A legal analysis of UN Security Council resolution 2249
February 27, 2016 Sherif Ahmed Elgebeily Leave a comment
On Friday 20th November, the United Nations Security Council adopted resolution 2249 calling on UN members to take "all necessary measures" in redoubling and coordinating the prevention and suppression of the Islamic State in Iraq and Syria. Some may long to interpret this resolution as a green light for all-out war; nonetheless, this is one thing that it certainly is not. So what is the purpose of the resolution? And what could explain such ambiguity in the text?
On the surface, the terminology used is almost identical to resolution 1973 which authorised NATO intervention in Libya in 2011: 'all necessary measures' rather than 'all necessary means'. Academics with prior knowledge of Council terminology will easily pierce the legalese veil to understand this to mean use of force; in turn, the use of force is authorised under article 42 of the UN Charter, which falls under Chapter VII of the UN Charter. Herein lies the key distinction: the missing reference in resolution 2249 to Chapter VII of the UN Charter, which grants the requisite legal authority to the use of force. From a purist's approach, without both a determination of the threat to the peace – article 39 of the UN Charter – and an explicit reference to Chapter VII, military intervention would be illegal.
Yet the resolution is still valuable, albeit in a more surreptitious and indirect way. The legal opacity of the resolution is also extremely telling of the politics of the Council and the concessions that are necessary for the rapid adoption of some resolutions. Resolution 2249 is a microcosm of the manner in which Council decision-making unfolds.
The fact that it was not adopted under Chapter VII is, of course, notable and suggests two key points: firstly, there was a clear compromise on the wording and mandate granted to states in order for both Russia and China to permit its passing. Both nations have jointly blocked the adoption of previous Chapter VII resolutions on Syria on four occasions since 2011 by means of their veto powers and, despite the high emotional toll of recent events, it is likely that a blanket mandate for military action in Syria would not have passed.
Almost certainly, the inclusion of explicit references to international, refugee, humanitarian and human rights law were included following Sino-Russian criticism of the NATO campaign in Libya. Resolution 2249 rules out the possibility of regime change in Syria through its explicit preambular reference to the Geneva Communiqué; it further elaborates on a need for accountability of intervening states and sets definitive legal parameters; and it advocates a better respect for humanitarian and human rights law than was shown in Libya, where collateral damage was heavily criticised by international human rights organisations. It also serves to legitimise the recent unremitting bombings of Islamic State conducted by Russia and France.
Secondly, the resolution also appeases the other permanent Council members – USA, UK, and France – who have been pushing for more strongly worded resolutions for years that could act as the basis for additional or extended strikes in Syria and Iraq. Whilst the resolution does not grant the authority for international military intervention per se, it is a step in the right direction. In the UK, Prime Minister David Cameron, for example, has already begun to leverage this evidence of support and legitimacy into political collateral for another parliamentary vote on UK intervention in Syria, which failed in 2013.
Resolution 2249 treads a thin but solid middle ground between the two permanent Council member camps and in this sense is a testament to the verbal dexterity of UN resolution drafters. Alone, the resolution does not permit much that was not already permissible; that is to say, the case must still be made by states that their actions are legitimate under UN Charter article 51 on the right to self-defence. The phrasing of the actions called for is key: "redoubling and coordinating" means pushing harder on existing efforts and doing so in a more united fashion. This has been exemplified by recent agreements between the US and Russia on their sorties, as well as recent news of the expansion of the campaign against Islamic State.
The resolution may not be the blanket call to arms that Libya was – which is an improvement on the part of the Council along the lines of its shift towards targeted sanctions at the turn of the century – but it does show Council support for States, in accordance with their own domestic legislation, taking further military steps to eradicate Islamic State. It also marks a necessary shift in the approach of the Council to maintaining the international peace: one where principles of international law, humanitarian law, and human rights law set the parameters of an appropriate response.
Posted in: Current Affairs, Human Rights, War Filed under: ISIL, Isis, Islamic State in Iraq and Syria, Libya, United Nations, United Nations Security Council
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