Prof Dr Hans-Joachim Heintze: It is a great achievement of international law that violent acts between states have been outlawed by the United Nations Charter. There are only two exceptions when states are entitled to use force: one is the classical case of self-defense after an armed attack against the state and the second scenario is that the UN Security Council would empower the respective state to use force because a grave threat to international security or international law needs to be prevented. In these two cases the state may be allowed to use force. However, such a resolution empowering the Federal Republic of Germany or France or the United States to use force in Syria does not exist.
Deutschlandradio Kultur: But if I am not mistaken the UN Security Council ruled that after the terrorist attacks in Paris all measures to stop the so-called Islamic State had to be taken. How far is one allowed to go in order to take all measures?
This is absolutely correct, we have a resolution of the Security Council which records that the terrorist attacks and activities of the IS are a threat to world peace, however, there is no consequence. This resolution is no legally binding document. Such a legally binding document requires an explicit reference to the UN Charter and especially to chapter 7. This resolution, as it is written, is a political document which condemns the terrible events in Tunis, in Paris and other terrorist attacks and it empowers all states to do within their boundaries whatever they can to fight these terrorist activities, however, it is no license to use force against another sovereign state, and Syria continues to be a sovereign state, a member of the United Nations and therefore protected by the UN Charter in her territorial integrity and political independence.
You mentioned in the beginning that there is this case of legitimate self-defense and that is exactly what the French claimed, since they had been attacked by IS terrorists in Paris, although not by a foreign state (although the IS carries the term “state” in its name). The French have proclaimed the case for European Union joint defense measures – what is your view on that from an international law perspective? Are the French arguments sufficient?
This is somewhat problematic since for the definition of a foreign attack against my own territory, committed by another state or a non-governmental organisation like the IS, has to have taken place first – in any case an attack has to be waged first against my territory. The problem in France is that the perpetrators who committed these acts all had French or Belgian citizenships and insofar it is hard to see where the dimension of a foreign actor attacking France comes in.
Moreover, the question of the case for European Union mutual defense measures – yes, it has been emphasised that a terrible attack against French law and order has been committed and the Member States convened and concluded, yes, France is entitled to defend herself. This depends on the political mechanisms within the European Union, of-course they can agree on this, however, this decision of the European Union is not equivalent to a legally solid foundation for military action against Syria from the standpoint of international law. •
Source: <link http: www.deutschlandradiokultur.de>www.deutschlandradiokultur.de/bundeswehr-in-syrien-einsatz-in-rechtlicher-grauzone.1008.de.html?dram:article_id=338445 vom 1.12.2015
(Translation Current Concerns)
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