The Federal Government continues to justify the fight against ISIL in Syria on grounds of collective self-defence

Published: 21 October 2019  Author: Benjamin Nussberger  DOI: 10.17176/20220113-165019-0

On 18 September 2019, the Federal Government requested the German Parliament to extend the mandate to continue to deploy German armed forces to fight the so called “Islamic State” (ISIL). The Government’s request sets out in detail the legal basis for the military operations.

The legal considerations did not substantially depart from the Federal Government’s previous justifications. The use of armed forces in Iraq was still based on the “Iraqi Government’s continuously valid request and continued consent.” For the operations in Syria, the Federal Government continued to rely on collective self-defence on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

Since March 2019, however, the international coalition has achieved its primary goal: to end ISIL’s territorial control. Operational goals have now shifted “to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions.”

With the recent request, the Federal Government adjusts and updates its legal argument accordingly. In short, irrespective of the developments on the battlefield, the Government views the right to collective self-defence to still cover the operations.

The German military contribution

The German military contribution to the global coalition’s fight has not changed. Essentially, German armed forces continue to provide reconnaissance and aerial refuelling. This may take place “over the territory of neighbouring States whose governments have issued permission, and in Syrian air space.” In addition, German armed forces participate in NATO AWACS-flights in Iraqi, NATO or international airspace.

Notably, the German armed forces’ actions remain limited to providing assistance to military operations of the international coalition. The Federal Government consistently refers to German “assistance” as being distinct from the force used by other members of the international coalition against ISIL. The Government expressly emphasizes: “German armed forces do not participate in the international coalition’s airstrikes themselves.” At the same time, German armed forces are authorized to use military force to “enforce their tasks.”

In light of the nature of its contributions, the Federal Government remains however ambiguous what it is that the Government views to be justified: is it the German support itself that is and (needs to be) justified, or is it the supported use of force by the international coalition? Does the Federal Government invoke collective self-defence for its own conduct, or does it argue that the coalition’s military action to which it provides assistance is conducted lawfully and in accordance with Article 51 of the Charter of the United Nations? The Government’s language is open to question. The prima facie wrongful act that in view of the German government is justified hence remains unspecified.

 Self-Defence against a continuing armed attack by ISIL in Syria

Irrespective of this question, for the German Government, there is still a situation allowing for self-defence:

“Despite ISIL’s territorial defeat, the right to self-defence pursuant Article 51 UN Charter continues to apply.”

The Federal Government does not refer here to any form of “anticipatory” self-defence responding to an imminent and direct threat of an armed attack. Instead, a right to – what one may want to call “sustainable” – self-defence against a continued armed attack by ISIL stands at the centre of its legal argument. Such a right may be exercised even if at the moment there is no attack in progress. A threat of renewed attacks by ISIL seems sufficient – as long as ISIL is not sustainably defeated, and accordingly renewed terror attacks may be on the rise. On that basis, the Federal Government assumes a “continued armed attack by ISIL” that allows to resort to armed force to the extent it remains necessary.

The Federal Government advances several considerations to substantiate the existence of a “continued armed attack.” Most notably, in the Government’s view, ISIL’s loss of territorial control does not preclude the existence of a continued armed attack. Here the Federal Government departs from its previous heavy reliance on ISIL’s territorial control in Syria.

In 2015, the Federal Government repeatedly stressed that ISIL is controlling territories in Iraq and Syria. In its letter to the Security Council, Germany stated:

“ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control.”

In 2016, the Federal Government stated, again having ISIL’s territorial basis in mind:

“The attacks in France, Belgium, Turkey, but also in Germany have shown that there is still an armed attack originating from the terror organization ISIL, despite the successful action taken by the international coalition against ISIL in particular in Iraq and Syria.”

In 2017, the Federal Government held:

“Even though ISIL has lost a substantial amount of the territory in Iraq and Syria previously under its control, the terror organization has not been completely and permanently driven out of the areas.”

