5 AsianSIL Biennial Conference 2015 International ...

5th AsianSIL Biennial Conference 2015 Thursday and Friday, 26 & 27 November 2015

International Law and the Changing Economic & Political Landscape in Asia COVER PAGE FOR PAPER SUBMISSION On the Legality of Joint Military Activities against Terrorist Groups Dr. Eric Corthay [email protected]

Note: Please note that AsianSIL & the conference organisers will distribute the papers to conference participants only for the sole purpose of discussion. The papers will be made available electronically on document sharing portal with access limited to registered conference delegates only. This does not constitute publication; papers will not thereafter be published by the conference organizers or made available to individuals or libraries. Presenters will retain copyright of their papers and will be free to submit them for publication elsewhere. No papers may be cited without prior permission from the authors. Submissions of finalized papers may be made separately to the Society’s Asian Journal of International Law. Publication is subject to a double-blind peer-review and editorial discretion. Details may be found on the Journal’s Web site www.AsianJIL.org.

For AsianSIL Secretariat Use Only Date of Presentation (delete where applicable): Friday, 27 Nov 2015 Panel Assigned:

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Introduction For years, States have been cooperating in order to prevent and eradicate the scourge of terrorism that threatens international peace and security. Cooperation to combat terrorism is notably illustrated by the carrying out of joint military activities understood as military operations launched together by two or more States against terrorist groups localized in the territory of a third one, or counter-terrorism cooperation between the host State and one or several foreign States 1 . From the Sahel-Sahara region to Afghanistan, from Syria to the Philippines, joint military activities have appeared in different forms ranging from combat operations to non-combat missions (e.g. advising, training, equipping, or providing intelligence). As the term terrorism has not yet received a universally recognized definition, the joint military activities analyzed in our paper are those considered as being part of the international struggle against terrorism by the States who conduct these activities. Joint military activities conducted in the context of the fight against terrorism are not left at the sole discretion of the States. On the contrary, they are governed by international law, and, notably, either by the jus contra bellum or the legal regime of intervention by invitation. After briefly describing the content of the principle prohibiting the use of force (I), our paper will analyze the two exceptions to the principle, namely the right of self-defense and the use of force authorised by the UN Security Council. In that regard, the merits of the arguments consisting of justifying Operation Enduring Freedom and military airstrikes against the Islamic State in Syria under the right of self-defence will be assessed. With regard to the situation in Syria, particular attention will be drawn to the ‘unwilling or unable’ test. Then, our paper will examine the application of the mechanism of collective security to the fight against terrorism. After briefly explaining that original mechanism, the current practice of the Security Council consisting of authorizing States to use force will be analysed, a practice which is illustrated in the context of the fight against terrorism by the mission of MINUSMA in Mali and ISAF in Afghanistan (II). Finally, as several military activities are currently being carried out with the consent or at the request of the States in whose territory they are conducted, this paper will briefly analyse the legal regime of intervention by invitation. Before examining the recent practice of intervention in the context in question, we will clarify the conditions that an intervention must meet in order to be lawful (III)2. I. The principle prohibiting the use of force Since 1945 at least, international law has proscribed the threat or use of force in the international relations between States. This fundamental principle prohibiting the use of force is enshrined in Article 2(4) of the UN Charter which provides that [a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

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From the terminology point of view, what we call in our paper ‘joint military activities’ are military actions conducted by forces of two or more nations. It has a broader meaning than the term ‘joint operations’ as defined by the US Department of Defense who seems to reserve this term to operations conducted by forces composed of elements of two or more military departments but from the same national army. See Department of Defense Dictionary of Military and Associated Terms, Nov. 8, 2010 (as amended through Jun. 15, 2015), Joint Publication 1-02. 2 Due to limitations of space, we cannot pretend to be exhaustive in our analysis; sometimes only the main characteristics of a concept, principle, doctrinal theory or mechanism will be outlined. Readers are invited to consult references in footnotes for further details. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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This provision “constitutes the basis of any discussion of the problem of the use of force”3. A clarification of its terms seems therefore required. The notion of ‘force’ has created much debate. The prevailing view is that the term must be limited to the notion of direct or indirect ‘armed force’ and does not comprise other forms of force like, for example, political and economic coercion4. Indeed, in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (hereinafter “the Friendly Relations Declaration”) – a document which is annexed to Resolution 2625 (XXV) of the General Assembly and which represents what the Members of the United Nations agree to be the law of the Charter on the principles addressed in the Declaration in 19705 – the section dealing with the prohibition of force only refers to the notion of armed or military force6. Moreover, in order to be qualified as a ‘use of force’, a military operation must affect the territory, people or objects placed under the jurisdiction of another State7. A contrario, the mere non authorized flights by foreign military aircrafts over the airspace of State A are, in general, qualified as a violation of the sovereignty of State A but not a violation of the principle embodied in paragraph 48. Furthermore, the wording ‘international relations’ indicates that the jus contra bellum is essentially an inter-State regime proscribing military coercion – the threat or use of force – by a State against another one, in violation of the sovereignty of the latter9. This does not mean that State A is authorized to use force against non-state actors based in the territory of State B, under the pretext that targeting such actors rather than a State per se would not constitute a breach of the principle of non-use of force. Indeed, by using force without the authorization of the host State, State A infringes upon the sovereignty of State B, places its action on an interstate level, and violates the principle prohibiting the use of force. Following a narrow interpretation of Article 2(4) in fine (“against the territorial integrity… United Nations”), some scholars argue that the principle in question is infringed only when a military operation intends to overthrow a foreign government or annex a foreign territory 10 . In their opinion, therefore, targeted killings, rescue operations, as well as the bombardment of terrorists’ training camps abroad would not be prohibited by the principle11. Such a view must be rejected. At the Conference of San Francisco in 1945 the terms ‘territorial integrity’ and ‘political independence’ have not been included in paragraph 4 to restrict the scope of the prohibition of the use of force, but rather to emphasize the need to 3

Albrecht Randelzhofer, ‘Article 2(4)’, in: Brunno Simma (ed.), The Charter of the United Nations, A Commentary, vol. I, Munich, C.H. Beck, 2002, at 116. 4 See notably Hans Wehberg, ‘L’interdiction du recours à la force. Le principe et les problèmes qui se posent’, Collected Courses of the Hague Academy of International Law, t. 78, 1951, at 69 [hereinafter “Collected Courses…”]; Dereck W. Bowett, Self-Defence in International Law, Manchester, Manchester University Press, 1958, at 148; Ian Brownlie, International Law and the Use of Force by States, Oxford, Clarendon Press, 1963, at 362. 5 Robert Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’, AJIL, vol. 65, issue 4, 1971, at 713-14. 6 For other reasons in favor of a restrictive interpretation of the notion of force, see notably Eric Corthay, La lutte contre le terrorisme international, De la licéité du recours à la force armée, Bâle, Helbing Lichtenhahn, 2012, at 37-38; Albrecht Randelzhofer, supra note 3, at 118. 7 Brownlie, supra note 4, at 363-364; Pierre-Marie Dupuy, public sitting, 15 June 1998, Fisheries Jurisdictions (Spain v. Canada), CR 1998/13, at 59, para. 22. 8 Brownlie, id. 9 Olivier Corten, The Law Against War, The Prohibition on the Use of Force in Contemporary International Law, Oxford and Portland, Oregon, Hart Publishing, 2012, at 169. 10 See notably Bowett, supra note 4, at 152 and 186; Rosalyn Higgins, ‘The Legal Limits to the Use of Force by Sovereign States: United Nations Practice’, BYIL, vol. 37, 1961, at 317. 11 See notably Louis Henkin, How Nations Behave: Law and Foreign Policy, New York, Columbia University Press, 2nd ed., 1979, at 141-145; Gregory M. Travalio, ‘Terrorism, International Law, and the Use of Military Force’, Wisconsin Int'l L.J., vol. 18, 2000, at 166; Jordan J. Paust, ‘Use of Armed Force against Terrorists in Afghanistan, Iraq, and Beyond’, Cornell Int'l L.J., vol. 35, num. 3, 2002, at 536. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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protect these two core elements of statehood, namely territorial integrity and political independence12. According to the predominant opinion, the principle in question proscribes any kind of forcible trespassing that violates international frontiers and State sovereignties13. The term ‘territorial integrity’ must be interpreted as ‘territorial inviolability’14 or inviolability of frontiers, and the ‘political independence’ of a State is deemed to be immediately infringed when a foreign military action is conducted without the authorization of the territorial State, even if that action does not result in overthrowing the government of the said State15. II. The exceptions to the principle prohibiting the use of force Several counter-terrorism military operations, sometimes carried out by a coalition of States, have been conducted in different places in the World. When they are not justified under the regime of intervention by invitation, these operations are usually justified, whether wrongly or rightly, by either of the two exceptions to the principle prohibiting the use of force, i.e. the right of self-defense (1), or an authorization given by the Security Council (2). 1. The right of self-defense An example of military cooperation in the context of the fight against terrorism occurred in the aftermath of the 9/11 terrorist attacks, when, on October 2, 2001, the United States and the United Kingdom launched Operation Enduring Freedom against al-Qaida and the Taliban regime in Afghanistan, justifying it by the right of self-defense. Indeed, in the letter addressed to the President of the Security Council, the US Permanent Representative to the United Nations, John D. Negroponte, declared that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 200116.

