Interpreting Security Council resolution 2401 (2018)

Published: 07 March 2018 Author: Stefan Talmon

During the Syrian civil war, Syrian government forces launched Operation “Damascus Steel” on 18 February 2018 in a bid to recapture eastern Ghouta, a rebel-held enclave located just east of the Syrian capital Damascus. The area, which had been besieged by the Syrian Government since 2013, was home to about 400,000 people. Within the first few days of the opening bombardment phase, more than 400 civilians were killed, the highest death-toll in the Syrian conflict since 2013. Heavy artillery shelling and large-scale air raids targeted civilian homes and hospitals in an effort to force the rebels controlling the area to surrender. The German Government referred to the events in eastern Ghouta as a “massacre”. The global outcry over the situation in eastern Ghouta led the United Nations Security Council, on 24 February 2018, to adopt unanimously resolution 2401 (2018), which read in the relevant part as follows:

“The Security Council, […]

Determining that the devastating humanitarian situation in Syria continues to constitute a threat to peace and security in the region,

Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions,

  1. Demands that all parties cease hostilities without delay, and engage immediately to ensure full and comprehensive implementation of this demand by all parties, for a durable humanitarian pause for at least 30 consecutive days throughout Syria, to enable the safe, unimpeded and sustained delivery of humanitarian aid and services and medical evacuations of the critically sick and wounded, in accordance with applicable international law;
  2. Affirms that the cessation of hostilities shall not apply to military operations against the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), Al Qaeda and Al Nusra Front (ANF), and all other individuals, groups, undertakings and entities associated with Al Qaeda or ISIL, and other terrorist groups, as designated by the Security Council; […].”

The Security Council addressed its demand for a 30-day ceasefire to “all parties” to the conflict in Syria. This raised the question of whether the Council’s ceasefire demand also applied to the Turkish military operations in northern Syria. On 20 January 2018, Turkey had launched a military operation in Syria’s Afrin region against what it called the “separatist terror organisations”, the Kurdish Democratic Union Party (PYD) and its military wing, the People’s Protection Units (YPG), in order to “purge terrorism from [its] southern borders.”

Turkey took the position that Security Council resolution 2401 (2018) did not affect its operation in Afrin. On 28 February 2018, the spokesperson of the Turkish Ministry of Foreign Affairs issued the following statement:

“The focus of the UN Security Council Resolution 2401 is the cessation of the regime’s attacks that have caused the slaughter of hundreds of civilians within a week and the destruction of civilian facilities such as hospitals and schools as well as providing humanitarian access to the people condemned to starvation by the regime’s siege policy.

In response to the worsening humanitarian situation in Syria, particularly in Eastern Ghouta, the resolution demands the cessation of hostilities without delay and calls for a humanitarian ceasefire to become effective at least for 30 days in order to allow access to emergency humanitarian aid and medical evacuations.

In the resolution, Afrin is not cited among the areas where the humanitarian situation is considered to be alarming. This is due to the fact that what is occurring in Afrin is not a conflict which does not differentiate between civilians and terrorists as meant by the resolution, but a combat against terrorist organizations which target the integrity of Syria and the national security of Turkey.

Turkey is not a party to the conflicts in Syria. Turkey exercises its right to self-defense on the basis of Article 51 of the UN Charter through Operation Olive Branch carried out in Afrin. […].”

This view was not shared by the German Government. Asked to assess the situation in and around Afrin and whether the Turkish army honoured the ceasefire, the spokesperson of the Federal Foreign Office declared:

“In its resolution, the United Nations Security Council indeed addresses all parties to the Syrian conflict and demands the implementation of a minimum 30-day ceasefire […].

The Security Council resolution refers to all of Syria and calls for a 30-day ceasefire throughout Syria; that is correct. […] We basically see in the area of Afrin too that fighting continues.”

In response to the question of whether the Federal Government urged Turkey to abide by the United Nations resolution, the spokesperson declared that the State Secretary of the Federal Foreign Office had spoken to the Turkish Ministry of Foreign Affairs and raised the Security Council resolution and presented the German understanding of the resolution.

German Foreign Minister Sigmar Gabriel reiterated the German position on resolution 2401 (2018) during a meeting with his Turkish counterpart in Berlin on 6 March 2018. At a press conference after the meeting, Foreign Minister Gabriel said:

“The United Nations has called for a ceasefire for Syria, which is not being respected, not in East Ghouta and in Afrin there is also still fighting going on. We want to hear what our Turkish colleagues have to say about this. As the German Federal Government we are very much in favour of arriving at a ceasefire everywhere in Syria.”

Germany joined permanent Security Council members France and the United States which had earlier publicly taken the view that the Kurdish enclave of Afrin fell within the scope of resolution 2401 (2018). While the resolution was clearly triggered by events in eastern Ghouta, its territorial scope was not limited to that area. This becomes clear from the wording of the resolution which speaks of a ceasefire “throughout Syria”. The ceasefire thus was to apply across the entire country. This was also the understanding of the representative of Syria in the Security Council who stated: “I take it that we all understand that paragraph 1 of resolution 2401 (2018) also applies to the aggression of Turkish forces in Afrin”. The resolution was also addressed to “all parties” to the conflict in Syria, not just to the parties involved in the fighting in eastern Ghouta.

Turkey could not rely on the exception to the ceasefire in paragraph 2 of resolution 2401 (2018). Military operations directed against the Islamic State in Iraq and the Levant, Al-Qaida, the Al-Nusra Front and other terrorist groups designated by the Security Council were exempt from the ceasefire. The PYD/YPG, the targets of the Turkish military operation in Afrin, were neither named in the resolution, nor designated as terrorist groups by the Security Council.

While Germany did not state outright that Turkey was in non-compliance with its obligations under resolution 2401 (2018), the spokesperson of the Federal Foreign Office left no doubt that this was the German position. Germany, for political reasons, had called for a cessation of hostilities in Afrin right from the start of the Turkish military operation. With the adoption of resolution 2401 (2018) it now also had a legal argument to back up that call.

Categories: United Nations, armed conflict and international humanitarian law

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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