All across France, blue-white-red national flags flew from buildings on Friday. President Francois Hollande had asked people to hoist the tricolor in patriotic solidarity with the 130 people massacred two weeks ago in Paris. And when imagePresident François Hollande announced that we are at war with the so-called Islamic State (ISIS), the “we” included you and me. France’s fight is Europe’s fight. It involves all of us.

 

France has been attacked, Europe as a whole has been attacked. Today France sought the help and assistance of all of Europe. And today Europe, united, responded yes. ’Federica Mogherini, EU High Representative for Foreign Affairs and Security Policy stated in the margins of the Foreign Affairs Council on 17 November 2015

Although the EU FAC Ministers expressed their unanimous and full support to France and their readiness to provide all the necessary aid and assistance’, the question about the real meaning and consequences of this remain unclear for the majority, including same of the politicians. While EU law also includes a solidarity cause in the event of a terrorist attack, to “protect democratic institutions and the civilian populace”, France chose to ask for help for its external military operations.

The reaction of France to the terrorist attacks of Friday the 13th and mening of “we are at war” statement of President Holland and FAC’s position was invoking the EU’s mutual assistance clause. The introduction of a mutual assistance clause in the Treaty framework of the European Union ‘Treaty establishing a Constitution for Europe’ (Article I-41(7)).

This part of the Treaty, also known as the ‘mutual assistance clause’ (MAC) was virtually unchanged by the ‘reflection phase’ that followed the negative referenda in France (May 2005) and the Netherlands (June 2005), and found its way into the Treaty of the European Union under Article 42(7), part of the intergovernmental structure of the Common Security and Defence Policy.

In addition the solidarity of common defence and security policy can not be implemented in real-life military situation without the support of NATO. There is a strong argument, too, for NATO to recognize that one of its members, France, has been attacked, thereby activating Article 5 of the North Atlantic Treaty, which ensures mutual defense. It is no secret that NATO faces a series of security challenges from all directions – from the Syrian civil war and the influx of migrants, refugees; to the vile threat that is posed by Daesh, which has been more immediate.

When the wording of Article 42(7) is compared with that of Article 5 of the North Atlantic Treaty, three main differences are obvious: (1) Motive: Article 5 of the North Atlantic Treaty is based on an armed attack against one or more NATO members. Article 42(7) can be invoked in case of armed aggression. In concrete terms, the blockade of a harbour by a warship would be armed aggression, but not an armed attack.

(2) Area of responsibility: Article 5 of the North Atlantic Treaty limits itself to Europe, North America and other defined areas north of the Tropic of Cancer. The MAC of the Treaty of the European Union refers to ‘its territory’ and could therefore be seen as applicable world-wide due to the many overseas areas of the EU Member States. Taking the Falklands war in 1982 as an example, this war would not fall under Article 5 of NATO (south of the tropic of cancer), but could activate Article 42(7) of the Treaty of the European Union.

Means: Whereas Article 5 of the North Atlantic Treaty refers to assistance to ‘the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force’. With this wording, the Treaty allows the parties to decide on their assistance, from ‘diplomatic measures’ to ‘armed countermeasures’.

The key words in this aspect are ‘as it deems necessary’ which gives the parties to the Treaty the possibility to decide on a national basis which action is appropriate and which one is not.

Bilateral talks have begun between France and other member states to clarify French needs and other countries’ capabilities. Although all member states agreed to activate the mutual defence clause, some are more or less constitutionally hampered in participating in attacks outside its borders, but when Chancellor Angela Merkel visited Paris this week, Hollande reportedly called out his close ally.

To his credit, British Prime Minister David Cameron clearly understands the importance of increasing the military pressure on ISIS. As he explained in his statement in the House of Commons,

 We should answer the call from our allies.  The action we propose to take is legal…it is necessary.  It is because of the grave danger that ISIL poses to our security

UK Prime Minster give as reasons the “right of self-defence” as recognised in Article 51 of the UN Charter. Saying that “there are additional reasons why action now is so important. Not just the attack in Paris. But the world has come together and agreed a UN Security Council resolution 2249 on ISLI”.

