In memory of all victims of terrorism.
In a more and more interconnected and integrated reality which is the world we live in, globalization, new technologies and new means of communications have cut distances among people and, at the same time, have exposed all of us to new ominous threats such as terrorism. The recent phenomena of ISIS and jihadism are major symbols of the current global challenges to international security. The outrageous and coward terrorist attacks perpetrated by ISIS in Paris, Beirut and Sinai among the others are urging the international community to find a common solution to the threats stemming from the Caliphate. Because of its inner violent nature, this plague cannot be addressed exclusively through diplomatic means. Indeed, political dialogue and negotiations are unlikely when the counterpart is a terrorist group which explicitly aims at defeating the West and expanding the Caliphate. At the same time, the international community is struggling to reach an agreement on a joint military intervention against ISIS.
Divergent views on a common threat
From a strategic point of view, ISIS is questioning the capacity of the international community to find a common solution against the violence perpetrated by jihadism. ISIS’ terrorist attacks and violent campaign have been condemned relentlessly and worldwide. At the same time, the international community has struggled to find an agreement on how to address this new global threat. This is particularly evident when analyzing the recent bilateral exchanges between Russia and the US. On the one hand, the Paris attacks have pushed Putin and Obama to set aside (at least partially) their long-lasting rivalry in the name of the fight against terrorism. The Quint was the main occasion for them to have a direct discussion on how to address in a joint way this common challenge. On the other hand, this exchange has not brought about any alignment in the Russian and American visions of interstate relationships and more specifically of the role of al-Assad in Syria. This is a key point when addressing the challenges posed by the Caliphate inasmuch as al-Assad forces constitute one of the main opponents to ISIS. Russia took a hard line on al-Assad staying at the power, thus delaying the reconciliation with Western countries, particularly with the US, which cannot support the Shiia regime for the sake of its reputation. Indeed, not only has the US always opposed to al-Assad leadership so far, but it has also been among the main supporters of the opposition to the Syrian regime both in economic and military terms. These circumstances are slowing, if not hindering, the agreement on a common action against ISIS, in which the US and the rising Russian superpower should play a key role. The recent downing of a Russian jet by Turkey, which is a NATO country, has further frustrated the bargaining process, making it unlikely to reach an agreement in the short term.
Hesitating on the use of force against the Caliphate
Up until now, these disagreements have prevented the organization of a joint military intervention under the aegis of the UN. Once again, the Security Council has shown its weaknesses and ineffectiveness vis-a vis an international crisis, refraining from activating explicitly Chapter 7 of the UN Charter. Indeed, its action was limited to the adoption of Resolution 2249/2015 which “[…] 5. Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria; 6. Urges Member States to intensify their efforts to stem the flow of foreign terrorist fighters to Iraq and Syria and to prevent and suppress the financing of terrorism, and urges all Members States to continue to fully implement the above-mentioned resolutions;[…]”. The way the text is formulated has raised strong doubts about its nature. Indeed, many have questioned the decision be a Chapter VII resolution, with the consequence that the text would have a mere political value, thus proving the weakness of the UN in complying with its core function: maintaining and restoring peace and security. In this regard, most Chapter VII resolutions determine the existence of a threat to the peace, a breach of the peace, or an act of aggression in accordance with Article 39, and make explicit reference to Chapter VII when listing the measures decided by the Security Council. However, not all resolutions are that explicit, which creates disagreements on whether a clear mention of Chapter VII is required to authorize the use of force. On the one hand, the supporters of the implicit vision stress that explicit mentions of the Chapter VII are not required for a resolution to constitute an authorization to the use of force. This vision is based on the fact that historically there have been no instances in which a Council’s authorization to use force was based on anything other than a Chapter VII scenario. Therefore, it can be concluded that an authorization to use force is endogenously based on Chapter VII powers, even when the Charter is not explicitly recalled. On the other hand, it has been repeatedly highlighted that, even though explicit mention of that chapter (or its articles) may not be formally needed (since no provision in the Charter specifically contemplates such authorization), state practice now seems well established and the Security Council routinely decides to employ authorization models by consensus. Notwithstanding the criticisms about the legality of the authorization model and its conformity with the Charter, in recent years the Security Council has frequently resorted to explicit authorizations to use force as a means to adopt binding decisions and to define a clear legal framework for the use of force, while granting the respect of the charter. Specifically, this custom started in the aftermath of the Cold War when Iraq invaded Kuwait. When the US and the UK expressed the intention to enforce a blockade, based on article 51 of the Charter (thus recalling the self-defence clause) and pursuant to a request for assistance from Kuwait, the Security Council drafted a resolution to authorize the implementation of sanctions. This was due to the concern of other Council members about basing such actions simply on the basis of a bilateral consent. Differently, the US and UK did not considered a resolution be necessary, since in their view the blockade fell under article 51, given the request of assistance coming from the government of Kuwait. Nevertheless, this process resulted in the adoption of Resolution 661/1990 on the blockade and Resolution 678/1990, which contained the authorization for coalition forces to start the ground offensive against the Iraqi invasion of Kuwait. Both the decisions explicitly mentioned the Security Council be “Acting under Chapter VII of the Charter”, thus constituting an important precedent. Since then, authorizing resolutions have consistently included a determination in accordance with article 39; the chapeau “acting under Chapter VII;” and an operative paragraph containing a “decision” to authorize member states to use force. This was the case of the authorizations regarding Iraq (resolutions 678, 1483 and 1511) and Afghanistan (resolutions 1386 and 1510) among the others. However, in recent times, the lack of explicit references to “Chapter VII” in the Security Council’s resolutions has generated misunderstandings within the United Nations system. The recent anti-ISIS Resolution is a major symbol of this lack of clarity and determination in the Council’s action for the maintenance of peace and security. Indeed, Resolution 2249/2015 sounds like a course that the Security Council owes to the international community and represents an ill-conceived attempt to maintain its reputation as world peacekeeper, rather than a concrete and significant engagement of the UN in taking the lead in the fight against ISIS. This has fostered considerable doubts on the usefulness and effectiveness of the decision and raised concerns on the inner role of the Security Council itself.