More recently, on September 23, 2014, the United States and an array of Arab allies launched airstrikes in Syria against the Islamic State (hereinafter “Islamic State”, “ISIS”, or “ISIL”) and al-Qaida targets which pose terrorist threats to the United States and its allies. These strikes have also been justified by the right of self-defense. In her letter to the UN Secretary-General, the US Permanent Representative, Samantha J. Power, declared: States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 of the 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.17

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See declarations of Honduras, Egypt, New Zealand, Ethiopia, Bolivia, UNCIO, 1945, vol. IV. See notably Humphrey Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, Collected Courses…, t. 81, 1952-II, at 493; Brownlie, supra note 4, at 267; Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, Collected Courses…, t. 159, 1978-I, at 89-92. 14 This expression is notably used by Lassa F. L. Oppenheim, International Law: a Treatise, vol. 2, Disputes, War and Neutrality, 7th ed., H. Lauterpacht (ed.), London, New York, Longmans Green, 1952, at 154. 15 Corthay, supra note 6, at 57-58. 16 UN Doc. S/2001/946. See also the letter dated Oct. 7, 2001 from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2001/947. 17 See letter dated Sept. 23, 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, UN Doc. S/2014/695. 13

Eric Corthay – 5th AsianSIL Biennial Conference 2015

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Some of the other States that are conducting airstrikes against ISIL in Syria as part of international efforts led by the United States also justify their operations by relying on international law. In 2014, the United Kingdom reported to the Security Council that it “is taking measures in support of the collective self-defence of Iraq”18, and in 2015 the country justified a specific airstrike against an ISIL vehicle by its “individual right of self-defence”19. Canada also invoked its “support of the collective self-defence of Iraq”. In addition, arguing that ISIL “continues to pose a threat not only to Iraq, but also to Canada […] as well as to other countries”, it invoked the inherent rights of individual and collective self-defense and declared – as did the United States – that “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory”20. Likewise, in September 2015, France justified its first strikes against the Islamic State by its right of self-defense to stop the terrorists who are preparing attacks against France21. Taking into consideration the international jurisprudence and actual State practice, the view must be taken that Operation Enduring Freedom in Afghanistan and the US-led operation in Syria cannot be justified by the right of self-defense, as the conditions of invocation (at least) of that right – i.e. existence of an armed attack by a State – has not been met in casu22. a) Requirement for an armed attack to exist Article 51 of the UN Charter provides that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. The requirement for an armed attack to exist was confirmed in the Nicaragua case by the International Court of Justice (hereinafter “the Court”) which held that such an attack is “the condition sine qua non required for the exercise of the right of […] self-defence”23. The answer to the question whether a particular form of use of force by a State might be qualified as an armed attack depends upon the degree of gravity of the said act24. Indeed, in the 1986 judgment the Court held: “As regards certain particular aspects of the principle [prohibiting the use of force], it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.”25 Referring to the Friendly Relations Declaration, the Court stated that “organizing, instigating, assisting or participating in […] terrorist acts in another State or acquiescing in organized

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See identical letters dated Nov. 25, 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/851. 19 See letter dated Sept. 7, 2015, from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/688. 20 See letter dated Mar. 31, 2015, from the Chargé d’affaires a.i. of the Permanent Mission of Canada to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/221. 21 See Dominique Vidalon, ‘France carries out first air strikes on Islamic State’, The Sydney Morning Herald, Sept. 27, 2015, available at http://www.smh.com.au/world/france-carries-out-first-air-strikes-on-islamic-state20150927-gjw2t3.html. 22 Due to limitations of space, we cannot address the conditions of implementation of the right of self-defense (necessity and immediacy). For more details on such conditions, see notably Corthay, supra note 6, at 273-336. 23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, para. 237 [hereinafter “Nicaragua case”]. See also, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports 2003, para. 51 [hereinafter “Oil Platforms case”]. 24 For an analysis of the degree of gravity of an armed attack, see Corthay, supra note 6, at 104-117. 25 Nicaragua case, supra note 23, para. 191. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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activities within its territory directed towards the commission of such acts” are examples of what constitute “less grave forms” of use of force and not armed attacks26. b) Armed attacks are acts of States Some scholars and certain members of the international community assert that an armed attack giving rise to the right of self-defense can be carried out by individuals or groups of individuals even when those entities have no sufficient connection with a State for attributing their violent conduct to that State 27 . For that, and among other arguments which notably include a reference to the Caroline case, they sometimes refer to Resolutions 1368 and 1373 adopted by the Security Council in the wake of the 9/11 terrorist attacks. As, in the third paragraph of the preamble of Resolution 1368, the Security Council recognized “the inherent right of individual or collective self-defence in accordance with the Charter”28, some authors have affirmed that the Security Council recognized the right for the United States to react in self-defense against al-Qaida irrespective of the fact that their terrorist attacks had not been attributed to any State29. However, for the reasons mentioned infra, many scholars, to which we subscribe, have serious reservations with regard to the opinion according to which the act that triggers a reaction in self-defense might be the conduct of a person or group of persons which is not attributed to a State30. With regard to the aforementioned resolutions, for example, Olivier Corten suggests that the recognition of the right of self-defense by the Security Council in its two resolutions should be interpreted as a reminder of a relevant international rule which can apply only if its whole conditions are fulfilled31. We maintain that one of these conditions is that armed attacks be attributed to States. This has been affirmed by the International Law Commission and on several occasions – before as well as after September 2001 – by the Court. The International Law Commission, which is responsible for the codification and progressive development of international law, points out that the act which triggers an action 26

Id. The Friendly Relations Declaration mentions also other examples of less grave forms of use of force or indirect use of force. In our opinion, a recent case of indirect use of force could be illustrated by the US Special Forces’ program consisting of training, equipping and sending back into Syria a small group of New Syrian Army fighters. 27 See notably Waldock, supra note 13, at 463-464, and 498; Bowett, supra note 4, at 55-56; James E. S. Fawcett, ‘Intervention in International law. A Study of Some Recent Cases’, Collected Courses…, 1961-II, at 363; Ruth Wedgwood, ‘Responding to Terrorism: The Strikes Against bin Laden’, Yale J.Int'l L., vol. 24, num. 2, 1999, at 564; Thomas M. Franck, ‘Terrorism and the Right of Self-Defense’, AJIL, vol. 95, num. 4, 2001, at 840; Yoram Dinstein, War, Aggression and Self-Defence, 3rd ed., Cambridge, Cambridge University Press, 2001, at 192 and 214; Paust, supra note 11, at 534. 28 The Security Council reaffirms the same right in Resolution 1373 (2001). 29 See Franck, supra note 27, at 840; Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’, SDILJ, vol. 4, 2003, at 17.See also Separate Opinion of Judge Koojimans and Declaration of Judge Buergenthal in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 35 and para. 6 resp. [hereinafter “Wall case”]; Separate Opinion of Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 11 [hereinafter “Republic Democratic of the Congo case”], para. 11. 30 See inter alia Joseph L. Kunz, ‘Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations’, AJIL, vol. 41, num. 4, 1947, at 878; Hans Kelsen, ‘Collective Security and Collective SelfDefense under the Charter of the United Nations’, AJIL, vol. 42, num. 4, 1948, at 791; Eric P. J. Myjer, Nigel D. White, ‘The Twin Towers Attack: an Unlimited Right to Self-Defence ?’, JCSL, vol. 7, 2002, at 7; Marcelo G. Kohen, ‘Is the Legal Argument for Self-Defence against Terrorism Correct ?’, in: Wybo P. Heere (ed.), From Government to Governance, The Growing Impact of Non-State Actors on the International and European Legal System, The Hague, TMC Asser Press, 2003, at 290. 31 Olivier Corten, ‘Vers un renforcement des pouvoirs du Conseil de sécurité dans la lutte contre le terrorisme?’, in: Karine Bannelier, et al. (ed. by), Le Droit international face au terrorisme, CEDIN-Paris I, Pedone, Cahiers internationaux num. 17, 2002, at 264. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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in self-defense must be an internationally wrongful act, i.e. an act of State. Indeed, in the Addendum to the eighth report on State responsibility, Roberto Ago underlined that “the State takes action [in self-defense] after having suffered an international wrong, namely, the nonrespect of one of its rights by the State against which the action in question is directed”32. Then, when clarifying the nature of the ‘wrong’, Ago underscored that “the only international wrong which, exceptionally, makes it permissible for the State to react against another State by recourse to force, despite the general ban on force, is an offence which itself constitutes a violation of the ban”33. This being said, international law is not static. Therefore, it is a priori not impossible that the customary law of self-defense has evolved since the establishment of the Ago’s report, and that nowadays the said customary law authorizes States to react in self-defense in case of armed attack perpetrated by non-state actors whose conduct is not attributed to any State. However, for a new interpretation of a customary rule to be possible, some conditions must be met. In particular, actual practice of “the international community of States as a whole”34, – a practice that reflects their opinio juris – must have been constant and uniform. Examination of actual State practice shows that some States – in particular Israel, the United States and Iran – have often invoked a right of self-defense to justify their military reactions against non-state actors after terrorist attacks35. Sometimes, they have even explicitly qualified the terrorist attacks as armed attacks. However, it is worth noting that the international response to all those operations shows clear divisions between States. If some have supported the victim States, others have criticized and condemned their conduct, qualifying sometimes their operations as aggressions or reprisals 36 . Consequently, as the actual practice of the international community of States as a whole is not uniform, a right of self-defense in case of attack or armed attack perpetrated by non-state actors whose conduct is not attributed to any State does not seem to exist (yet) in general international law. The examination of international jurisprudence confirms our opinion. For almost forty years, the Court has recalled many times that an armed attack is and must be understood as being an act of State. For example37, in 1986, in the Nicaragua case, the Court linked and quasi assimilated the concept of armed attack mentioned under Article 51 of the UN Charter with the concept of aggression used in the Annex (Definition of Aggression) to the Resolution 3314 (XXIX) of the General Assembly 38 . Article I of the Annex defines the concept of aggression as “[…] the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations” 39 . Almost twenty years later, in the Wall case, when answering the question whether the construction of a wall between Israel and Palestine could be justified by the right of self-defense, the Court held that “Article 51 of the Charter […] 32