In 2019, on the other hand, the Federal Government expressly acknowledged the “the end of ISIL’s coherent territorial control in Iraq and Syria.” Other factors now seem to become relevant or sufficient for the exercise of the right to self-defence:

  • “ISIL could consolidate in its core area of operation in Syria and Iraq, and could build up effective underground structures, having considerably more than 10.000 available fighters and active supporters at the moment.
  • Important leadership positions are being filled again; recruitment and propaganda were adjusted, a “virtual caliphate” was created, and financing sources were re-established. The long-term goal is to re-establish a territorial caliphate.
  • For the year to date, the number of terrorist attacks by ISIL in Iraq and Syria has increased, compared to the previous year. With the successful consolidation in the underground, a move to increased planning of attacks against targets in the West is becoming more likely.”

In addition, the Federal Government stated:

“The international coalition against ISIL has successfully ended ISIL’s coherent territorial control over areas in Iraq and Syria in March 2019. Still, the armed attack by ISIL continues. [ISIL] still raises a claim to the formerly controlled territories and beyond, and focuses its actions on regaining strength in areas in which territorial control by security forces is not reliably guaranteed, exerting influence, and expanding its network in the underground. The right to self-defence pursuant to Article 51 of the UN Charter continues to apply despite the military achievements against ISIL. The continuing armed attack against ISIL requires to continue its fight with military means within the scope of self-defence. ISIL continues to possess resources, military means and the will to exercise temporal and spatial limited territorial control. ISIL continues to be capable and willing to commit attacks in Syria, Iraq and Europe and beyond. In light of the freeing of the last connected areas from the ISIL-terror regime, the threat potential going beyond the region has significantly increased, since ISIL attempts to demonstrate as serious actor capacity to act also beyond Syria and Iraq.”

Accordingly, the military operation’s (new) goal to “secure and expand progress in stabilization, achieved so far, […] and to prevent ISIL regaining strength” is deemed to be still covered by the right to self-defence. “Syria and Iraq are [viewed to be] at a crossroad” and in a “decisive phase of consolidation.” This also justifies that “[t]he fight against ISIL has changed with a shift of emphasis on assistance to locally restricted operations to detect underground structures and the containment of retreat areas […].” Thus, the German government argues for a right to exercise self-defence against a continued armed attack in a “sustainable manner.”

 Military operations in self-defence in Syria against a continuing armed attack by ISIL

The Federal Government touches only in passing upon the contentious question of why Syria should tolerate acts of self-defence in response to ISIL’s “continued armed attack”. On this matter, the German approach has been ambiguous. Germany’s letter to the UN Security Council in 2015 did not explicitly mention the “unable and/or unwilling” doctrine. Instead it indicated that it is decisive that

“ISIL has occupied a certain part of Syrian territory over which the [Syrian] Government […] does not at this time exercise effective control.”

In its previous formal requests to the German Parliament, the Federal Government however consistently used the “unable/unwilling”-language:

“In this context, military measures are also executed on Syrian territory, as the Syrian government is not able and/or not willing to prevent attacks from ISIL that originate in its territory.”

In its September 2019 request to Parliament, the Federal Government slightly changed its language. It stated:

“Beginning in September 2014, several allied States (inter alia the United States, Australia, the United Kingdom, France) have taken the attacks committed by ISIL originating from Syrian State territory as reason to provide military assistance to Iraq – on its request – in exercise of the right of collective self-defence in terms of Article 51 of the UN Charter. In this context, military measures are executed on Syrian territory, as the Syrian government has been and still is unable to prevent all attacks from ISIL that originate in its territory.”

This change of language may indicate that Germany has subtly moved towards embracing a pure “unable (or unwilling) doctrine”. This is all the more so in light of the Federal Government’s acknowledgment that since March 2019 ISIL no longer “occupies” territory in Syria, and that Syria is regaining control. Arguably this acknowledgment would deprive the approach alluded to in Germany’s letter to the UN Security Council of its factual basis. Last but not least, the Federal Government’s factual narrative, that “the security situation in Syria is observably deteriorating compared to the situation in 2018,” seems to be tailored to prove Syria’s inability.

