Courts only infrequently touch upon questions regarding the use of force. Last Thursday, however, the German Federal Constitutional Court did precisely this in connection with Germany’s involvement in the use of force against Daesh (or ISIS) in Syria. Since 2015 German armed forces have been supporting the multilateral coalition’s military operations in Syria. The Court dismissed an application brought by part of the opposition in the German Bundestag, which challenged the legality of Germany’s course of action and, incidentally, the coalition’s military engagement against Daesh in Syria.
The passages of the decision which relate to the international law governing the use of force are embedded in rather complex considerations of German constitutional procedure regarding the standing of the claimants to raise the issue. These procedural considerations need not detain us here. Importantly, the Court holds it does not have to come down with a firm decision on the operation’s legality under international law in order to reach its decision. Instead, the Court holds that it can reject the application on procedural grounds provided that the German government made a reasonable claim to the legality of Germany’s course of action under international law (para 46).
The Court finds that the government had made such a claim. The Court’s reasoning in support of this conclusion is of considerable interest also for an international readership. At its core, the government’s claim to legality was based on the right of collective self-defense. In line with Germany’s letter of December 2015 to the UN Security Council, the government took the position that the right of collective self-defense applies if an armed attack by a non-State group (Daesh) occurs when the group has “occupied a certain part” of the territory another State from which it operates.
The Court finds that the government’s interpretation of Article 51 UN Charter is a tenable one. In that connection, the Court observes that the question of extending the right of self-defense to non-State armed attacks has been controversial since the creation of the UN. On substance, in the view of the Court, neither the wording nor the object and purpose of Article 51 of the UN Charter necessarily preclude the application of a right of self-defense against non-State armed attacks (para 50). The Court acknowledges that the International Court of Justice’s (ICJ) Nicaragua Judgment and Advisory Opinion on the Wall support a restrictive understanding of the right of self-defense requiring the attribution of the armed attack to the State against which forcible defensive action is taken. But the Court believes that the ICJ has no longer committed to this view in its judgment in the Armed Activities case. The Court further holds that the ICJ has not yet decided on the question as to whether forcible defensive action may be covered by the right of self-defense, if such action is being directed only against the non-State author of the armed attack, and not the territorial State. The Court observes that, in such a situation, the State, on whose territory the non-State armed attackers have established a consolidated territorial basis (this is our attempt to translate the German term “territoriale Verfestigung” used by the Court) at best exercises limited sovereignty with respect to that space (para 51).
The Court does not view the recognition of a right of self-defense in the case of a non-State armed attack as a fundamental change of direction in the system of the UN Charter. Rather, so the Court believes, the UN Charter object and purpose to maintain international peace and security are being pursued in response to the recent phenomenon of an international terror organization with a territorial basis (para 47). The Court emphasizes that the Security Council’s power to end the exercise of the right of self-defense through collective security action necessary to maintain or restore international peace and security remains unaffected also in cases of an exercise of the right of self-defense against a non-State armed attack (para 48). Interpreting Article 51 of the UN Charter so that it recognizes a right of self-defense if a non-State armed attack occurs does therefore not, in the view of the Court, amount to a structural change of the UN Charter.
In view of the current state of the discussion on the principle of non-use of force, it could not come as a surprise that the Court found that there is an arguable case for not limiting the right of self-defense to armed attacks by a State. One first noteworthy aspect of the Court’s reasoning is that it recognizes that the controversy about non-State armed attacks is older than the terror attacks of 9/11. A second interesting aspect of the decision is the attempt to distinguish between forcible defensive action directed against another State itself or against a non-State armed attacker on the territory of another State. The attempt to so distinguish is not new. Germany’s letter to the Security Council pointed in a similar direction. Importantly, however, such a distinction does not change the basic fact that force is used on the territory of another State without that State’s consent and does not provide the necessary answer why this third State needs to tolerate the use of defensive force on its territory. The Court alludes to this crucial point when it observes that a State, in which a non-State actor has established a consolidated territorial basis, at best exercises limited sovereignty over that portion of its territory. The Court hereby hints at the idea that territorial sovereignty as an exclusive right is premised on the power to exercise that sovereignty so that the territory does not turn into a basis for harmful cross-border action. It is at this point of the analysis that the Court at least approaches the recently much discussed “unable or unwilling” doctrine. For the establishment by a non-State group of a consolidated territorial basis on the territory of a State against the will of the territorial State may well be evidence of that State’s inability.
Importantly, the Court did not (have to) decide whether the existence of a consolidated territorial basis is a necessary condition for it being reasonable to claim that a right of self-defense exists in the case of a non-State armed attack. For the Court decided only on the operation’s mandate until October 2019, and it accordingly expressly limited its decision to non-State actors that have established a consolidated territorial basis. The Court’s decision therefore does not clarify the question with which the German government has been struggling with most recently when proposing the extension of the mandate: to what extent Germany and the multinational coalition, may (still) use force against Daesh, now that it has lost the consolidated territorial basis it had previously established.
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