Chapter 7:   DECISIONS AND DOCUMENTS

Section 12:   Communications

 

Reporting to the Council in 2016-17 pursuant to Article 51 on actions taken in self-defence

 

A related article on this website discusses the trend in during the 2014-2015 time period particularly for UN Member

States from the Western European and Other States Group (WEOG) to transmit letters to the Security Council pursuant to Article 51 of the UN Charter, and this trend continued in 2016 and 2017. Article 51 reads:

 

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an

armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.  Measures taken by Members in the exercise of this

right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action

as it deems necessary in order to maintain or restore international peace and security.” (italics added)

 

In 2014 and 2015, eleven such letters were addressed to the Council President by WEOG States.  Except for a letter from the United States reporting on the capture of Abu Khattalah in Libya (S/2014/417), all of these letters related to actions undertaken against the Islamic State in Iraq and the Levant (ISIL or Da’esh) in Iraq or Syria, or in both countries.  Since December 2014, such actions against ISIL/Da’esh have been under the coordination of the United States-led “Combined Joint Task Force – Operation Inherent Resolve” (CJTF–OIR). 

 

From 1 January 2016 to 31 December 2017, seven letters reporting actions under Article 51 were sent to the Security Council, five of which related to actions undertaken against ISIL/Da’esh.

 

The first Article 51 letter sent to the Council in 2016 was from the representative of Denmark (S/2016/34), who stated,

 

“I am writing in accordance with Article 51 of the Charter . . . to report to the Security Council that the

Kingdom of Denmark, as called for by the Council in its resolution 2249 (2015) and in response to the

request by the Government of Iraq, is taking necessary and proportionate measures against the so-called

Islamic State in Iraq and the Levant (ISIL, also known as Da’esh) in Syria in exercise of the inherent right of

collective self-defence as part of international efforts led by the United States of America.”

 

The second letter sent to the Security Council pursuant to Article 51 in 2016 was from the representative of the Netherlands (S/2016/132).  He did not specify whether the actions undertaken by his Government were in Iraq or Syria, or in both countries.  Rather, he underlined that the Council’s resolution 2249 (2015) “called on Member States to prevent and suppress terrorist actions committed by ISIL and to eradicate the safe havens that ISIL has established over parts of Iraq and Syria.” 

 

On 3 June 2016, the representative of Norway sent a letter (S/2016/513) to the Council President in which he stated,

 

“I am writing in accordance with Article 51 of the Charter of the United Nations to report to the Security Council that the Government of Norway is taking necessary and proportionate measures against the terrorist organization Islamic State in Iraq and the Levant (ISIL, also known as Da’esh) in Syria in the exercise of the right of collective

self-defence. . . .  The measures are directed against ISIL, not against the Arab Republic of Syria.” 

 

Several days later, on 7 June 2016, the representative of Belgium wrote to the Council President (S/2016/523) in order

 

“to report to the Security Council that, in accordance with Article 51 of the Charter of the United Nations, the Kingdom of Belgium is taking necessary and proportionate measures against the terrorist organization ‘Islamic State in Iraq and the Levant’ (ISIL, also known as Da’esh) in Syria in the exercise of the right of collective self-defence, in response to the request from the Government of Iraq.”

 

Whereas the letters from Denmark, the Netherlands, Belgium and Norway informed the Security Council in general terms of military actions being undertaken pursuant to Article 51, on 24 August 2016, the representative of Turkey wrote about a specific operation.  According to his letter (S/2016/739),

 

“Turkey initiated a military operation in the early hours of 24 August 2016 against DEASH, which has been

directly and deliberately targeting Turkey, as part of its national efforts and in collaboration with international actions.  This military action, supported by the International Coalition elements, is being undertaken in areas

under DEASH control in northern Syria.  This measure was essential in terms of ensuring Turkey’s border

security and our national security based on the notion of self-defence as outlined in Article 51, but also within

the context of the responsibility attributed to member countries in the fight against terrorism through Security Council resolutions 1373 (2001), 2170 (2014) and 2178 (2014).”

 

By the end of 2017, of the 74 States participating in “Operation Inherent Resolve”, the following eleven had sent letters to the Security Council reporting that they are acting pursuant to Article 51 in Iraq or Syria, or in both countries:

 

1. Australia

2. Belgium

3. Canada

4. Denmark

5. France

6. Germany

7. Netherlands

8. Norway

9. Turkey

10. United Kingdom

11. United States

 

Of the other States contributing to the CJTF-OIR, many are involved primarily in capacity-building, training, and other non-combat military support, for which Article 51 letters would in all likelihood not be required.  However, four States identified on the CJTF website as having carried out air strikes on behalf of the Coalition have not sent letters to the Security Council pursuant to Article 51:  Bahrain, Jordan, Saudi Arabia, and the United Arab Emirates

 

The absence of reporting to the Council under Article 51 by some of the States engaged in military actions against ISIL/Da’esh under the aegis of “Operation Inherent Resolve” echoes the uneven practice which has characterized the implementation of Article 51 over the years.  This is despite the fact that Article 51’s provision that “Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council” is clearly mandatory.  The variable practice with respect to Article 51 has probably been compounded by the fact that the Council has only rarely addressed the issue of whether or not a specific action reported to it in fact qualifies as “self-defence” (see a related article on this website).  