The UN Security Council Resolution states that ISIL “constitutes a global and unprecedented threat to international peace and security.

It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. UK Government document published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. Based primarily on this Charter, the most commentators describe the commonly accepted parameters for the use of force in anticipatory self-defense as follows:

  1. Necessity;
  2. Imminence;
  3. Proportionality; and
  4. Exhaustion of peaceful options

Article 51 of the Charter provides the State parties with the right of individual or collective self-defense when an armed attack occurs. The first substantive part of the third Chapter seeks to establish,in the light of the debates in the doctrine, whether the concept of self-defense is restrictive or whether it might be widened in certain circumstances.

These requirements have been modified substantially by state practice in the last forty-five years. In 1986, the United States responded to a series of terrorist attacks by bombing specific targets in Libya´s command and control structure. The U.S. claimed it was acting in anticipatory self-defense against future attacks, consistent with Article 51 of the UN Charter. In 1998, terrorists bombed U.S. embassies in Kenya and Tanzania. The United States fired cruise missiles on six terrorist training camps in Afghanistan, and a facility in Sudan believed to be used to produce chemical weapons.

President Clinton expressly invoked Article 51, saying that “these strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.” This was another important development, arguably supporting the use of force against states that harbor or otherwise enable terrorists.

The legality of such strikes under U.S. and international law; about “accountability and morality”, Drone strikes, are effective and legal. Fighting against terrorism has always been the matter of law enforcement effort. That‘s to say, fighting against terrorism is a matter of international human rights law. It is also explicit from the remarks of the political and military leadership as well as the strategy documents that in the war against terrorism anticipatory or preemptive actions constitute the basis of the fighting strategy so as to eliminate the threat of terrorist attacks before they come into existence.

Article 51 does not directly authorize force “if and only if, an armed attack occurs”, but rather there remains a general right under customary international law. States have initiated and cooperated in the use of force to extend self-defense to instances in which the possibility of an attack is not imminent, but merely expected. These actions are based on an assessment of the following factors.

  1. The protection of nationals;
  2. The probability of an attack;
  3. The magnitude of potential harm;
  4. The need to disrupt terrorist planning and activities; and
  5. The need to eliminate safe havens.

The law of armed conflict (IAC), also known as international humanitarian law, applies to armed conflict situations and governs the conduct of hostilities and the protection of persons during conflict. In this regard when one or more States have resorted to use of force against another, then the rules of IAC come into play irrespective of the reason or the intensity of this encounter or of whether the parties to the conflict consider themselves to be at war with each other and how they describe this conflict.

In the aftermath of the terrorist attacks of 11 September 2001 (hereinafter 9/11), the United States has initiated military operation, Operation Enduring Freedom, together with the United Kingdom against the de facto government of the Taliban in Afghanistan on 7 September 2001 in order to eliminate Al-Qaeda and its associates from the territory of Afghanistan.

In fact, in order to legally justify its counterterrorism effort and particularly the use of drone strikes against terrorists in different countries, the US authorities pursued two alternative arguments. In his speech to the American Society for International Law’s Annual Meeting in March 2010, the US State Department Legal Adviser Harold Koh claimed that:

―…as a matter of international law, the United States is in an armed conflict with Al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law.

In the minds of the national political and military authorities of the US there
is no doubt that the US is really at war with terrorism. In this regard, under the goal of “strengthen alliances to defeat global terrorism and work to prevent attacks against us and our fiends” the U.S. National Security Strategy-2002 expresses that. Likewise, the other strategy and guidance documents explicitly recognize that the nation is waging a global war on terrorism. For example, the National Defense Strategy promulgated in March 2005 begins with express saying that ―America is a nation at war.

Following 9/11, a Security Council Resolution recognized the inherent right of self-defense in accordance with the U.N. Charter. Troops were deployed against the Taliban in Afghanistan by twenty seven states.

This time, the use of force extended to Regime Change, and it decisively extended the right of self-defense to include force against countries that provide a safe haven for terrorist groups that have already struck.

