CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL /…/ in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL /…/ and to eradicate the safe haven they have established over significant parts of Iraq and Syria”. 56 The formulation, referring to “all necessary measures”, is identical to the one the Council conventionally uses when authorising the use of force pursuant to Article 42 of the UN Charter. Yet, Resolution 2249 was not adopted under Chapter VII of the Charter and, as such, it “does not actually authorize any action against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq”. 57 The use of force against the IS cannot therefore qualify as a UN collective action. The Use of Force against the IS – Intervention by Invitation? Invitation by the government of the territorial State has been invoked as a legal ground by both coalitions intervening against the IS. 58 The US and other members of the CJTF–OIR have referred to the invitation of the Iraqi government – for the use of military force in the territory of Iraq. Russia has relied on the invitation by the Syrian government – for the use of military force in the territory of Syria. In addition, scholars have discussed the possibility of an implicit consent given by Syria to the US military presence on the Syrian territory. 59 The first claim has not been disputed; the second has given rise to some debate; and the third one has secured very few supporters even among those endorsing the US intervention in Syria. 4.1 Intervention by Invitation in Iraq? The use of force in the territory of Iraq by the US and some of its allies has been justified primarily by the request of the Iraqi government. On 23 September 2014, President Obama informed the US Congress and the Senate that he had ordered the Armed Forces to conduct “a systematic campaign of airstrikes and other necessary actions against /…/ terrorists in Iraq and Syria”, noting that “these actions are being undertaken in coordination with and at the request of the Government of Iraq and in conjunction with coalition partners” . 60 Earlier that year, as the US was starting the operation in Iraq, a senior US official stated that “with respect to international law, we believe that any actions we would take, to include airstrikes, would be consistent with international law, as we have a request from the Government of Iraq. So we’ve essentially been asked and invited to take these actions by the Government of Iraq, and that provides the international legal basis” . 61 The same argument was made by the United Kingdom and Canada. In the summary of its legal position, issued on 25 September 2014, the UK government noted that “international law is clear that the use of force in international relations is prohibited, subject to limited exceptions. However, international law is equally clear that this prohibition does not apply 56 UN Doc. S/RES/2249 (2015), 20 November 2015, par. 5. 57 AKANDE, Dapo, MILANOVIC, Marko, The Constructive Ambiguity of the Security Council’s ISIS Resolution, EJILTalk, 21 November 2015. Compare with MILANOVIC, Marko, How the Ambiguity of Resolution 2249 Does Its Work, EJILTalk, 3 December 2015. 58 BANNELIER-CHRISTAKIS, Karine, Military Interventions against ISIL in Iraq, Syria and Libya, and the Legal Basis of Consent, Leiden Journal of International Law, Vol. 29, 2016, pp. 743-775. 59 See RONZITTI, Natalino, The Intervention against the Islamic State under International Law, Centre for Security Studies, Zurich, 7 November 2014. 60 White House, War Powers Resolution Regarding Iraq, Press Release, 23 September 2014. 61 White House, Background Briefing by Senior Administration Officials on Iraq, Press Release, 8 August 2014. 4.

246