After the Attacks France Launches Its Response... But is it Legal?

In the aftermath of the deadly terrorist attacks in Paris that left many casualties, President Hollande has qualified the attacks as “acts of war” and emphasised before Parliament that France is “at war”, adopting a series of measures comprising the launching of air strikes on Syrian ground and requesting assistance from other states.

From a legal standpoint there are two controversial questions. The first regards ISIS and its qualification under international law. Is DAESH a state? The DAESH (aka ISIS, ISIL and Islamic State) is embedded in the territories of two existing states: Iraq and Syria. Initially, DAESH territorially focused but in a fast-moving development after these attacks it has gone global. Unlike Al Qaeda, which was combating against the state, DAESH is a self-proclaimed state that purports to have a territorial basis with Raqqa as the capital of the caliphate but it fails to meet the conditions to be qualified as a state under international law. Accordingly, at this stage, ISIS lacks international legitimacy and is not recognised as such by other states. In sum, it is as a “proto-state”, a non-state actor.

prohibition of the use of force is a core norm of international law

The second contentious question concerns the legality of France’s response. Until September 2015, when it struck a DAESH training camp in Syria after January’s assaults, France had not taken active participation in the military operations in Syria. The terrorist attacks have prompted France’s new response by launching various air strikes against DAESH targets. Since the prohibition of the use of force is a core norm of international law (Article 2.4 UN Charter), the controversial question lies with the justification. Traditionally, the exception requires a UN Security Council authorisation which, with the threat of Russia’s veto hanging over, has not acted. Syria has not given explicit consent (remaining silent in this regard) as the state on whose territory the operations are conducted.  Individual self-defence, on the other hand, as a traditional defence that precludes wrongfulness in international law would be applicable to the case. However, it cannot be invoked (so far) against non-state actors, as held by the International Court of Justice in the advisory opinion on the construction of the wall in Palestine.

Therefore, France could resort to collective self-defence under Article 5 Washington Treaty (NATO) since the terrorist attacks attributed to the Islamic State are affecting NATO strategic interests. Under the NATO Treaty, the parties may exercise the right of individual or collective self-defence pursuant to Article 51 of the UN to restore and maintain the security in the members, notifying the Security Council. Such measures shall be terminated once the Security Council has taken the measures necessary to restore and maintain international peace and security.  The US invoked that article for the first time after 9/11.  

The major obstacle remains for both, collective and individual self-defence, that DAESH cannot be strictly considered a state. Previous international law decisions dealing with actions against a non-state actor, have not deemed the exercise of self-defence as lawful. Nonetheless, recent practice may offer support as the UN Security Council endorsed the US action in Afghanistan following the NATO’s resolution pursuant to Article 5 expressly recognising the US’s right to individual self-defence.

It is too early to assess the long-term effects of these measures. Ultimately it is a question of protection of national interests

A new dimension has been added since France has invoked the EU legal basis. The initial guess was that France would appeal to so-called ‘solidarity clause’ applicable in the event a member state has been object of a terrorist attack (Article 222 of Treaty on the Functioning of the European Union and also covering man-made disasters) to request support from other EU members states to “mobilise all the instruments at its disposal, including military resources”.

However, France has resorted to the EU treaty mutual defence clause in case of aggression (in accordance with Article 51 of the UN Charter and under the umbrella of NATO), requesting mutual assistance from other EU member states. France is the first member state to invoke article 42-7, which requires all states to offer aid and assistance “as they are able”. The French Defence Minister, Jean-Yves Le Drian, has stated that EU members could assist “either by taking part in France’s operations in Syria or Iraq, or by easing the load or providing support for France in other operations.”  France has, then, considered the attacks as “armed aggression” claiming the right to self-defence. Again, it is still unsettled if “armed aggression” could be interpreted also encompassing armed attacks from non-state actors.

It is too early to assess the long-term effects of these measures. Ultimately it is a question of protection of national interests. One thing is sure, this is a decisive moment that can be a turning point in many regards, namely, in terms of the cooperation in security at EU level and the use of force in international law.

Dr. Belén Olmos Giupponi is a lecturer in Law at the University of Stirling

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