 

Syria has repeatedly conveyed to the Secretary-General and the Security Council President its position regarding military actions undertaken purportedly under Article 51 on Syrian territory without the Government’s permission.  For example, on 29 September 2016, the Syrian representative charged that

 

“the operations of the so-called international coalition are illegal because it was established outside the

framework of international law, in contravention of the principles and purposes of the Charter of the United Nations, and without prior coordination and complete cooperation with the Government of the Syrian Arab Republic.  The Government furthermore reiterates that citing Article 51 of the Charter to justify the

establishment of the coalition and its operations is a distortion of the principles of the Charter and constitutes

an attempt to exploit its provisions in order to achieve the political aims of specific States.”  (S/2016/820)

 

In addition, the representative of Syria has complained in a number of communications specifically about “the repeated aggressions the forces of the Turkish regime have committed against the sovereignty and territory of Syria” and has disputed that such actions are actions grounded in the Charter.*  In response, Turkey has argued, as it did on 24 March 2017 (S/2017/256), that

 

“Turkey has undertaken the necessary measures in response to the terrorist attacks carried out by DEASH,

which has been directly and deliberately targeting Turkey, in exercise of the inherent right of self-defence as outlined in Article 51 of the Charter of the United Nations.”

 

As concerns Iraq, since 2015, Iraq had complained that “The entry of Turkish forces, including heavy combat equipment and a large number of troops, deep into Iraq territory is an act of provocation and violates international law” (see, for example, S/2015/963).  Then on 17 October 2016, a letter from the Iraqi Foreign Minister (S/2016/870) stated that

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“Owing to tactical considerations related to the rules of engagement that the various Iraqi forces tasked with liberating Mosul will follow, and given that the Turkish forces are situated near the battle lines with the forces

of the terrorist organization ISIL in the absence of a request from the Iraqi Government or its authorization,

those forces will treated as being non-friendly forces and, when absolutely necessary, will be dealt with in accordance with the provisions of the Charter, Article 51, which provides that States have the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.  The Security Council will be notified immediately of any measures taken in exercise of the right of self-defence

set out in Article 51.”

 

As the liberation of Mosul continued to its conclusion, the Iraqi Government did not find it necessary to send to the Council such a notification with respect to Article 51.

 

While the Turkish Government at various times had justified the presence of its military personnel in Iraq to protect Turkey and its nationals from aggressive actions by ISIL/Da’esh, Ankara never reported that it was acting against ISIL/Da’esh in Iraq under Article 51.  In this connection, it should be noted that whereas the US Defense Department website has listed Turkey as having conducted strikes in Syria as part of “Operation Inherent Resolve”, it has not listed Turkey as having undertaken military action in Iraq as part of the coalition.

 

However, on 25 April 2017, Turkey did cite Article 51 when it reported to the Security Council that it had taken military action in both Iraq and Syria against members of the Kurdistan Workers’ Party (PKK).  In his letter S/2017/350, the Turkish representative stated

 

“The PKK terrorist organization and its affiliates continue to operate in Syria and Iraq, target Turkish citizens,

violate Turkey’s border security and infiltrate into Turkish territory from their hideouts in northern Iraq and northern Syria. . . .  Against this background, in the early hours of 25 April 2017, the Turkish Air Force undertook

a military action on the positions of PKK and its affiliates in Sinjar, Iraq, and Karachuk, Syria, that were used

directly and deliberately for targeting Turkey.  This measure was essential not only in terms of safeguarding Turkey’s border security and national security in the exercise of its inherent right of self-defence as outlined in Article 51 of the Charter of the United Nations, but also within the context of the responsibility attributed to

States Members of the United Nations in the fight against terrorism.”

 

One other instance of reporting under Article 51 during the 2016-2017 time period was a letter sent on 27 May 2017 by the representative of Egypt (S/2017/456), who stated that

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“I write pursuant to Article 51 of the Charter of the United Nations in order to inform the Security Council that

the Egyptian armed forces are carrying out a number of necessary and proportionate air strikes against terrorist organizations in Libya.  In so doing, they are exercising their legitimate right to self-defence and acting in coordination with the national army of Libya.  This action is being taken in the light of intelligence indicating

that the organizations carried out a series of armed terrorist attacks within Egyptian territory, attacks that originated on Libyan territory. . . .  The Government of the Arab Republic of Egypt stresses that the defensive strikes are directed solely at the members and positions of terrorist organizations, and not at the State of Libya.”

 

A letter sent by the United States representative on 15 October 2016 (S/2016/869) underscores the sensitivity regarding the legitimacy of military action undertaken on the territory of other States.  In her letter, the representative reported that on 12 October 2016, the United States had conducted missile strikes on radar facilities in Houthi-controlled territory in Yemen in response to anti-ship cruise missile launches by “Houthi insurgents that threatened United States Navy warships in the international waters” on 9 and 12 October.  She underscored that these actions were taken “with the consent of the Government of Yemen”.  She then stated that

 

“Although the United States therefore does not believe notification pursuant to Article 51 of the Charter of

the United Nations is necessary in these circumstances, the United States nevertheless wishes to inform the Council that these actions were taken consistent with international law.”

 

(This update supplements page 438 of the book.)

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* See, for example, S/2017/595, S/2017/582, S/2017/545, S/2017/459, S/2017/458, S/2017/457, S/2017/364, S/2017/352, S/2017/327, S/2017/281, S/2017/280, S/2017/267, and S/2017/246.

 

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