Chapter 7:   DECISIONS AND DOCUMENTS

Section 12:   Communications

 

Self-defence under Charter Article 51 invoked in cases related to individuals

 

Article 51 of the UN Charter 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.”  

 

On 8 January 2020, the United States representative wrote to the Security Council President to report pursuant to Charter Article 51 that her country had “undertaken certain actions in the exercise of its inherent right of self-defence”, including “an operation on 2 January 2020 against leadership elements of Iran’s Islamic Revolutionary Guard Corps Qods Force on the territory of Iraq” (S/2020/20).  

 

The Iranian “leadership elements” referred to in the American letter included first and foremost Major General Qasem Soleimani, head of the Qods Force since 1998, who was not mentioned by name.[1]  As justification for the US claim to have acted in self-defence, the American letter cited a “series of escalating threats and armed attacks” by Iran, among them the 27 December 2019 “indirect fire” attack targeting bases where US forces in Iraq were located.

 

The American letter did not argue that either Soleimani, or members of the Qods Force under his direction, were planning an imminent attack against US citizens.  That rationale had been given by members of the Trump Administration in the days immediately following Soleimani’s death.  However, it was not included in the mandatory memo presented by the Trump administration to Congress in February.[2] 

 

Invoking self-defence under Article 51 in the case of actions taken against individuals has been extremely rare in the history of the Security Council.

 

7 September 2015 marked the first time that the killing of an individual was reported to the Council as having been carried out under Article 51.  On that date, the United Kingdom representative wrote to the Council President to report pursuant to Article 51 that his country had “undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self-defence.”  According to the letter, on 21 August 2015, UK armed forces “carried out a precision air strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling.”  That “target”, unnamed in the letter, was Reyaad Khan, a British member of ISIL/Da’esh.  The letter affirmed that the strike “was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom”. (S/2015/688)   

 

The letter contained two justifications:  First, as quoted above, the letter stated that the “target” in the ISIL vehicle was “known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom”.  As a second justification, the letter underscored that “ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.”

 

In contrast to the 2020 American letter and the 2015 United Kingdom letter, attacks killing individuals in other States have been carried out which have not been reported to the Council as acts of self-defence under Article 51.  For example, in 2011, the United States announced that an American drone and jet strike in Yemen had killed the suspected terrorist Anwar al-Awlaki, an American citizen.  However, the US did not report the strike to the Council under Article 51.  An American Justice Department memorandum was later released which concluded that the law authorizing force against al-Qaeda provided a legal basis for killing al-Awlaki. 

 

In 2014, an instance of citing Article 51 in connection with an individual occurred, but that individual was captured, not killed.  In a letter dated 17 June 2014 to the Council President, the  American representative reported that her Government had captured in Libya Ahmed Abu Khattalah, who would be presented to a US federal court for criminal prosecution for his role in the 2012 attacks against the American Mission in Benghazi.  Stating that a “painstaking investigation” had determined that Abu Khattalah “continued to plan further armed attacks against United States persons”, the letter affirmed that his capture in Libya was “therefore necessary to prevent such armed attacks”.  It further stated that his capture had been “taken in accordance with the United States’ inherent right of self-defence” and was being reported “in accordance with Article 51”.  (S/2014/417).

 

With only three cases reported, it is hard to discern what criteria might be governing the reporting under Article 51 to the Security Council of actions taken against individuals in some instances, but not in others.  However, given the distance between the actual wording of Article 51 and the nature of actions taken against individuals in other States – especially when those actions are described as pre-emptive – it seems probable that the reasons for reporting or non-reporting are as much political as legal.

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OTHER ARTICLES ON THIS WEBSITE RELATING TO REPORTING PURSUANT TO ARTICLE 51 INCLUDE:

In 2018-19, cleavages widen over self-defence reported to the Council under Article 51

A historical overview of reporting under Article 51 on actions taken in self-defence (with Table)

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[1] While Soleimani was not named in the American letter to the Security Council, the mandatory memo presented by the Trump administration to Congress in February referred to “The airstrike against Soleimani”.

[2] Six days after the American operation which killed Soleimani, Iran carried out its own operation, which it also reported to the Security Council (S/2020/19).  In his letter of 8 January, the Iranian representative stated that earlier that day “in exercising our inherent right to self-defence in accordance with Article 51 of the Charter of the United Nations, the armed forces of the Islamic Republic of Iran took and concluded a measured and proportionate military response targeting an American air base in Iraq from which the cowardly armed attack against Martyr Soleimani was launched.”

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