The Federal Government’s most recent request does little to specify the modalities of how self-defence may be carried out in case of a State’s inability to prevent armed attacks by non-State actors. Three aspects, however, are worth noting.

First, the acknowledgement of ISIL’s loss of territorial control may indicate that the Federal Government decouples a State’s inability to prevent an armed attack from a State’s loss of territorial control. Second, the omission of the willingness criteria may suggest that for the Federal Government another State’s (de facto?) inability to prevent armed attacks may suffice to exercise self-defence – irrespective of that State’s willingness. Third, a military response in collective self-defence must be strictly necessary and proportionate. In this light, the Government explained:

“The sustainable implementation of the measures taken and the effect of civil engagement towards a permanent stabilization require a minimum of security. As such, the fight against ISIL with military means remains necessary.”

“ISIL’s organization in the underground in Iraq and Syria is in different stages of development, both of which are mutually dependent. A long-term stabilization in this fragile context is only possible, if ISIL is fought in Iraq and at the same time in Syria. Repelling ISIL from Iraq without fighting them also in Northeast Syria would lead to a prompt reconsolidation of ISIL in the liberated areas. Such a ‘spill-over effect’ must be prevented.”

“The security situation in Syria is observably deteriorating compared to the situation in 2018. ISIL’s underground network increasingly expands – starting from the Northeast. Every month ISIL commits on average 100 attacks. In particular, the attacks aim to destabilize the situation on the ground and to fight the Syrian Democratic Forces, as well as members of the international coalition against ISIL.”

 The right to self-defence “in connection with” Security Council resolutions

In its request, the Federal Government continued to suggest that Security Council resolutions are an important factor for the legality of Germany’s measures under collective self-defence. After recalling resolution 2249 (2015) in detail, the Government stated:

“The operation against ISIL is carried out in exercise of the right to collective self-defence pursuant Article 51 of the UN Charter and is embraced by Security Council resolution 2249 (2015), which was at last affirmed by resolution 2449 (2018) of 13 December 2018 […].”

By resolution 2449 (2018), the Security Council “express[ed] its grave concern that areas remain under [ISIL’s] control”, reaffirm[ed] its resolve to address all aspects of the threat posed by ISIL,” and “call[ed] for the full implementation” of, inter alia, resolution 2249 (2015).

The Federal Government acknowledges that those resolutions stop short of an authorization of the use of force. Still, it attributed to the resolutions at least some “endorsing” effect for its understanding of the facts on the ground, and for the application of the right to self-defence in the present situation. The legal value of such an argument may be debated. At the present moment, its application is however controversial at best. Both resolutions were particularly concerned with and based on ISIL’s territorial control – which has ended by now.

 A fine line between a sustainable and eternal self-defence

Military operations must be justified at all times. The prerequisites for self-defence must be present throughout the entire operation, for each and every use of force, even more so when defensive military operations last for four years. In this respect, it is to be welcomed that the Federal Government adjusted its justification to the changing circumstances on the ground – at least at the national level. Likewise, it is positive to note that the Federal Government engaged with the intertwined questions of the duration of a terrorist armed attack and the temporal limits of self-defence. With its argument of a “continuing armed attack” and its claim to “sustainable self-defence”, the Federal Government offered a solution to those two questions. Whether this solution has opened the floodgate to perpetual armed attacks and to an eternal right to self-defence against terrorists, in particular in situations where States are de facto unable to prevent those attacks, remains to be seen. Departing from the territorial control criteria, Germany in any event walks that fine line.

Category: Use of force

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Author

  • Benjamin Nussberger (LL.M. Columbia) is a doctoral candidate and research fellow at the University of Cologne. He is also editor at the Völkerrechtsblog and a regional coordinator for the digest of State practice for the Journal on the Use of Force and International Law.

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