Roberto Ago, ‘Addendum to the eighth report on State responsibility: The internationally wrongful act of the State, source of international responsibility’, Y.B. Int’l L. Comm’n, Vol. II, Part. One, 1980, at 54, para. 89. 33 Id. See also Linos-Alexandre Sicilianos, Les réactions décentralisées à l’illicite : des contre-mesures à la légitime défense, Paris, LGDJ, 1990, at 297. 34 See Art. 53 of the Vienna Convention on the Law of Treaties, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. 35 See, e.g., declaration of Israel after Operation Peace for Galilee in Lebanon in 1982, UN Doc. S/PV.2376 (1982), para. 126; declaration of Israel after the operation against PLO’s headquarters in Tunisia in 1985, UN Doc. S/PV.2611 (1985), para. 59; declaration of Iran after airstrikes against training camps of the Kurdistan Democratic Party in Iraq in 1996, UN Doc. S/1996/602; declaration of the United States after airstrikes in Sudan and Afghanistan in 1998 against camps and installations used by the Bin Ladin organization, UN Doc. S/1998/780; declaration of Israel during the 2006 Israel-Hezbollah-war, UN Doc. S/2006/515; declaration of Israel during Operation Cast Lead in Gaza in 2008-2009, UN Doc. S/PV.6060 (2008) at 6. 36 For more details on the operations mentioned above and the positions of members of the international community, see notably Corthay, supra note 6, at 130-156. 37 See also Oil Platforms case, supra note 23, para. 51 and 61. 38 Nicaragua case, supra note 23, para. 195. 39 Emphasis added. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.”40 Then, as “Israel [did] not claim that the attacks against it are imputable to a foreign State” the Court concluded that Article 51 of the UN Charter had no relevance in this case41. c) The rules of attribution and the theory of complicity For the reasons mentioned supra, an armed attack is and can only be the conduct of a State. In order to know whether a terrorist attack perpetrated by non-state actors is susceptible to being referred to as an armed attack and to triggering a reaction in self-defense, it is inter alia necessary to determine if that terrorist act is attributable to a State. To do that, the rules of attribution mentioned under Chapter II of the Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter “Draft Articles on State Responsibility”) must be applied42. With regard to Operation Enduring Freedom, neither the United States nor the United Kingdom have declared that the 9/11 attacks were attributable to a State. Indeed, not once did they contend that bin Laden and his group were de jure organs of a government (Art. 4), or that their conduct was carried out on the instructions or under the direction or control of a State (Art. 8), or that their actions had been acknowledged and adopted by State authorities ex post facto (Art. 11). Concerning the airstrikes in Syria against ISIL and al-Qaida since September 23, 2014, the US Permanent Representative to the United Nations justified them by applying the “unwilling or unable” test43. According to that controversial doctrine, when the host State (e.g. Syria), is not willing or able to prevent – or to repress ex post facto – individuals (e.g. ISIL) from using its territory for launching terrorist attacks against another State (e.g. Iraq or the United States), it would be then lawful for the targeted State – or those acting in collective self-defense – to use force in self-defense in order to address that threat44. But, as seen supra, the right of selfdefense can only be applied in case of an armed attack which is, by its very essence, the act of a State. Therefore, the only way to render airstrikes in Syria lawful under the right of selfdefense, while applying the above mentioned doctrine, would be to attribute ISIL’s acts to Syria by considering that, when the host State does not want or cannot prevent or repress terrorist attacks of sufficient gravity carried out from its national territory, terrorist attacks would then be attributed to the host State. In other words, an extensive application of the theory of complicity would need to be made. However, it is worth mentioning that complicity has never been recognized by the International Law Commission as a condition of attribution of the acts of private individuals to a State. For the proponents of the theory of complicity as invoked in the context of the fight against terrorism 45 , the actions carried out in the territory of the victim State by private entities residing in the territory of the host State would be attributed to that latter State, not because the private entities would have acted on its behalf, on its instructions, or under its 40

Wall case, supra note 29, para. 139. Id. 42 See Resolution 56/83 of Dec. 12, 2001, in which the General Assembly took note of the Draft Articles on Responsibility of States for internationally Wrongful Acts. 43 See text accompanying footnote 17. On the ‘unwilling or unable test’, see the contribution of Ashley S. Deeks, ‘’Unwilling or Unable’: Toward a normative Framework for Extraterritorial Self-Defense’, Va.J. Int’l L., vol. 52, 2011-2012, at 483 ff. 44 See John B. Bellinger, Legal Issues in the War on Terrorism, conference given at the London School of Economics, Oct. 31, 2006, available at http://www2.lse.ac.uk/PublicEvents/pdf/20061031_JohnBellinger.pdf. 45 Yoram Dinstein, ‘Comments on the Presentations by Nico Kirsch and Carsten Stahn’, in: Christian Walter, et al. (eds), Terrorism as a Challenge for National and International Law: Security versus Liberty?, Heidelberg, Springer, 2004, at 920; Michael Byers, ‘Not yet havoc: geopolitical change and the international rules on military force’, Review of International Studies, vol. 31, supplement, 2005, at 58. 41


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direction or control, but simply because the host State would have failed to fulfill its ex ante facto duty of not tolerating, supporting or encouraging (e.g. funding, arming, training) the preparation in its territory of actions directed against the victim State, or its ex post facto duty of prosecuting and punishing or extraditing the offenders for their wrong46. In other words, States would be complicit and held responsible for the conduct of individuals when they notably fail to fulfill their international obligations of vigilance. Such an obligation can be broadly defined as a requirement for each State to protect other States, as well as the representatives and the nationals of these other States, against the illicit acts carried out or about to be perpetrated by individuals, when these acts are conceived, prepared and/or carried out within its territory or under its jurisdiction47. When applying the “unwilling or unable” test to the situation in Syria, it is important to distinguish between two different scenarios: the case where Syria would not be willing to prevent or repress terrorist acts detrimental to third States, and the case where Syria would not be able to do so. In the latter scenario, Syria would not commit any violation of the obligation of due diligence, and therefore, it would be difficult to condemn the country for its complicity with the acts of the terrorists and even more so to attribute to it the acts of the terrorists. Indeed, in the Genocide Convention case, the Court held that the obligation of vigilance is not an absolute one; it is an obligation of conduct and not of result48. The host State, Syria, is only required to employ, in good faith, all means reasonably available to prevent or repress nonstate actors’ conduct about to be perpetrated or perpetrated from its territory. When doing so, the host State fulfills its obligation of vigilance and cannot be accused of tolerating or acquiescing to the terrorist activities, even if, in fine, it is not able to efficiently prevent or repress such activities49. Assuming, now, that Syria would be able but unwilling to prevent or repress ISIL’s acts in Iraq or elsewhere, this does not mean that the injurious conduct of ISIL would become Syria’s acts. Acts committed by private individuals acting as such are not considered as acts of the State and therefore the latter is not held responsible for the acts of the formers50. Nevertheless, in casu, actions of ISIL might reveal the existence of an internationally wrongful act – an action or omission of the organs of Syria –, and it is that very wrongful act which entails the international responsibility of the State51. In other words, the acts of private individuals are described as ‘catalysts’, and what is attributed to the State and might involve its international responsibility are not the catalysts per se but what is revealed by the catalysts52. In the context of the fight against terrorism, the catalysts – i.e. the conduct of terrorists acting as private individuals – might highlight the violation of the due diligence obligation by the State in whose territory terrorist actions are conceived and prepared, i.e. the violation of the duty to prevent terrorist attacks and/or to punish their acts injurious to the other States insofar as possible. Such a breach arises notably when the host State uses indirect force, examples of which are listed in the Friendly Relations Declaration: organizing, assisting in terrorist acts in another State, acquiescing in organized activities within its territory, etc. As underlined by the

46 Roberto Ago, ‘Fourth Report on State Responsibility, The internationally wrongful act of the State, source of international responsibility’, Y.B. Int’l L. Comm’n, Vol. II, 1972, at 119-120, para. 135 (theory rejected by Ago). 47 Riccardo Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of International Responsibility of States’, GYIL, vol. 35, 1992, at 34 ff.; François Dubuisson, ‘Vers un renforcement des obligations de diligence en matière de lutte contre le terrorisme?’, in: Karine Bannelier, et al. (ed. by), Le Droit international face au terrorisme, CEDIN-Paris I, Pedone, Cahiers internationaux num. 17, 2002, at 141-157. See also Laura M. B. Janes et al. (U.S.A.) v. United Mexican States, RIAA, vol. 4, 1926, at 82 ff. 48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, para. 430. 49 See id.; Republic Democratic of the Congo case, supra note 29, para. 301. 50 Ago, supra note 46, at 96, para. 63. 51 Id. at 134, para. 140. 52 Id.