Overcoming NATO’s impasse
Nor the resort to the NATO alliance was envisageable in such a context, especially after the downing of the Russian jet by Turkey. The main pillar of NATO security system is Article 5 of the Washington Treaty, which binds members together, committing them to protect each other and setting a spirit of solidarity within the Alliance. The principle of collective defence, enshrined in Article 5, states that: “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist 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, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.” Stating that an attack against one Ally is considered as an attack against all Allies, Article 5 creates an obligation for all member states to assist their counterparts in case one of them is attacked. The article was invoked for the first time in its history after the 9/11 terrorist attacks against the United States and later in response to the situation in Syria and Ukraine. However, it was not invoked in the aftermath of the Paris attacks.
The choice of avoiding Article 5 can be explained by analyzing the interstate dynamics that are shaping the current international scenario. The resort to the NATO’s defence system was made impossible mainly by two circumstances: on the one hand, Obama has refrained to take the lead of a military intervention against the Caliphate, avoiding any direct engage requiring more than air strikes and provisioning of supplies to the anti-ISIS coalition. On the other hand, the US seemed to be reluctant to find an agreement with Russia, whatsoever. It is exactly behind this uncompromising policy against the Caliphate that the weaknesses of the US lay. Indeed, the US seems to be struggling to maintain its reputation as super-power while implementing disengagement in the Middle East, trying to avoid any direct military intervention that would disown Obama’s “pacifism”. At the same time, Washington refuses to seat and look at Moscow fighting concretely against ISIS and replacing the US in its traditional role as a global leader and influencer. In this context, invoking Article 5 would have urged the US to provide its support to France, thus going against Obama’s reluctance to engage in a conflict. At the same time, a NATO-led intervention would have forced the US to re-discuss the role of al-Asad as a means to find an agreement with Russia in view of a joint or at least coordinated military action.
These circumstances left President Hollande no choice but invoking article 42.7 of the Lisbon Treaty, which embeds the mutual assistance clause. This article is often read as a mutual defence clause in that it states that “if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. […]”. Even tough it represents a major effort of the EU member state to create their own common defence system, this article introduces some relevant cautions with regard to its activation. Particularly, the text states that the fulfillment of the mutual assistance clause “[…] shall not prejudice the specific character of the security and defence policy of certain Member States. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation”. A major intrinsic limit of this article lies in that the circumstance that justifies its activation is a Member State be “the victim of armed aggression on its territory”. No explicit reference to terrorist attacks is made in article 42.7, which raises doubts on whether or not this notion is embedded in the expression “armed aggression” and whether or not this last be referred only to aggressions perpetrated by state actors. Also, doubts on the application of the clause of mutual assistance stem from the presence of Article 222 of the Lisbon Treaty, which enshrines the Solidarity Clause and make explicit reference to terrorism: ”1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilize all the instruments at its disposal, including the military resources made available by the Member States, to: (a)prevent the terrorist threat in the territory of the Member States; protect democratic institutions and the civilian population from any terrorist attack; assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b)assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. 2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council. 3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 15b(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed. For the purposes of this paragraph and without prejudice to Article 207, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 61 D; the two committees shall, if necessary, submit joint opinions. 4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.”. This clause resulted from a long process begun in June 2002 in Seville with the Declaration by the European Council on the contribution of the Cfsp, including the Esdp, to the fight against terrorism, and was further developed in the aftermath of the Madrid and London attacks. Its intrinsic limit lies in that when a decision has implications in the defence sector its implementation hinges on the consensus of the Council of the EU. The difficulty in reaching such a consensus might be one of the reasons why President Hollande did not make any reference to the solidarity clause and preferred invoking Art 42.7. A second reason is linked to the intrinsic characteristics of the mutual assistance clause. Differently from the supranational Solidarity Clause, Article 42.7 is inherently intergovernmental. Indeed, it allows the member states to assess the extent of their assistance to their counterparts on a bilateral basis.
In the aftermaths of the Paris attacks, invoking Article 42.7 has enabled the EU countries to support France based on their own capacities. At the same time, the mutual assistance clause offered France the possibility to respond to the terrorist attacks through military means, embedding those actions in the EU frameworks while giving the enemy the impression of a strong and unified Europe.
Up until now, the international community has struggled to find a common solution to the challenges posed by ISIS. Vis-à-vis these divisions, invoking Article 42.7 has represented a first attempt to face concretely the threats stemming from the Caliphate. Nonetheless, this choice constitutes a second best solution that will probably keep the fight against ISIS in limbo until the international community, particularly the US and Russia, will reach an agreement and join forces against the Caliphate. To grant the effectiveness of such an intervention, there is a strong need for building a solid culture of security in Western countries. The absence of such a culture is evident when considering that public opinions usually avoid debating on security issues, as if these last were a taboo or, worst, as if security threats did not exist. This blind and silent optimism is a major symptom of people often feeling detached from the reality they live in. The opposition of public opinions to war is at the core of the absence of a military intervention against ISIS. Many countries seem to be reluctant to intervene against the Caliphate because they lack their public opinions’ support. This last is fundamental for the international community to respond efficiently to the current threats to peace and security. Indeed, there is evidence that democracies win wars only if their citizens support them. Consequently, in order to grant the success in the fight against the Caliphate, it is essential to allow Western public opinions understand that ISIS is posing real and concrete challenges to international security, which are to be addressed in a real and concrete manner likewise.
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