ever-changing nature of the terrorist threat to international peace and
security has also placed the existing system of collective security under considerable strain. To be sure, the sc has taken full advantage of the flexibility
of its mandate within the Charter framework, relying on Art. 41 un Charter to
impose upon States an obligation to criminalize terrorist acts, and implement
other domestic measures as part of the counter-terrorism strategy initiated in
2001. The Foreign Terrorist Fighter Resolution has been an important form of
intervention by the Council, but its inconsistent and uneven application by
States, particularly those from which foreign terrorist fighters are recruited,
remains an enormous challenge.
An important reason for States limited implementation of the scs
terrorism-related Resolutions is the lack of collaboration among them. This requires more than exercises in law-making by the sc, which, as we have already
seen, are typically ambiguous. Bilateral and multilateral treaties are necessary
to create enduring frameworks of inter-State cooperation that will not only aid
States in their implementation of existing obligations under anti-terrorism
conventions and sc Resolutions, but also improve the Councils ability to act
effectively against new and unexpected threats to international peace and
security in the future.
against Terrorists, 359, 3823, J. dAspremont, The Collective Security System and the
Enforcement of International Law 129, 1545.

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chapter 3

The Role of the Security Council in the Use of Force

koninklijke brill nv, leiden, 6|doi 10.1163/18757413-00190004

The Role of the Security Council in the Use of Force

-beheadings-150216063339037.html (accessed 21 December 2015).

prioritized fighting the Syrian Government over the implementation of its

States Justifications for the Use of Force

The Role of the Security Council in the Use of Force

armed conflict.13 However, determining the threshold of effectiveness below

The Role of the Security Council in the Use of Force

The Role of the Security Council in the Use of Force

The view that collective self-defence permits States to assist an attacked

force in Syria,44 though nato itself holds no unilateral power of enforcement

The Role of the Security Council in the Use of Force

The Role of the Security Council in the Use of Force

atter was presumably settled in Genocide (Bosnia and Herzegovina v Serbia

The Role of the Security Council in the Use of Force

cooperation with President Assads Government as a justification for the use

The Role of the Security Council in the Use of Force

The Relationship between Self-Defence and Enforcement Action

the most serious threats to international peace and security. sc Resolutions

The Role of the Security Council in the Use of Force

of legitimation by the international community that is absent in the existing

Should the sc Maintain its Pivotal Role in the Use of Force?

The Role of the Security Council in the Use of Force

Suppression of the Financing of Terrorism 1999 on States in the aftermath of

The Role of the Security Council in the Use of Force

Councils inability to exercise its responsibility for the maintenance of peace

The Washington Post, available at http://www.washingtonpost.com/world/

The Role of the Security Council in the Use of Force

A Multilateral Approach to Counter-Terrorism

(2)in compliance with sc Resolutions under Chapter vii of the un Charter.141

141 Art. 25 un Charter.

The Role of the Security Council in the Use of Force

include the prevention and suppression of the financing of terrorist acts,147

The Role of the Security Council in the Use of Force

The Resolutions ambiguous definition of foreign terrorist fighters which

The Role of the Security Council in the Use of Force

activities and persons it requires States to address in their implementation of

The Role of the Security Council in the Use of Force

In this context, the value of multilateral cooperation to combat terrorism

S trategy, adopted in 2006, offers additional guidance to States, having identified

The Role of the Security Council in the Use of Force

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