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Court, these acts constitute “less grave forms” of use of force and not armed attacks 53 . Consequently, as the conditions of invocation of the right of self-defense are not fulfilled, victim States are not authorized to use force in self-defence against the host State. 2. The system of collective security Given that most of the terrorist attacks are not attributed to a State – and that they are often so sudden and sporadic that the requirements of necessity and immediacy cannot be fulfilled54 – it is very difficult to justify a military counter-terrorism operation by the right of self-defense. If States still consider it necessary to use force against terrorists, it would be then preferable for them to look for an authorization from the Security Council, applying therefore the second exception to the principle prohibiting the use of force. Their military operations would be consequently an application of the mechanism of collective security – at least of its spirit if not of its letter – provided for by the Chapter VII of the UN Charter. Chapter VII is the very heart of the system of collective security. It starts with Article 39 that provides: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

This provision may be considered as the cornerstone of the system of collective security in the sense that it contains a summary of the powers given to the Security Council and necessary for the implementation of the mechanism of collective security: to determine the existence of a specific situation first, and then to decide what measures to take in order to maintain or restore international peace and security. a) The power of determination Determining whether a threat to, or a breach of, the peace, or an act of aggression exists is the condition sine qua non required for the adoption, then, of military or non-military enforcement measures under Articles 41 and 4255. The Security Council has been qualifying terrorism only as the first of the three cases mentioned in Article 39, namely a threat to the peace. It is only progressively that the Security Council has realized that terrorism impinges on international peace and security. The first relevant resolutions did not address the issue of terrorism in general but merely some of its modus operandi, such as the taking of hostages or hijackings 56 . Then, since 1992, the Security Council qualifies the acts of ‘international terrorism’ as threats to the international peace and security57. Finally, from 2003 onwards, the Council continuously reaffirms that ‘terrorism’, in all its forms and manifestation, – and no longer merely ‘international’ terrorism – constitutes one of the most serious threats to 53

Nicaragua case, supra note 23, para. 191. On these two requirements, see notably Corthay, supra note 6, at 237 ff; Judith Gardam, Necessity, Proportionality and the Use of Force by States, Cambridge, Cambridge University Press, 2004, at 148-187. 55 Jean Combacau, ‘Le Chapitre VII de la Charte des Nations Unies : résurrection ou métamorphose?’, in: Rafâa Ben Achour, Slim Laghmani, Les nouveaux aspects du droit international, Rencontres internationales de la Faculté des sciences juridiques, politiques et sociales de Tunis, Apr. 14-16, 1994, Paris, Pedone, 1994, at 144145. 56 See, e.g., Resolution 579 (1985). 57 See, e.g., Resolution 731 (1992) related to the Lockerbie bombing, Resolution 1373 (2001), Resolution 1377 (2001), Resolution 1438 (2002) related to Bali bombings, Resolution 1440 (2002) related to the hostage-taking terrorist attack in Moscow, Resolution 1450 (2002) related to the bombing at the Paradise Hotel in Kenya and the attempted missile attack on Arkia Israeli Airlines flight 582. 54


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international peace and security 58 . Moreover, an in-depth examination of the Security Council’s practice following the perpetration of terrorist acts reveals that at least four different terrorist-related situations have been qualified as a threat to international peace and security: the non-compliance by a government with the requests set out by the Security Council in a previous resolution59; the terrorist acts per se60; the terrorist acts and their implications61; and some terrorist groups and those associated with them62. b) From a centralized process to decentralized operations According to Article 39 of the UN Charter, after having determined the existence of a threat to the peace, breach of the peace or act of aggression, the Security Council shall “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. While Article 41 refers to non-military enforcement measures, Article 42 is related to military enforcement ones. With regard to the implementation of military enforcement measures, the founding fathers of the UN Charter had designed a very centralized mechanism of collective security, with national troops under the command and control of the Security Council. Article 42 of the UN Charter provides: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.

In order for the Security Council to be able to ‘take such action’, Article 43 lays down that Members of the United Nations “undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities”. However, this original mechanism has never been implemented as such. Indeed, due to political and ideological divergences between some Members of the Organisation, the special agreements mentioned under Article 43 have never been concluded. Without these agreements and, by consequence, multinational contingents under its command and control, the Security Council was obviously not able to take military action – stricto sensu – whenever necessary. Therefore, and especially since the end of the Cold War, the Security Council decided to develop a new practice, in conformity with the spirit of the Chapter VII, a practice which consists of authorizing UN Member States or regional arrangements to use force in order to maintain or restore international peace and security. In other words, the Security Council has decided to transfer some of its discretionary enforcement powers to Member States 63 . This process of delegation has introduced an element of decentralization in the system of collective security in the sense that now States decide on a voluntary basis whether,

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See, e.g., Resolutions 1530 (2004), 1611 (2005), 1735 (2006), 1787 (2007), 1805 (2008), 1904 (2009), 1963 (2010), 1989 (2011), 2083 (2012), 2129 (2013), 2133 (2014), 2199 (2015). 59 See Resolutions 731 (1992) and 748 (1992) related to the Lockerbie bombing, Resolution 1044 (1996) and 1054 (1996) related to the assassination attempt of President Mubarak. 60 See, e.g., Resolution 1438 (2002) related to Bali bombings, Resolution 1450 (2002) related to the bombing at the Paradise Hotel in Kenya, Resolution 1530 (2004) related to Madrid bombings, Resolution 1611 (2005) related to London bombings. 61 See Resolution 1644 (2005) related to the bombing that killed former Lebanese Prime Minister Hariri and the subsequent risk of destabilization of the country. 62 See, e.g., Resolutions 1617 (2005), 1989 (2011) and 2083 (2012) related to al-Qaeda and other individuals, groups, undertakings and entities associated with it. 63 Danesh Sarooshi, The United Nations and the Development of Collective Security, The Delegation by the UN Security Council of its Chapter VII Powers, Oxford, Oxford University Press, 1999, at 13. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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to which degree and for how long, they will take the necessary measures called for by the Security Council64. c) Two different types of military operations The Security Council’s practice of authorizing States to use force has led to the creation of two different types of military operations: the peace operations (also known as ‘blue helmets’) 65 and the multinational operations. In the context of the fight against terrorism, peace operations can be illustrated by the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA). Then, a relevant example of multinational operations is the International Security Assistance Force (ISAF) in Afghanistan. MINUSMA was established by Resolution 2100 (2013) adopted under Chapter VII66. Its mandate is notably to support the political process in Mali and to carry out a number of security-related stabilization tasks in a country threatened by terrorists and other transnational groups67. With regard to the threat posed by terrorists and other groups, the Security Council has authorized the States participating in the Mission to take all necessary measures, including the use of force, in order to stabilize key population centres and support the reestablishment of State authority throughout the country, to protect civilians and UN personnel, to support humanitarian assistance and protect cultural and historical sites 68 . The Mission is a good example of international cooperation as it is comprised of around ten thousand military personnel and around one thousand police personnel from more than forty countries. Although active in the struggle against terrorism, the Mission is not mandated to conduct offensive counter-terrorism operations. The reason is notably that “[t]he United Nations is not configured to oversee such operations at a strategic level, nor are its peacekeepers typically trained, equipped or experienced in this kind of operations”69. As evidence of the lack of capacity to conduct robust operations, in case the Mission is “under imminent and serious threat”, and “upon request of the Secretary-General”, French troops are authorized by the Security Council “to use all necessary means […] to intervene in support of elements of MINUSMA”70. ISAF is different from MINUSMA as it possessed strong military capacities to conduct more robust counter-terrorism operations. This multinational force has been established by Resolution 1386 (2001) adopted under Chapter VII. Indeed, in December 20, the Security Council [a]uthorizes […] the establishment […] of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment.

From August 2003, NATO assumed leadership of the ISAF operation and was responsible for the command, coordination and planning of the force. In October 2003, Resolution 1510 extended ISAF’s mandate to cover the whole of Afghanistan. As MINUSMA, the ISAF is a good example of international cooperation, as around forty eight nations have provided more 64

Jochen Abraham Frowein, Nico Krisch, ‘Article 42’, in: Simma Bruno (ed.), The Charter of the United Nations, A Commentary, 2nd ed., Oxford, Oxford University Press, vol. I, 2002, at 756. 65 For some considerations on the expanded scope of activities of recent peacekeeping operations, see Mateja Peter, ‘Between Doctrine and Practice: The UN Peacekeeping Dilemma’, Global Governance, vol. 21, num. 3, 2015, at 351-370. 66 Resolution 2227 (2015) extends the mandate of MINUSMA until June 30, 2016. 67 For more information, see MINUSMA, available at http://www.un.org/en/peacekeeping/missions/minusma/. 68 See Resolutions 2100 (2013), 2164 (2014) and 2227 (2015). 69 Report of the Secretary-General on the situation in Mali, UN Doc. S/2013/189, para. 70. 70 See Resolution 2100 (2013), para. 18, Resolution 2164 (2014), para. 26, and Resolution 2227 (2015), para. 27. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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than forty thousand military personnel to the International Force71. The mission of ISAF was multi-facetted and notably consisted of assisting the Afghan Government in the establishment of a secure and stable environment, strengthening the institutions, supporting the growth in capacity and capability of the Afghan National Security Forces (ANSF), supporting reconstruction and development in the country, and supporting humanitarian assistance. Moreover, and although this is first and foremost the mission of the Coalition (i.e. Operation Enduring Freedom), ISAF, together with ANSF, also carried out combat operations against the Taliban and other terrorist groups72. d) The letter of the resolutions authorizing the use of force The authorization given to States to use armed force must fall under a decision from the Security Council. The power to use force is not transferred to States as long as the Council has not clearly and formally decided so. On November 24, 2015, the Security Council adopted Resolution 2249 (2015). In paragraph 5, the Security Council [c]alls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with AlQaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria.

