This essay argues that based on treaties of the EU and UN it is justified for the German state to use violence against ISIS. Since the appearance of the so called Islamic State of Iraq and Syria (ISIS) in 2014, the world has changed. ISIS is a terrorist group which is responsible for thousands of deaths in the Middle East and Europe and has become a serious threat for non-supporters of the Muslim values that ISIS wants to impose on every country that does not represent those beliefs. To reach their target, ISIS destroys historic buildings, for example in Palmyra, uses violence, and evokes fear throughout the world, as ISIS uses media to film and show their brutal acts to make millions of people becoming their witnesses. Consequently, whole countries are horrified because of the brutality of ISIS and fear to be the next target.
As time passed, increasing numbers of countries, even EU-countries, and individual groups started to fight against ISIS, trying to prevent more civilians to become victims of the terrorist group and to pursue their own security interests. As ISIS expanded their target group to European countries, killing hundreds of people in Paris in 2015 by bomb attacks, the German government decided to use violence against ISIS in Syria. However, as will be demonstrated below, that decision is a "hot-button" topic because the opinions about the use of force by a State to stop a terrorist group are diverse and not everyone agrees on that. The purpose of this essay is to show that the use of violence by the German State against the Islamic State of Iraq and Syria is justified, taking into consideration treaties by the UN and the EU.
The use of violence by the German State against the Islamic State of Iraq and Syria is justified by treaties of the European Union and the United Nations
Carolina Gerwin
Since the appearance of the so called Islamic State of Iraq and Syria (ISIS) in 2014, the world has changed. ISIS is a terrorist group which is responsible for thousands of deaths in the Middle East and Europe[1] and has become a serious threat for non-supporters of the Muslim values that ISIS wants to impose on every country that does not represent those beliefs. To reach their target, ISIS destroys historic buildings, for example in Palmyra[2], uses violence, and evokes fear throughout the world, as ISIS uses media to film and show their brutal acts[3] to make millions of people becoming their witnesses. Consequently, whole countries are horrified because of the brutality of ISIS and fear to be the next target. As time passed, increasing numbers of countries, even EU-countries, and individual groups started to fight against ISIS, trying to prevent more civilians to become victims of the terrorist group and to pursue their own security interests.[4] As ISIS expanded their target group to European countries, killing hundreds of people in Paris in 2015 by bomb attacks, the German government decided to use violence against ISIS in Syria.[5] However, as will be demonstrated below, that decision is a “hot-button” topic because the opinions about the use of force by a State to stop a terrorist group are diverse and not everyone agrees on that. The purpose of this essay is to show that the use of violence by the German State against the Islamic State of Iraq and Syria is justified, taking into consideration treaties by the UN and the EU.
On the 4th of December 2015, after the terror acts in Paris, the German Bundestag decided upon a motion by the German government to send up to 1200 soldiers of the German Bundeswehr to fight against ISIS in Syria. However, not all members of the German parliament shared the same opinion: 445 members supported that decision, 145 members denied it and 7 abstained from voting. The German government justified their motion with article 51 of the UN- Charter combined with part 7 of article 42 of the treaty of the EU and the resolutions 2170 (2014), 2199 (2015) and, as the most important one, 2249 (2015) of the UN Security Council.[6] To understand the different positions concerning the justification of military force against ISIS it is necessary to know the juristic basis of these.
