There is considerable disagreement whether President Obama has acted unconstitutionally or unlawfully when proceeding to military action against ISIL/ISIS without new Congressional authorization but instead legitimizing the airstrikes with the old 9/11 AUMF authorization related to Al-Qaida.
For purposes of the debate under US law, it should not go unnoticed that the United Nations Security Council applies its own “theory” concerning ISIL’s association with Al-Qaida. In this post, I explain that the Security Council requires the United States and other governments to consider ISIL an associated force of Al-Qaida for some purposes, and this may encourage governments to do so for other purposes.
To date, ISIL continues to be listed under the Security Council’s 1267 terrorist sanctions regime as an entity “associated with” Al-Qaida, as one of the aliases of Al-Qaida in Iraq, entity number QE.J.115.04 on the Al-Qaida terrorist list. That list was originally established pursuant to Security Council resolution 1267 (1999) as a targeted sanctions mechanism against the Taliban of Afghanistan and it was subsequently broadened to become a universal list of individuals and entities associated either with the Taliban or Al-Qaida. Through resolution 1989 (2011) the 1267 terrorist list was cleaned of the Taliban who now are subject to a separate sanctions regime, so that today the 1267 terrorist listing mechanism applies only to individuals or entities determined by the Security Council as being associated with Al-Qaida. There is no other justification for placing an individual or entity on that list than its association with Al-Qaida. What follows from the continued inclusion of ISIL on that list is that there is a legally binding obligation for all UN member states, under the UN Charter and its Chapter VII, to treat ISIL as being associated with Al-Qaida, for purposes of the resulting sanctions.
For the sake of clarity, it needs to be mentioned that the Al Nusrah Front (ANF) is also listed as being associated with Al-Qaida, as entity number QE.A.137.14 in the 1267 terrorist list. Obviously, there are different ways of being “associated with” Al-Qaida.
Just some weeks ago (15 August) the Security Council elaborated upon this “theory” of ISIL being associated with Al-Qaida by saying in a new Chapter VII resolution 2170 (2014) that even if ISIL is “a splinter group of Al-Qaida,” the Security Council treats it as being “associated with” Al-Qaida and is prepared to include in its 1267 Al-Qaida terrorist list foreign fighters of ISIL, as well as anyone else who by other means is supporting ISIL.
Here are three pertinent operative paragraphs of Resolution 2170:
7. Condemns the recruitment by ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida of foreign terrorist fighters, whose presence is exacerbating conflict and contributing to violent radicalisation, demands that all foreign terrorist fighters associated with ISIL and other terrorist groups withdraw immediately, and expresses its readiness to consider listing those recruiting for or participating in the activities of ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida under the Al-Qaida sanctions regime, including through financing or facilitating, for ISIL or ANF, of travel of foreign terrorist fighters;
[…]
18. Observes that ISIL is a splinter group of Al-Qaida, recalls that ISIL and ANF are included on the Al-Qaida sanctions list and in this regard, expresses its readiness to consider listing individuals, groups, undertakings and entities providing support to ISIL or to ANF, including those who are financing, arming, planning or recruiting for ISIL or ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida through information and communications technologies including the internet and social media or through any other means;
[…]
21. Encourages the submission of listing requests to the Committee by Member States of individuals and entities supporting ISIL, ANF, and all other individuals, groups, undertakings and entities associated with Al-Qaida and further encourages the Committee to urgently consider additional designations of individuals and entities supporting ISIL and ANF;
In the Annex of the same resolution, six more individuals were added on the 1267 Al Qaida sanctions list, some as ISIL, others as ANF, and one individual even as member of both entities. Typically, the rationale for placing the persons in question on the 1267 list is that the person “is associated with Al-Qaida or any cell, affiliate, splinter group or derivative thereof” (emphasis added).
There is, of course, no UN Charter obligation for states to use military force against ISIL, as long as the Security Council has not said so acting under Chapter VII. But as there is a Chapter VII obligation to treat ISIL as “associated with Al-Qaida” in some respects (the sanctions), it would appear at least permissible for purposes of international law for states to treat ISIL as associated with Al-Qaida also in other respects, including in the interpretation and application of their domestic law. This consideration may be a valid domestic law argument in interpreting the scope of the 9/11 AUMF.
The United States has very much been in the driver’s seat in shaping and transforming the Security Council’s terrorist listing regime. Resolution 1267 itself was born out of the US aspiration to have the Taliban of Afghanistan surrender Osama bin Laden whom they were harboring in 1999. In the aftermath of 9/11, the widening of the scope of the 1267 list and the inclusion of new names in it closely followed and mirrored the OFAC terrorist listings first decided by the US under its own law (See Lisa Ginsborg, The New Face of the Security Council since 9/11: Global Counter-Terrorism, Human Rights and International Law, PhD thesis in law approved at the European University Institute in June 2014, chapter 5). Not a single individual or entity has been included in the list without the approval of the United States, and it can be safely assessed that in an overwhelming majority of cases the initiative for listing has come from the US. In a sense, through its own action and influence in the UN Security Council the United States government has been in a position to create the fact that ISIL continues to be associated with Al-Qaida. Many of us may not like this outcome but there are also several other features in the Security Council’s terrorist listing regime that we do not like. Whether we like it or not, however, is not the point here.