Diverging Member State Approaches to the Illegal Use of Force: The Need for EU Cohesion

The question of whether the use of force can be justified based on humanitarian grounds has in recent years re-attracted considerable attention due to a range of incidents, including the air strikes in Syria in April 2018, Turkey’s ongoing military incursions in Syria, and the killing of Iranian major general Soleimani in January 2020. As shown by research conducted by the Just Security blog, the reactions to the air strikes in Syria highlight that the approaches to the illegal use of force among states around the world differ widely. While this is perhaps not altogether surprising, state practice also reveals significant divergence within the EU on this matter, despite being supposed to contribute to strict respect for international law and to pursue a common foreign and security policy.

One of the EU’s objectives is to contribute “to the strict observance and development of international law” which includes respect for the principles contained in the UN Charter (Article 3(5) TEU). Additionally, not only are the EU Member States required to “assist each other in carrying out tasks” stemming from the EU Treaties (Article 4(3) TEU), they must also collaborate “to enhance and develop in their mutual political solidarity”, refraining from actions that would undermine the effectiveness of the Union “as a cohesive force in international relations” (Article 24(3) TEU). Relying on the official statements made by three EU (and NATO) Member States, the Netherlands, Germany and France, in response to the use of force in Syria and Iran, this blog post argues that the absence of a common position regarding the illegal use of force among the EU Member States seriously hampers the Union’s objectives of acting as a cohesive unit on the international stage and of collectively upholding respect for international law.

The Use of Force in the UN Charter

There are two exceptions to the general prohibition on the use of force enshrined in Article 2(4) of the UN Charter: the use of force under the authorisation of the UN Security Council (Articles 39-42) and the use of force in individual or collective self-defence (Article 51). While the UN Charter does not contain any provision allowing for the use of force for humanitarian purposes outside of these two exceptions, some states, including the UK, maintain that such a humanitarian-based exception to the prohibition on the use of force, nonetheless, exists. The military action in Syria of April 2018 illustrates this well.

EU Member States’ Reactions to the Air Strikes in Syria

On 14 April 2018, the US, France and the UK launched air strikes targeting three facilities in Syria used for the production, research and storage of chemical weapons, without UN Security Council authorisation. The military action was a direct response to the alleged use of chemical weapons (chlorine) by the Assad regime in an attack on Douma which took place seven days earlier. In response to the military action taken by these three countries, the EU’s then High Representative Federica Mogherini stressed that the Union “is supportive of all efforts aimed at the prevention of the use of chemical weapons”. However, where does the EU’s rather vaguely formulated statement of support stand when compared to those issued by the Union’s individual Member States?

Contrary to issuing a statement of support, the Dutch government expressed its understanding (in Dutch begrip) for the military action. The firm emphasis on the distinction between understanding (“begrip”) and (political) support (“(politieke) steun”) indicates that the Dutch government was rather reluctant to issue a statement of support. While the North Atlantic Council expressed its “full support” for the military action, the Dutch government explained in a NATO-internal declaration of vote (stemverklaring) that it had difficulties (“moeite”) with the expression of “full support”. The official Dutch position at the time was that interstate use of force should not be supported politically if it did not have an adequate basis in international law.

In the meantime, the German government expressed some form of support, claiming that the military action was necessary and appropriate (“erforderlich und angemessen”) to uphold the international respect regarding the use of chemical weapons and to warn the Syrian regime in regard to further violations. When confronted with the question whether the air strikes were in conformity with international law, the German government emphasised that the existence of an additional exception to the use of force is controversial (völkerrechtlich umstritten), thus refraining from saying that the military action was illegal.

Lastly, the French government, as one of the three allies, justified the military action by arguing that the use of chemical weapons in Syria was “in total violation of international law and United Nations Security resolutions” (“en totale violation”).Stressing that the French government “cannot tolerate” the use of chemical weapons, the government highlighted the need “to establish responsibility, prevent impunity and obstruct any temptation on the part of the Syrian regime to repeat these acts”. The fact that the great majority of the UN Security Council voted against Russia’s motion to condemn the air strikes was further used by the French government to reject the argument that the military action was contrary to international legality (“contraire à la légalité internationale).

Interestingly, the French government’s justification differs to a significant extent from the justifications put forth by its two allies. While the US government invoked national security interest, the government of the UK relied on the principle of humanitarian intervention and the need to “alleviate overwhelming humanitarian suffering” to justify the military action. In fact, the UK was the lone voice within the EU maintaining that the air strikes actually had a legal basis in international law. Therefore, it might be argued that the EU’s approach toward the illegal use of force may have become more coherent at least in the sense that the Member State with the most extravagant and differing legal position has left the Union in January this year.

The Case of Iranian General Soleimani

Syria is just one example demonstrating how the views and positions of individual EU Member States differ when it comes to the use of force based on humanitarian grounds. While none of the above-scrutinised states, nor the EU, condemned the air strikes in Syria as such, state responses to other incidents involving the use of force without a basis in international law were even more unclear.

A compelling example is the targeted killing of major general Soleimani in Iran by the US. Following the incident, EU High Representative Josep Borrell stressed the “need for de-escalation” while refraining from commenting on the legality of the attack. The Dutch government similarly underlined the importance of avoiding further escalation and acknowledged that Soleimani played a destabilising role in the region. The illegal nature of the military action was left uncommented upon. While the German government urged the crucial need to de-escalate the situation, it equally avoided expressing its opinion regarding the legality of the attack. The French government, on the contrary, expressed its total solidarity (“son entière solidarité”) with its American allies. President Macron’s expression of solidarity is said to have followed US Secretary of State Mike Pompeo’s statement of disappointment regarding the reactions to the military action from Europe.

The Potential Ways Forward

Where do the discrepancies among the EU Member States leave the Union in terms of its commitment to act as a “cohesive force” and contribute jointly to “the strict observance and development of international law”? Despite diverging approaches on how to treat illegality among the EU Member States, international law continues to provide only two exceptions to the prohibition of the use of force as it currently stands. The illegal nature of the use of force outside the exceptions listed in the UN Charter has not been (explicitly) recognised by all of the above-scrutinised Member States. However, in order to live up to the commitments under Articles 3(5), 4(3) and 24(3) TEU, it would be advisable for the EU and its Member States to collectively recognise the absence of other exceptions to the prohibition on use of force in international law and to avoid ambiguity by explicitly acknowledging the illegal nature of the use of force without legal basis.