The question has been raised of whether in its resolution the Security Council has authorized States to use all necessary measures “to eradicate the safe haven [terrorist groups] have established over significant parts of Iraq and Syria”. A close attention paid to the wording of the resolution shows that the Security Council has not expressis verbis “authorized” all necessary measures, but rather “called upon” Member States to take such measures. Calling upon is not authorizing. In Resolution 2249 (2015), the Security Council does not transfer its enforcement powers to Member States, but merely encourages them to take all necessary measures in compliance with international law73. The discussions surrounding the adoption of the resolution also seem to confirm the fact that Security Council’s Members regard Resolution 2249 (2015) as providing for merely an encouragement, rather than an authorization, to use force against ISIL and other terrorist groups. Indeed, in their declarations, none of the Members referred to the second exception to the principle prohibiting the use of force (i.e. an authorization granted by the Council to use force), while some referred explicitly to the right of self-defense. For instance, the French representative – and it is worth mentioning that Resolution 2249 (2015) was proposed by France – stated that the events of 13 November were an armed aggression against France. Our military action, of which we informed the Security Council from the outset and which was justified as legitimate

71

See Troop numbers and contributions, available at http://www.nato.int/cps/en/natolive/107995.htm. See, e.g., ‘Afghan, ISAF forces launch Operation Spin Ghar’, press release 2007-689, available at http://www.nato.int. 73 See Dapo Akande, Marko Milanovic, ‘The Constructive Ambiguity of the Security Council’s ISIS Resolution’, EJIL: Talk!, Nov. 21, 2015, available at http://www.ejiltalk.org/the-constructive-ambiguity-of-thesecurity-councils-isis-resolution. 72


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collective self-defence, can now also be characterized as individual self-defence, in accordance with Article 51 of the Charter of the United Nations74.

The Security Council’s practice consisting of authorizing States to use force is varied. Most of the time, the resolutions do not lay down expressis verbis the authorization to resort “to armed force”, but only stipulate that States are authorized to take “all necessary measures” or “all necessary means” to fulfill the Council’s mandate. For example, in paragraph 3 of Resolution 1386 (2001), the Security Council “[a]uthorizes the Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate”. In paragraph 12 of Resolution 2164 (2014), the Council also “[a]uthorizes MINUSMA to take all necessary means to carry out its mandate”. At first glance, a brief examination of State practice is sufficient to conclude that this wording usually implies a resort to military action. However, in order to be absolutely certain that the will of the Council is to authorize the resorting to armed force, a case by case examination of the debates and the declarations of States surrounding each resolution needs to be conducted75. It should also be noted that the Security Council authorization has an ex nunc effect on the lawfulness of the operation76. In other words, and in the case where a military operation is launched before the adoption of the resolution authorizing States to use force, that operation is lawful from the moment the authorization is granted, and not from the moment it has started. Finally, in order to avoid abuses, it is important that the Security Council be able to supervise and apply general control over the mandated operations. This authority shows up when the Council establishes clear mandates and objectives for the missions, decides the duration of the operations, and requires periodic reports. The establishment of a clear and precise mandate is necessary to avoid the risk that mandated forces resort to force, under the pretext of an authorization given by the Security Council, to satisfy purely national interests instead of seeking to maintain or restore international peace and security. Once engaged in theater, UN mandated forces must respect the terms of the mandate decided by the Security Council; they are only authorized to take action within the framework established by the mandate, and have merely the right to use force that is necessary to fulfill the mandate established by the Council – save in situation of individual self-defense. Any other military action would be considered a priori as a violation of the principle prohibiting the use of force. The Security Council also decides the duration, the renewal and the end of a mandate. For example, in Resolution 2120 (2013), the Security Council “[decided] to extent the authorization of the International Security Assistance Force […] until 31 December 2014”. 74

France, UN Doc. S/PV.7565 (2015), at 2. See also declarations of the United States and the United Kingdom, resp. at 4 and 9. The position of the United Kingdom Prime Minister David Cameron is even more explicit. See Memorandum to the Foreign Affairs Select Committee, Prime Minister’s Response to the Foreign Affairs Select Committee’s Second Report of Session 2015-16: The Extension of Offensive British Military Operations to Syria, November 2015, at 15, available at http://www.parliament.uk/documents/commons-committees/foreignaffairs/PM-Response-to-FAC-Report-Extension-of-Offensive-British-Military-Operations-to-Syria.pdf: There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of selfdefence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end. 75 76

Corten, supra note 9, at 327. Corthay, supra note 6, at 388-389.


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This date also indicates the termination of the ISAF’s mandate, a termination scheduled since the Chicago Summit in May 2012 between Afghanistan and the nations contributing to the ISAF77. III. Interventions by invitation Military activities or operations conducted by one or several States in the territory of another State, with the valid consent or at the request of the latter, are often qualified as interventions by invitation, or intervention consented or authorized by the host State (hereinafter “intervention by invitation”)78. The international community does not appear to contest that consent may justify a military operation79. However, it should be underlined that the lawfulness of such a form of intervention depends upon the validity of the consent granted as well as the objective pursued by the intervention. Before examining the recent practice of intervention consented by the host State in the context of the fight against terrorism (1), it seems important to briefly clarify the legal regime of intervention by invitation (2). 1. The legal regime of intervention by invitation Consent justifies a military operation by one State in the territory of another only if it is valid. The International Law Commission has identified several criteria that consent must fulfill to be valid. Firstly, consent must be internationally attributable to a State, i.e. “it must emanate from an organ whose will is deemed, at the international level, to be the will of the State”80. In case of competition between different authorities of the host State, it seems that the legal opinion of the international community is that an appeal for outside intervention presupposes, for it to be justified, that it comes from a government that is both internationally recognized and that has a certain effective power. In the event of doubt about legitimacy or effective power, practice seems to profess a duty to abstain and refer matters to a Security Council decision.81

Secondly, consent must be given by the territorial State prior to the commission of the act82. Thirdly, consent must be given freely; i.e. “consent must not be vitiated by ‘defects’ such as error, fraud, corruption or coercion”83. Fourthly, consent must be clearly established and not presumed84. In addition, it should be noted that a particular act, which otherwise would have been considered as a breach of an international obligation, is lawful only if conducted “within the limits which the State expressing the consent intends with respect to its scope and duration”85.

77

See NATO, Chicago Summit Declaration on Afghanistan, May 20, 2012, available at http://www.nato.int/cps/en/natohq/official_texts_87595.htm? 78 We exclude from our analysis the operations which are, at the same time, formally authorized by the Security Council and consented by the host State. Operations and activities analyzed infra are those whose lawfulness is founded on the consent given by the host State. 79 See, e.g., S.C. Resolution 387 (1976). 80 Report of the International Law Commission on the work of its 31st session, 14 May – 3 August 1979, Y.B. Int’l L. Comm’n, Vol. II, Part Two, at 113, para. 15 [hereinafter “ILC Report-1979”]. 81 Corten, supra note 9, at 287. 82 ILC Report-1979, supra note 80, at 113, para. 16. 83 Id., at 112, para. 12. 84 Id., para. 14. 85 Id., at 113, para. 17. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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As reflected in the Draft Articles on State Responsibility 86 , the International Law Commission has considered that consent is a secondary rule of State responsibility (i.e. a circumstance precluding wrongfulness). However, some authors hold the view that consent should not be seen as an exception to the primary rule (e.g. the principle prohibiting the use of force, or the principle of non-intervention), but as a constituent part of the primary rule87. In our opinion, consent can be seen as a circumstance precluding wrongfulness, but as long as its final purpose is to prevent ex ante facto an act from becoming unlawful and not to annihilate or erase the unlawful character of a wrongful act ex post facto. Indeed, when referring to the principle prohibiting the use of force, two reasons can explain why consent should be seen as a circumstance excluding wrongfulness ex ante facto. Firstly, for consent to be valid, it must be given ex ante facto (see supra). If the consent is valid, then the military intervention consented to does not constitute a violation of the principle prohibiting the use of force or the principle of non-intervention in the internal affairs of another State. Therefore, as that act does not constitute any breach of an international obligation, no international wrongful act is perpetrated, and consequently no wrongfulness that consent can preclude ex post facto exists88. The second reason is related to the concept of jus cogens. The international community does not really contest the fact that a military intervention by invitation is legal if the consent granted and the aim pursued are valid. However, according to Article 26 of the Draft Articles on State Responsibility, circumstances excluding wrongfulness cannot “[preclude] the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”. Therefore, as the principle prohibiting the use of force embodied in Article 2(4) of the UN Charter constitutes an example of a rule having the character of jus cogens89, consent cannot preclude ex post facto the wrongfulness of a foreign military operation carried out in the territory of another State. Moreover, it is important to mention that the lawfulness of an intervention by invitation does not only depend on the validity of the consent given, but also on the objective pursued by the intervention. Most of the scholars who have analysed international State practice since 1945 have reached the conclusion that the international community has the legal conviction that foreign countries are not allowed to arbitrate or influence the course of an internal conflict. They must, on the contrary, comply with a duty of neutrality90. Not only are foreign States prohibited to provide military support to rebels who fight against and aim at overthrowing the government of their country91, they have also the obligation of refraining from interfering in an internal armed conflict, in favour of the national authorities, against 86