Article 51 of the UN- Charter, the first basis, says the following:
“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 UN, 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.”[7]
In part 7 of article 42 of the Lisbon Treaty of the EU, the second basis, it is mentioned that “if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the UN- Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.”[8]
With Resolution 2249 of the Security Council of the UN, the third basis, the Council encourages the Member States, generally speaking, to proceed and intensify their efforts with “all necessary measures, in compliance with international law, in particular with the UN- Charter, as well as international human rights, refugee and humanitarian law” to combat against terrorist groups as ISIS that are labelled in the resolution as a “global and unprecedented threat to international peace and security.”[9]
Regarding the first treaty that is used as a legitimation by the German Bundestag for the operation of the German Bundeswehr against ISIS, which is article 51 of the Charter of the UN, the Bundestag can indeed refer to it to justify its decision. The promoters of the operation of the German Bundeswehr against ISIS point out that because of the fact that ISIS plans terrorist attacks in Germany, the defense of terrorism can be seen as an act of self-defense and is therefore justified.[10] Regarding ISIS, this argument is even more important and must be stressed because one factor that makes ISIS outstanding from other terrorist groups, is its “celebration and exhibition of violence” that they use to spread fear among countries and to get the attention from the media.[11] That is also the reason why, taking into consideration the definition of Michael Ignatieff, members of ISIS cannot be seen as “freedom fighters” but as “terrorists.” According to Ignatieff, “freedom fighters” maintain the rules of war and keep the immunity of civilians, while terrorists do not.[12] Imagining that ISIS itself would refer to article 51 because of attacks from other countries, ISIS could not use the charter as a legitimation as ISIS consists of terrorists and because of the fact that ISIS evokes the use of force as ISIS kills innocent civilians. Therefore, Germany and other Member States have the right to use article 51 as a legitimization, while ISIS does not have such a legitimate basis. Nevertheless, some members of the German Bundestag doubt the last point and state that the German State cannot use article 51 as a justification for its decision. The side of the opposition argues that the article refers to the attack of a state to another state. Hence, as ISIS is a group of terrorists, but not yet a state, although they act and see themselves as one, the UN-Charter is not applicable.[13] However, O’Connor points out that the article is not limited to an armed attack by a state but that the only condition is that such an armed attack against one of the Member States of the UN occurs at all.[14] Furthermore, she makes the statement that the right of self-defense by a state against an attack, whether by another state or by “non-state actors”, is generally not debated.[15] Therefore, article 51 of the UN-Charter justifies the operation of the German Bundeswehr against ISIS, as (1) Germany is in the focus of the terrorist group and (2) as armed attacks in the Middle East and also Europe already took place. Consequently, Germany has the right of self-defense and can therefore justify the use of violence against ISIS with this article.
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[1] „Zahl der Terroropfer weltweit auf dem Höchststand,“ Frankfurter Allgemeine, November 17,2015, accessed December 4, 2016, http://www.faz.net/aktuell/politik/ausland/zahl-der-terror-opfer-weltweit-auf-neuem-hoechststand-13916748.html.
[2] “IS-Dschihadisten sprengen Triumphbogen in Palmyra“, Spiegel Online, October 5, 2015, accessed on December 4, 2016, http://www.spiegel.de/politik/ausland/islamischer-staat-in-palmyra-terrormiliz-sprengt-offenbar-triumphbogen-a-1056142.html.
[3] Vicken Cheterian, „ISIS and the Killing Fields of the Middle East”, Survival 57:2: 105-106.
[4] Argyro Kartsonaki and Stefan Wolff, „The EU’s responses to Conflicts in its Wider Neighborhood: Human or European Security?”, Global Society 29 (2015): 220, accessed November 13, 2016, DOI: 10.1080/13600826.2015.1021242.
[5] Markus C. Schulte von Drach, “Wer gegen den IS kämpft“, Süddeutsche Zeitung, November 16, 2015, accessed December 4, 2016, http://www.sueddeutsche.de/politik/anti-is-koalitionen-wer-gegen-den-islamischen-staat-kaempft-1.2739217.
[6] „Bundestag billigt Einsatz der Bundeswehr gegen IS“ (4.12.2015), Der Bundestag, accessed November 19, 2016, https://www.bundestag.de/dokumente/textarchiv/2015/kw49-de-bundeswehreinsatz-isis-freitag/397884.
[7] “Chapter VII,” United Nations, accessed December 12th 2016, http://www.un.org/en/sections/un-charter/chapter-vii/.
[8] “Article 42”, EUR-Lex, accessed December 12, 2016, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008M042.
[9] “Security Council ‘Unequivocally’ Condemns ISIL Terrorist Attacks, Unanimously Adopting Text that Determines Extremist Group Poses ‘Unprecedented’ Threat ”, United Nations, November 20, 2015, accessed December 12th 2016, http://www.un.org/press/en/2015/sc12132.doc.htm.
[10] „Bundestag billigt Einsatz der Bundeswehr gegen IS.“
[11] Vicken Cheterian, „ISIS and the Killing Fields of the Middle East”, Survival 57:2:106.
[12] Michael Ignatieff, „Human Rights, the Laws of War, and Terrorism, “Social Research 69 (2002): 1153.
[13] Gigi Deppe, „Bundeswehr-Einsatz in Syrien-Auch rechtlich ziemlich verzwickt,“SWR, accessed November 19, 2016, http://www.swr.de/swrinfo/bundeswehr-einsatz-in-syrien-auch-rechtlich-ziemlich-verzwickt/-/id=7612/did=16581150/nid=7612/rvu2zc/.
[14] Laurie O’Connor, „Legality of the use of force in Syria against the Islamic State and the Khorasan Group,” Journal on the Use of Force and International Law 3 (2016): 71.
[15] Ibid., 83.
- Citation du texte
- Carolina Gerwin (Auteur), 2016, The German State against the Islamic State of Iraq and Syria. How the use of force is justified by treaties of the European Union and the United Nations, Munich, GRIN Verlag, https://www.grin.com/document/510890
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