Soon after Barack Obama was elected, as U.S. president, he was strongly urged by the outgoing CIA director, Michael Hayden, and his new top counterterrorism adviser, John Brennan, to adopt special counterterrorism operations to confront Al-Qaeda and other terrorist groups plotting attacks against the U.S. And Pentagon officials pressed the new president to dramatically ramp up the wars in Yemen and Somalia to fight the emerging threats in those countries. The view among President Obama´s inner circle was that Iraq, Afghanistan and those other countries in Africa had served as safe haven for terrorist groups, but deploying them outside conventional war zones meant different legal and diplomatic consideration would apply.

The U.S. Security Strategy has looked more to its own military power for remedies. The National Security Strategy of made it clear that “the U.S. would feel free to use armed force without authorization of the United Nations Security Council to counter not only and actual or imminent attack involving weapons of mass destruction (WMD) but also a WMD threat that might be uncertain as to time and place”. The declared U.S policy reaffirmed on this point by the strategy issued in March 2006 has, therefore parted ways with the UN Charter provisions on self defence. The aim of the strategy was said to be “to help make the world not just safer but better”, indicating that the US believed that this policy had benefits for all.  One reason is the focus on the war on terrorism and the handling of specific cases to help to prevent the terrorist attack.

There are more than 15,000 nuclear weapons left on the planet, and there are countries and terrorists threatening to acquire and use them. Whether by accident or by malice, it would just take one nuclear weapon detonating in New York, London, or Mumbai to kill instantly hundreds of thousands of innocent civilians. No one underestimates the difficulties on the road to disarmament and to outlawing nuclear weapons in the same manner in which the other weapons of terror, biological and chemical weapons have been outlawed.

International law matters a great deal in how a country approach counterterrorism operations against ISIL. In this way, international law serves as a critical enabler of international cooperation and joint action on a full range of matters.

In short, some of the hard questions that arise on terrorism issues come from the strain of trying to impose traditional legal structures on new threats. However, the right of self‑defence in Article 51 of the UN Charter may be exercised individually where it is necessary based on factors on customary International Law (CIL). CIL is typically defined as the collection of international behavioral regularities that nations over time come to view as binding on them as a matter of law.

This standard definition contain two elements. There must be a widespread and uniform practice of nations. And nations must engage in the practice out of a sense of legal obligation. This second requirement, often referred to as opinio juris, is the central concept of CIL. Because opinio juris refers to the reason why a nation acts in accordance with a behavioral regularity, it is often described as the “psychological” element of CIL. It is what distinguishes a national act done voluntarily or out of comity from one that a nation follows because required to do so by law.

CIL suffers additional doubts about its legitimacy that do not burden treaties. But, the conventional wisdom holds that international custom as evidence of general practice(s) accepted by States as law; and those obligations bind nations to act together. And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. The resolution states that ISIL “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, “to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL and it says that we should: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Efforts to degrade and destroy ISIL will continue to require coordination and cooperation among a wider range of partners, and U.S. is strongly committed to defeating Daesh. It is time to join forces to stop ISIL/Daesh, and we can significantly extend the capabilities of the international coalition forces. Today every alliance member expressed clear backing for the efforts of the International Syria Support Group in order to facilitate Syrian-led negotiations for a ceasefire and for political transition in keeping with the Geneva communiques, and also in order to isolate and defeat the terrorists. Nothing would do more to cut the legs from beneath Daesh than success in de-escalating the war in Syria, and bringing closer the day when refugees from that battered land can return to their homes, to their communities.

According to the Treaty of the European Union, the Member States are obliged to provide ‘aid and assistance by all the means in their power’.

Referring to the ESS 2003, ‘Dealing with terrorism may require a mixture of intelligence, police, judicial, military and other means.’ that response must include dialogue and diplomacy.  Legally, what is more important is that the responding State must ensure that resort to use of force was a necessity as a result of failure in practical or alternative solutions. Armed aggression does not necessarily need the imminent threat of an attack, but preventive countermeasures could be taken. This interpretation would also be in line with the European Security Strategy of 2003, which advocates the development of “a strategic culture that fosters early, rapid, and when necessary, robust intervention”, in other words “preventive engagement” in a comprehensive manner.

 

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