See Art. 20 of the Draft Articles on State Responsibility: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.” 87 See, in that sense, James Crawford, ‘Second report on State responsibility’, Y.B. Int’l L. Comm’n, Vol. II, Part One, 1999, at 63, para. 242; Antonio Tanca, Foreign Armed Intervention in Internal Conflict, Dordrecht, Boston, London, Martinus Nijhoff, 1993, at 47; Natalino Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity, Dordrecht, Boston, Martinus Nijhoff Publishers, 1985, at 88; Corten, supra note 9, at 254; Theodore Christakis, Karine Mollard-Bannelier, ‘Volenti non fit injuria? Les effets du consentement à l’intervention militaire’, AFDI, vol. 50, 2004, at 111, 113. 88 Roberto Ago, ‘Eighth report on State responsibility: The internationally wrongful act of the State, source of international responsibility’, Y.B. Int’l L. Comm’n, Vol. II, Part One, 1979, at 30, para. 55. 89 In its commentary to Art. 53 of the Vienna Convention on the Law of Treaties, the International Law Commission “pointed out that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.” See Report of the International Law Commission on the work of its eighteenth session, Geneva, 4 May – 19 July 1966, Y.B. Int’l L. Comm’n, Vol. II, 1966, at 247. 90 See, e.g., Corten, supra note 9, at 289, 294, 296; Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’, BYIL, vol. 56, 1985, at 208, 242-244; Christakis & MollardBannelier, supra note 87, at 113-120. 91 See, e.g., Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Resolution 2131(XX), para. 1-2. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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opposition forces that fight for their right to self-determination92. However, some objectives pursued by outside interventions pose no particular problems. For example, the lawfulness of interventions by invitation designed to restore or maintain law, domestic order and peace does not appear to be contested by the international community, as long as the intervention does not infringe the right to self-determination93. This kind of outside support for such purposes takes different forms. A foreign government may provide for financial assistance, logistical support, military equipment and training for the local armed forces or police. Foreign troops may also take part in the protection of key installations and buildings, joint border patrols, or even large scale joint military operations94. Outside interventions by invitation in order to maintain or restore law, order and peace take place in diverse contexts such as the repression of local protests and army mutinies, the fight against drug trafficking, as well as the fight against terrorism as shown below. 2. Recent State practice: from the Philippines to the Sahel In the context of the fight against terrorism, several military activities or operations have been conducted throughout the World, either by a coalition of States or by one State in particular in partnership with the host States. Among the most recent operations, can be cited Exercise Balikatan 02-1 in the Philippines, Operation Enduring Freedom in Afghanistan since probably mid-2000s, Operation Barkhane in the Sahel and the Multinational Joint Task Force against Boko Haram since 2014, the US-led Coalition in Iraq since 2014, and the US support mission and the NATO Operation Resolute Support in Afghanistan since 2015, as well as the Russian intervention in Syria since 2015 also. With the possible exception of Exercise Balikatan 02-1, whose justification seems a priori rather dubious, the other operations have been set up with the consent of the host State, a consent given through either a request from the host State or the conclusion of a more formal agreement. The purpose of the missions is mainly to support local forces in their fight against terrorists, and their modus operandi consist of combat operations (e.g. airstrikes) and/or non-combat activities (e.g. advising, training, equipping, or providing intelligence). The following paragraphs aim at underlining the main characteristics (i.e. consent and purpose) of each of the above-mentioned operations. In 2002, a US Joint Special Operations Task Force was deployed in the Philippines to support Operation Enduring Freedom launched after the 9/11. This deployment was conducted under Exercise Balikatan 02-1. The deployment of US military troops aimed at supporting the Philippine armed forces (AFP) in their fight against Islamist terrorist organizations apparently linked to al-Qaeda, namely the Abu Sayyaf Group and Jemaah Islamiyah. The US Task Force train and advise the armed forces of the country how to deny terrorist sanctuary, mobility and access to resources, as well as how to separate the terrorists from the population95. The Exercise is governed by special rules of engagement, in the sense that US troops have to play a subordinate role: “They take direction from AFP commanders, operate ‘by, through and with’ their Filipino counterparts, and use force only to defend 92 See the third and the fifth principle of the Friendly Relations Declaration. There is however an exception to that prohibition. As outlined by Christine Gray, “if there has been outside subversion against the government, then help to the government becomes permissible”. See Christine Gray, International Law and the Use of Force, 2e ed., Oxford, Oxford University Press, 2004, at 68. 93 See general debates preceding the adoption of Resolution 2625 (XXV), esp. UN Doc. A/AC 125/SR 57, Jul. 19, 1967. For the analysis of State practice, see in particular Corten, supra note 9, at 294-296. 94 Christakis & Mollard-Bannelier, supra note 87, at 125-126; Gray, supra note 92, at 71-72; Corten, supra note 9, at 294-296. 95 Thomas Lum, Ben Dolven, The Republic of the Philippines and U.S. Interests – 2014, Congressional Research Service, May 15, 2014, at 13-14. For an example of recent operation (resulting in the death of Zulkifli Abdhir), see David S. Cloud, Sunshine De Leon, ‘A heavy price paid for botched terrorist raid by Philippines and U.S.’, Los Angeles Times, Sept. 10, 2015, available at http://www.latimes.com/world/asia/la-fg-botched-terror-raid20150910-story.html.


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themselves or when fired upon.” 96 Balikatan 02-1 seems to be a pursuant of the Mutual Defense Treaty signed between the United States and the Philippines from as early as in 1951. Indeed, in Lim vs Macapagal-Arroyo, De Leon, JR., J. held: The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the Balikatan is the largest such training exercise directly supporting the MDTs objectives.97

We can, nevertheless, regret the lack of clear decision on the arguments of the petitioners who stated that the Philippines and the United States signed the mutual defense treaty (MDT) in 1951 to provide mutual military assistance in accordance with the constitutional processes of each country only in the case of an armed attack by an external aggressor, meaning a third country against one of them. By no stretch of the imagination can it be said that the Abu Sayyaf bandits in Basilan constitute an external armed force that has subject the Philippines to an armed external attack to warrant U.S. military assistance under the MDT of 195198.

Moving to another continent, France launched Operation Barkhane on August 1, 2014 “at the request of five countries of the Sahel and in close collaboration with them” 99 . The operation mobilizes more than three thousand troops whose mission it is to support G-5 Sahel troops (Chad, Mali, Niger, Burkina Faso and Mauritania) in their fight against terrorism, and to prevent the setting up of terrorist sanctuaries in the region100. Operation Barkhane reflects the will of France to establish a new military cooperation partnership with African countries, as it has been proposed at the Elysée Summit for Peace and Security in Africa in December 2013. The proposed partnership aims at “prioritizing advice, training, equipment and intelligence, in order to ensure that Africa’s armies have all the resources they need to combat these threats” posed by terrorists to African and European security101. In the Summit’s Final Declaration, the heads of State and Government agreed that “France will support […] efforts in the countries that so desire via capacity building projects for security and defence forces, cross-border cooperation, and development of the interoperability of African armed forces”102. For that, old bilateral cooperation and defense agreements between France and some African States have been revised.

96

Lum & Dolven, supra note 95, at 14. See also the Terms of Reference for Exercise Balikatan 02-1, as recalled in Lim vs Macapagal-Arroyo (Balikatan 02-1), Decision, Supreme Court of the Philippines, G.R. No. 151445, April 11, 2002, available at http://sc.judiciary.gov.ph/jurisprudence/2002/apr2002/151445.htm. 97 Id. (Lim vs Macapagal-Arroyo). 98 Id. See art. II and art. III of the MDT where the term ‘armed attack’ is used. 99 France, UN Doc. S/PV.7335 (2014). 100 For more information, see the French Minister of Defense’s website, in: www.defense.gouv.fr; see also Andrew McGregor, ‘Operation Barkhane: France’s New Military Approach to Counter-Terrorism in Africa’, TerrorismMonitor, vol. XII, issue 15, Jul. 25, 2014, at 3-4. Forces of Operation Barkhane are also rapid reaction forces authorized by the Security Council to intervene in support of MINUSMA (Mali) (see supra). 101 Address by the President of the French Republic for the opening of the Elysée Summit for Peace and Security in Africa, Dec. 7, 2013, available at http://www.elysee.fr/declarations/article/address-by-the-president-of-thefrench-republic-for-the-opening-of-the-elysee-summit-for-peace-and-security-in-africa/. 102 See Elysée Summit for Peace and Security in Africa - Final Declaration, Dec. 7, 2013, para. 9, available at http://www.elysee.fr/declarations/article/elysee-summit-for-peace-and-security-in-africa-final-declaration. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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Still in Africa, other countries are laboriously cooperating in the fight against Boko Haram103. In October 2014, member States of the Lake Chad Basin Commission (Cameroon, Chad, Niger, and Nigeria) and Benin decided to pledge troops to the Multinational Joint Task Force (MNJTF) to deal with Boko Haram 104 . Then, on January 29, 2015, the Peace and Security Council of the African Union authorized the deployment of the MNJTF to, notably, “conduct military operations to prevent the expansion of Boko Haram and activities of other terrorist groups, and eliminate their presence”105. In spite of the recommendations according to which the MNJTF contingents shall operate freely within the area of operation of the Force 106 , foreign interventions in domestic territories have been a major stumbling block during several months, as some countries have been very reluctant to authorize MNJTF foreign contingents to pursue insurgents too deep in their territories107. This problem seems to have been settled in late September 2015, when, finally, after long discussions “each country has granted the force a part of its territory”, as was affirmed by the then Cameroonian Defense Minister108. Concerning the situation in Afghanistan, we have seen that the US and the UK-led Coalition justified Operation Enduring Freedom, launched in October 2001, by the right of self-defense. We have also shown that that right could not have been invoked in casu as its conditions of invocation, at least, had not been fulfilled109. Therefore, as the right of selfdefense could not have been invoked, and the Security Council had never explicitly authorized the Coalition to use force in Afghanistan, Operation Enduring Freedom was unlawful since its launch. Having said that, a body of evidence would suggest that the legal status of the Operation could have changed later on. Indeed, it seems that in 2005-2006, if not before, the Afghan authorities would have consented to the presence of the Coalition in their territory. For example, on May 23, 2005, in a joint declaration on the US and Afghanistan strategic partnership, the US President Bush and the Afghan President Karzai declared that 103

