25 Winter 2015-2016 the framework of the UN’s collective security system (i.e. the Security Council) and the right of self-defense against armed attacks.7 These exceptions give the right to one or several states to use military force abroad, under a number of conditions. The Security Council used its powers under Chapter VII of the Charter to address the threat of foreign terrorist fighters who are linked to ISIS through the adoption of Resolutions 2178 and 2199.8 But it did not authorize the use of military force against ISIS. In fact, the Security Council has never explicitly authorized military action against terrorism.9 Even the latest resolution adopted after the November 2015 attacks in Paris does not explicitly authorize military force against terrorist groups.10 The second exception is self-defense, included in Article 51 of the UN Charter, which stipulates a number of conditions for its application. This exception is now considered by some states to apply also to attacks by nonstate actors in the context of counterterrorism,11 although there are still controversies over the scope of its application.12 Humanitarian intervention (and the related concept of responsibility to protect) is another exception to the prohibition on the use of force, developed more recently, but does not have the same legal status because it is not expressly contained in the UN Charter.13 In June 2015, Ben Emmerson, the UN Special Rapporteur on the protection and promotion of human rights while countering terrorism, stated that the situation in Syria had reached the threshold of genocide and that the Security Council should therefore authorize military action and/ or refer the situation to the International Criminal Court.14 Despite Emmerson’s position, however, there is no agreement so far on the duty of the international community to intervene militarily against ISIS for humanitarian purposes. In fact, the international coalition does not offer this particular justification as a basis for airstrikes,15 although many states provide humanitarian aid, both in Iraq and Syria.16 The airstrikes against ISIS in Iraq and Syria lead to questioning these legal categories and their boundaries, although the legal basis for Iraq is less controversial. In June 2014, Iraq formally asked the U.S. to assist against ISIS and Sunni allies in its territory.17 In August 2014, the U.S. started to conduct military airstrikes, that were followed by airstrikes from other states, forming an international coalition, which includes, among others, the UK, France, Canada, Australia, Holland and Jordan. Some of these states formally approved these airstrikes in their Parliament.18 The key legal concept in the context of Iraq is consent or request. Article 20 of the International Law Commission’s Articles on State Responsibility provides that "valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act."19 According to some scholars, including Mark Weller, the existence of consent or request for intervention from 5. S.C. Res. 2178 (2014) [on threats to international peace and security caused by foreign terrorist fighters], U.N. Doc. S/ RES/2178 (2014), (Sept. 24, 2014), available at www.refworld. org/docid/542a8ed74.html (last visited Nov. 16, 2015). 6. U.N. Charter art. 2(4) states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 7. U.N. Charter art. 41, 42 and 51. 8. S.C. Res. 2178, supra note 5, and S.C. Res. 2199 (2015) [on threats to international peace and security caused by terrorist acts by Al-Qaida], U.N. Doc. S/RES/2199 (2015), (Feb. 12, 2015), available at www.refworld.org/ docid/54ef1f704.html (last visited Nov. 16, 2015). 9. Geoffrey S. Corn et al., THE WAR ON TERROR AND THE LAWS OF WAR: AMILITARY PERSPECTIVE 23 (2nd ed. 2015). 10. Dapo Akande and Marko Milanovic, The Constructive Ambiguity of the Security Council’s ISIS Resolution, EJIL: Talk, Nov. 21, 2015, available at www.ejiltalk.org/theconstructive-ambiguity-of-the-security-councils-isisresolution/(last visited Dec. 3, 2015). 11. Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Non-state Actors, 106 AM. J. INT'L L. 769 (2012). 12. Stephen R. Ratner, Self-Defense Against Terrorists: The Meaning of Armed Attack in COUNTER-TERRORISM STRATEGIES IN A FRAGMENTED INTERNATIONAL LEGAL ORDER: MEETING THE CHALLENGES, 334-55 (N. Schrijver & L. van den Herik eds., 2013). 13. For a recent analysis of the practical implications of the concept of humanitarian intervention, see Thomas G. Weiss, HUMANITARIAN INTERVENTION (2nd ed. 2012). 14. "Security Council has ‘obligation to act now’ to protect civilians from ISIL – UN rights expert," UN News Center, June 22, 2015, available at www.un.org/apps/news/story. asp?NewsId=51217#.Vh3urqTJfi6 (last visited Nov. 16, 2015). 15. Milena Sterio, The legality of ISIS air strikes under international law, INTLAWGRRLS, Sept. 12, 2014, available at ilg2.org/2014/09/12/the-legality-of-isis-air-strikesunder-international-law/ (last visited Nov. 16, 2015). 16. For a summary of the humanitarian aid provided in Iraq and Syria, see Justine Drennan, Who has contributed what in the coalition against the Islamic State?, FOREIGN POLICY, Nov. 12, 2014, available at foreignpolicy.com/2014/11/12/ who-has-contributed-what-in-the-coalition-against-theislamic-state/ (last visited Nov. 16, 2015).
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