Published: 29 June 2020 Author: Benjamin Nussberger
Germany has been participating in Operation Inherent Resolve of the Global Coalition against the terrorist organisation Islamic State (Daesh, IS or ISIS) since 2015, providing, inter alia, support in the form of reconnaissance flights and air‑to‑air refuelling over Syria. On 25 March 2020, the Federal Parliament acceded to the Government’s request to amend the mandate of the operation. The deployment of German Tornado aircraft for airborne reconnaissance flights over Syria was terminated with effect from 31 March 2020. This task was taken over by Italy. Germany was to provide ground-based air surveillance instead. The mandate for air-to-air refuelling, on the other hand, was set to expire on 31 March 2020, but was extended until 31 October 2020 because no other State came forward to take over from Germany. In addition, German armed forces were now permitted to provide air transportation to the anti-IS coalition, international organisations, allies and partners. In contrast to the air-to-air refuelling in Syrian air space, the other acts of assistance were confined to the territories of EU and NATO States as well as Iraq, Jordan and neighbouring countries which consented to the presence of German armed forces.
It is noteworthy that, in its request to the Federal Parliament, the Federal Government once again set out in detail the legal basis of the resort to armed force in Syria and Iraq, despite the fact that its own contribution to Operation Inherent Resolve was limited to acts of assistance to the use of force by other coalition members. The Federal Government remained true to itself when it (once more) refrained from specifying whether it was justifying its own contribution to the use of armed force or whether it was bolstering the anti-IS coalition’s justification. Using general language, the Federal Government stated:
“This ongoing armed attack by IS requires its suppression by the States of the international anti-IS coalition based on the right to self-defence under Article 51 of the United Nations Charter.”
The Federal Government also remained true to its approach of continuously updating and adjusting the justification of the use of force in light of the actual developments on the ground. While the amended mandate remained silent on the unable/unwilling doctrine, it is noteworthy for two other reasons.
First, Germany continued to argue that there is an “ongoing armed attack by IS”. The Federal Government claimed that “despite great progress having been made in the fight against IS, IS is not defeated.” Following a virtual meeting of the Global Coalition to Defeat Daesh/ISIS Small Group on 4 June 2020, Foreign Minister Heiko Maas stated:
“The so-called Islamic State still poses a serious threat in Iraq and Syria. Our joint international efforts to fight this terrorist organisation therefore remain important and should absolutely be maintained.”
Second, the Federal Government affirmed its earlier view that, for the existence of an ongoing armed attack by IS, it was not necessary that the terrorist organisation exercised territorial control in Syria or Iraq. The Federal Government declared:
“While Daesh/ISIS no longer controls territory and nearly eight million people have been freed from its control in Iraq and Syria, the threat remains and thus calls for stronger vigilance and coordinated action.”
In its request to the Parliament, the Federal Government went beyond its 2019 justification of the use of force, which was based on the elusive concept of IS’ continuing threat potential and its consolidation in the underground. The Federal Government sharpened its 2019 argument by pointing to IS’ continuing activities in Syria and the fact that the organisation was benefiting from “the development of the situation in Syria”. More importantly, the Federal Government noted that IS “continues its efforts to regain strength in Iraq”. While this criterion alone may seem rather vague, the Federal Government substantiated this criterion by pointing to IS’ increased freedom of movement, as well as its activities in its former core areas and the areas in dispute between Baghdad and Erbil. The Federal Government linked the strengthening of IS to the coalition’s temporary suspension of operations in early January 2020. In addition, the Federal Government pointed to “terror attacks on a regular basis”; in particular, the “complex attack” south of Mosul on 7 February 2020 – the first such attack since November 2017.
The Federal Government continued to walk the fine line between sustainable and perpetual self-defence. It seems that with recent developments on the ground in Syria and Iraq, its legal argument in support of the use of force has become stronger. It would, however, go too far to purport that the doubts about the legality of Germany’s participation in Operation Inherent Resolve have completely vanished.
Category: Use of force
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.