It can also be mentioned that since 2007, the African Union has been authorizing the deployment of the African Union Mission in Somalia (AMISOM) (see, e.g., UN Doc. S/2007/34). Since its inception, the Mission has also been endorsed by the Security Council which has repeatedly authorized the Member States of the African Union to take all necessary measures to, inter alia, reduce the terrorist threat posed by Al-Shabaab and other terrorist groups, provide protection to the Government of Somalia, security for key infrastructure, training to the security forces with whom joint operations are conducted (see, e.g., Resolutions 1744 (2007), 2036 (2012), 2093 (2013), 2232 (2015)). It seems important to mention here that if the Mission and the foreign troops involved in Somalia are not authorized by the host country, it is a must for the African Union to obtain an authorization from the Security Council, given that Art. 53 of the UN Charter prevents regional organizations from acting unilaterally. On the contrary, if the mandate of the Mission and the forces involved are consented by the Government of Somalia, obtaining an authorization from the Security Council is not necessary. In that latter case, an endorsement from the Security Council is sought for various reasons such as getting financial and material support from the international community, international legitimacy, as well as making the viability of the Mission independent from any decisions the host country could take with regard to the wish of having foreign troops in its territory. 104 Lake Chad Basin Commission, Extraordinary Summit of Heads of State and Government of LCBC Member Countries and Republic of Benin, final communiqué, Niamey, Oct. 7, 2014. MNJTF was initially established in 1998 in order to combat transnational crime in the Lake Chad region. 105 Peace and Security Council, Communiqué, 484th Meeting at the Level of Heads of State and Government, Addis Ababa, Jan. 29, 2015 (AU Doc. PSC/AHG/COMM.2(CDLXXXIV)). 106 Peace and Security Council, Report of the Chairperson of the Commission on the implementation of communiqué PSC/AHG/COMM.2(CDLXXXIV) on the Boko Haram terrorist group and on other related international efforts, 489th Meeting, Mar. 3, 2015, Addis Ababa (AU Doc. PSC/PR/2.(CDLXXXIX)). 107 See, e.g., Lori-Anne Théroux-Bénoni, ‘A Regional Multinational Joint Task Force to Combat Boko Haram’, Institute for Security Studies, Feb. 10, 2015, available at https://www.issafrica.org/iss-today/the-fight-againstboko-haram-tangled-up-in-nigerian-and-regional-politics; Daniel Flynn, Bate Felix, ‘Nigeria stalls Chad, aims to beat Boko Haram before election’, Reuters, Mar. 3, 2015, available at http://www.reuters.com/article/2015/03/03/us-nigeria-violence-chad-insight-idUSKBN0LZ0DS20150303. 108 ‘Regional anti-Boko Haram taskforce ready for deployment’, World Bulletin, Sept. 8, 2015, available at http://www.worldbulletin.net/africa/164672/regional-anti-boko-haram-taskforce-ready-for-deployment. 109 See supra text accompanying footnotes 16-42. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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“[t]he U.S. and Coalition forces are to continue to have freedom of action required to conduct appropriate military [counter-terrorism] operations based on consultations and pre-agreed procedures”110. Other aspects of the mission of the Coalition included the organizing, training and sustaining of Afghan security forces, supporting border security initiatives, and assisting the Afghan government in its counter-narcotics program111. It is worth underlining again that the Afghan consent – as long as it is valid – has the effect of rendering Operation Enduring Freedom lawful from the moment the consent is given (e.g. 2006) and not ab initio (i.e. October 2001). The Afghan consent to the presence of foreign troops in the territory was not, however, of unlimited duration. Without additional agreement between the United States and Afghanistan, Coalition forces would have been asked to leave the country by the end of 2014. In fact, after two years of hard negotiations, and especially with the swearing-in of the new Afghan President Ashraf Ghani in September 2014, the United States succeeded in signing with Afghanistan a Security and Defence Cooperation Agreement (also known as the Bilateral Security Agreement (BSA))112. The agreement, which entered into force on January 1, 2015, allows American troops to remain in Afghanistan after 2014. The mission of US troops is mainly to assist the Afghan National Defense and Security Forces (ANDSF)113. Assistance includes advising, training, equipping, as well as operationally supporting the Afghan Forces by carrying out counterterrorism operations. In November 2014, President Obama agreed that US military leaders in Afghanistan would be authorized to approve combat operations in three sets of circumstances: in case of counterterrorism operations against al-Qaida and other transnational terrorist groups, in order to protect US forces engaged in training or other activities, and finally in cases where Afghan forces need assistance114. It must be emphasized that combat operations cannot be launched unilaterally. As laid down in Article 2(1) of the BSA: “Unless otherwise mutually agreed, United States forces shall not conduct combat operations in Afghanistan.”115 Article 2(4) of the BSA also provides that [t]he Parties agree to continue their close cooperation and coordination towards those ends [i.e. to defeat al-Qaida and its affiliates], […] without unilateral U.S. military counter-terrorism operations. U.S. military counter-terrorism operations are intended to complement and support ANDSF’s counter-terrorism operations.

In 2015, the American military has launched airstrikes against the Taliban forces and the Islamic State’s militants. For American officials, the bombing campaign of July 2015 against the Islamic State was justified as “part of a defensive policy to protect the coalition forces

110

Joint Declaration of the United States-Afghanistan Strategic Partnership, White House Press Release, Washington, May 23, 2005, available at http://2001-2009.state.gov/p/sca/rls/pr/2005/46628.htm. See also, Joint Declaration of an Enduring Relationship between the UK and Afghanistan, 10 Downing Street, London, Jul. 19, 2005, available at http://webarchive.nationalarchives.gov.uk/20050808190713/http://pm.gov.uk/output/Page7951.asp. 111 Id. (US-Afgh. Joint Decl.). 112 Security and Defense Cooperation Agreement between the Islamic Republic of Afghanistan and the United States of America, Sept. 30, 2014, available at http://www.embassyofafghanistan.org/article/security-anddefense-cooperation-agreement-between-the-united-states-of-america-and-the-isla. Sudarsan Raghavan, Karen De Young, ‘U.S. and Afghanistan sign vital, long-delayed security pact’, The Washington Post, Sept. 30, 2014, available at http://www.washingtonpost.com/world/us-afghanistan-sign-security-pact-to-allow-american-forcesto-remain-in-country/2014/09/30/48f555ce-4879-11e4-a046-120a8a855cca_story.html. 113 Id. See Art. 2 of the BSA. 114 Karen De Young, Missy Ryan, ‘Afghan mission for U.S. to continue under new authorities’, The Washington Post, Nov. 22, 2014, available at http://www.washingtonpost.com/world/national-security/white-house-givescommanders-broader-authority-to-support-afghan-troops/2014/11/22/8741f2fc-724e-11e4-ad123734c461eab6_story.html. 115 Emphasized added. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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from harm”, while it was justified by Afghan officials as being air support that “came partly at the urging of the Afghan domestic intelligence service”116. With regard to ISAF in Afghanistan, it has been mentioned supra117 that in 2013 the Security Council extended – and this for the last time – the mandate of the International Force until December 31, 2014 118 . In order to be able to stay in the Afghan territory after that deadline without violating the Afghan sovereignty, NATO had to reach an agreement with the host country. This was achieved in September 2014, when NATO and Afghanistan signed a Status of Forces Agreement (SOFA) 119 . This bilateral agreement provides the legal framework that governs the new NATO mission in Afghanistan – called Operation Resolute Support – that was launched on January 1, 2015120. The international community insists on the fact that the new mission is essentially a non-combat operation121. According to Article 2(2) of the SOFA, Parties “agree to the presence of NATO Forces in Afghanistan for the purpose of the post-2014 non-combat training, advising and assistance mission, as well as for the purpose of all other mutually agreed NATO-led activities”. Therefore, if, in the future, NATO decided to launch or be involved in combat operations against terrorist groups in the country, a new consent by Afghanistan or an authorization from the Security Council would need to be found. Military operations against ISIL are not only conducted in Syria, or more recently in Afghanistan, but also in Iraq122. Indeed, on August 8, 2014, the United States commenced targeted airstrikes operations “necessary to protect American personnel in Iraq by stopping the current advance on Erbil by [ISIL] and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there” 123 . A few months later, in response to the appeal of President Obama to form a coalition against the terrorists, other countries (e.g. Australia, the United Kingdom, France, Belgium, and the Netherlands) also began bombarding jihadist positions in Iraq124. Alongside airstrikes, some countries (e.g. the United States, Germany, France, Great Britain and Italy) are providing military equipment, intelligence or training, to the Iraqi forces and/or to the Kurds in Northern Iraq who fight

116

Joseph Goldstein, ‘U.S. Steps Up Airstrikes in Aghanistan, Even Targeting ISIS’, The New York Times, Jul. 15, 2015, available at http://www.nytimes.com/2015/07/16/world/asia/afghanistan-us-steps-airstrikesisis.html?_r=0. 117 See text accompanying footnote 71. 118 See Resolution 2120 (2013). 119 Agreement between the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan on the Status of NATO Forces and NATO Personnel Conducting Mutually Agreed NATO-Led Activities in Afghanistan, Sept. 30, 2014, Art 2(2), available at http://mfa.gov.af/Content/files/SOFA%20ENGLISH.pdf. 120 In Resolution 2189 (2014), the Security Council has noted that “the bilateral agreement between NATO and Afghanistan and the invitation of the Government of Afghanistan to NATO to establish Resolute Support Mission provide a sound legal basis for Resolute Support Mission”. 121 See, e.g., the terms used by the Security Council in Resolution 2189 (2014), para. 1. 122 Joint military activities against ISIL in Libya could also possibly been contemplated in the future. On Aug. 18, 2015, the Libyan internationally recognized government based in Tobruk appealed the Arab League for military assistance against the Islamic State militants who control the city of Surt. The regional organization said it would “ask member countries to help support Libya in its war against terrorism” and “help it with all means necessary to maintain security”. See David D. Kirkpatrick, ‘Libya asks Arab League Countries to help battle Islamic State’, The New York Times, Aug. 18, 2015, available at http://www.nytimes.com/2015/08/19/world/middleeast/libya-asks-arab-league-countries-to-help-battle-islamicstate.html?smprod=nytcore-ipad&smid=nytcore-ipad-share&_r=1. 123 President Obama, Letter from the President to the Speaker of the House of Representatives and the President pro tempore of the Senate, Aug. 8, 2014, available at https://www.whitehouse.gov/the-pressoffice/2014/08/08/letter-president-war-powers-resolution-regarding-iraq. 124 Justine Drennan, ‘Who Has Contributed the Most in the Coalition Against the Islamic State?’, Foreign Policy, Oct. 15, 2014, available at http://foreignpolicy.com/2014/11/12/who-has-contributed-what-in-thecoalition-against-the-islamic-state/. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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against ISIL125. Iran is also involved in the fight in Iraq – Teheran even started providing assistance to Iraq before August 2014 – by providing training and funding to Iraqi Shia militia groups who fight against ISIL126. But as some issues between the United States and Iran are still not settled, the White House officially insists on the fact that, even though both countries are tactical partners in the sense that both are interested in defeating ISIL, Iran is not a member of the Coalition127. Members of the Coalition justify airstrikes and support by the consent given by the Iraqi government 128 . In casu, consent given by the Iraq’s central government to the airstrikes, to the support provided to Kurds and to Shia militias is essential. Without such consent, airstrikes against ISIL would constitute a violation of the principle prohibiting the use of force, while support provided to Kurdish Peshmerga forces and Shia militias would be a minima a violation of the Iraqi sovereignty. The list of joint military operations against terrorism has recently been extended when, on September 30, 2015, Russian aircraft started striking opposition groups fighting against the Syrian government129. According to the Syrian government, Russian airstrikes conducted in cooperation with the Syrian air forces followed a “request written by President Bashar alAssad to his Russian counterpart Vladimir Putin to confront terrorism”130. In a declaration, President Putin affirmed that the air campaign “will be performed in the very strictly set frames”. More exactly, he stated that Russia “will support the Syrian army only in its legitimate fight specifically against terrorist groups”, and “such support will be limited in time, as long as the Syrian army is on the offensive”131 . In reality, Russia is not only fighting against ISIL but also against other national groups opposed to the Syrian regime. The Russian intervention is to be considered as lawful provided its operations aim at helping the Syrian

125

See, e.g., Statement by the President on ISIL, available at http://www.whitehouse.gov/the-pressoffice/2014/09/10/remarks-president-barack-obama-address-nation; Kate Brannen, ‘Teheran’s Boots on the Gound’, Foreign Policy, Sept. 10, 2014, available at http://complex.foreignpolicy.com/posts/2014/09/10/tehrans_boots_on_the_ground_iraq_syria_islamic_state_isis _iran; EurActive.de, ‘Merkel defends decision to arm Iraqi Kurds with German weapons’, Sept. 2, 2014, available at http://www.euractiv.com/sections/global-europe/merkel-defends-decision-arm-iraqi-kurds-germanweapons-308148. 126 Josh Rogin, Eli Lake, ‘Iran Forces and U.S. Share a Base in Iraq’, Bloomberg View, Jun. 22, 2015, available at http://www.bloombergview.com/articles/2015-06-22/iran-s-forces-and-u-s-share-a-base-in-iraq. 127 Akbar Shahid Ahmed, ‘Iran Bombing Islamic State In Iraq, U.S. Official Confirms’, The Huffington Post, Dec. 1, 2014, available at http://www.huffingtonpost.com/2014/12/01/us-iran-iraq_n_6251894.html. In the field, however, cooperation is sometimes explicit, see Rogin & Lake, supra note 126. 128 Ahmed, id.; Karen De Young, ‘Obama approves deployment of 350 more troops to Iraq’, The Washington Post, Sept. 2, 2014, available at http://www.washingtonpost.com/world/national-security/obama-approvesdeployment-of-350-more-troops-to-iraq/2014/09/02/b05aa99a-3306-11e4-a723-fa3895a25d02_story.html; Christopher Paul, Colin P. Clarke, ‘A broad approach to countering the Islamic State’, The Washington Post, Sept. 2, 2014, available at http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/09/02/a-broadapproach-to-countering-the-islamicstate/?utm_source=Sailthru&utm_medium=email&utm_term=%2AMideast%20Brief&utm_campaign=2014_Th e%20Middle%20East%20Daily_9.3.14. With regard to the request made by the Iraqi government, see letter dated Jun. 25, 2014 from the Permanent Representative of Iraq to the United Nations addressed to the SecretaryGeneral, UN Doc. S/2014/440; letter dated Sept. 20, 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691. 129 It is also important to recall that Iranian forces are present in Syria to support and defend the regime of President Assad since at least 2012. See Jonathan S. Landay, ‘Deaths of Iranian generals in Syria a sign of commitment to Assad’, McClatchyDC, Oct. 23, 2015, available at http://www.mcclatchydc.com/news/nationworld/world/middle-east/article41232399.html. 130 Basma Qaddour, ‘Russian warplanes in cooperation with Syrian air forces bomb ISIS sites in central region’, The Syria Times, Sept. 30, 2015, available at http://syriatimes.sy/index.php/don-t-miss/19860-russianwarplanes-in-cooperation-with-syrian-air-forces-bomb-isis-sites-in-central-region. 131 Helene Cooper, Michael R. Gordon, Neil MacFarquhar, ‘Russians Strike Targets in Syria, but Not ISIS Areas’, The New York Times, Sept. 30, 2015, available at http://www.nytimes.com/2015/10/01/world/europe/russia-airstrikes-syria.html. Eric Corthay – 5th AsianSIL Biennial Conference 2015

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regime restore law, order and peace, and not combating national opposition groups if these groups represent in law a people fighting for its right to self-determination. Conclusion For the last decades, joint military activities – combat or non-combat operations – have multiplied around the World. In the future, their number is likely to increase, with for example Libya calling the international community for military assistance in their fight against the Islamic State. As we have seen above, countries involved in military activities against terrorist actors do not operate in no-law-lands. On the contrary, their operations are subject to the rules of international law, and notably the jus contra bellum and the regime of intervention by invitation, not to mention the human rights and the international humanitarian law. It is worth noting that there is no lex specialis that would merely apply to the war against terrorism. Terrorism is a universal and complex scourge that poses a serious threat to internal and international peace and security. Today, many African, Middle Eastern, West Asian, and South East Asian countries are in turmoil because of terrorism. This turmoil’s knock-on effects – like refugee crisis, rising nationalism, and State’s abuse – grow quickly and affect other regions of the World. Prompt actions are therefore required. The international community has wisely recognized and stressed that “terrorism can only be defeated by a sustained and comprehensive approach involving the active participation and collaboration of all States, and international and regional organizations to impede, impair, isolate and incapacitate the terrorist threat”132. Alongside the carrying out of military activities – whose relevance and efficiency might be questioned sometimes – necessary collective and multidimensional actions include, but are not limited to, the full implementation of the Sustainable Development Goals, the establishment of the rule of law, the promotion of tolerance and dialogue among civilizations, the muzzling of ideologues who promote hatred, information sharing, as well as judicial cooperation133. These vital and indispensable measures are a huge undertaking in that they require a sustainable effort over many years, an effort that requires to be supported by political will and courage. Last update: Dec. 2, 2015

132

See, e.g., Resolution 2199 (2015). For other ideas of relevant actions, see notably the report of the Secretary General, Uniting against terrorism: recommendations for a global counter-terrorism strategy, Apr. 27, 2006 (UN Doc. A/60/825).

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