War on Terror 2.0?

Following the attacks in Paris, a global coalition in the fight against ISIL emerged. History seems to repeat itself. What have we learned from the events since 2001, and how did it come to the current escalation?

Following the attacks in Paris, a global coalition in the fight against ISIL emerged. History seems to repeat itself. What have we learned from the events since 2001, and how did it come to the current escalation?

“France is at war.” With these words, French President Francois Hollande addressed his people and the world at large immediately after the attacks in Paris. Speaking in a, for him, untypically bellicose language, the president declared that the perpetrators deserve ruthless punishment. Since then, France has intensified its already ongoing airstrike operation against Syria on bases of the so-called Islamic State and has also stationed its aircraft carrier Charles de Gaulle off the Syrian coast. This also constitutes the first time that the EU treaty’s mutual assistance clause has been invoked – in this case by France. Consequently, all EU member states immediately assured France their full support. Meanwhile, the Western allies seem to consider cooperation with Russia and even with Assad’s troops as conceivable options in the global coalition against ISIL.

And what about Germany? Germany, too, has been gearing up for a battle since November 26, and is affirming its resolve to support the collective destruction of ISIL structures with German air- and sea-based resources. It is also open to discuss further commitments. If the Bundestag agrees to a mandate to deploy forces, a total of 1,200 soldiers will be initially sent to the war declared by France.

Hollande’s choice of words is a grim reminder of the “war on terror” proclaimed by George W. Bush in 2001, while the political responses from abroad also echo the proclamations of solidarity that prevailed among United States’ allies at the time. Moreover, in 2001 the United States appealed to the right of self-defense, similarly to the allies today, who are invoking the principle of collective defense enshrined in Article 5 of the NATO treaty.

The results of this first war on terror are known and, at best, ambivalent. “Coalitions of the willing” were formed; following the removal of the Taliban in Afghanistan, an ill-founded campaign against the regime in Baghdad was led; a collective peace-making mission in Afghanistan was commenced, and terminated a decade later; and the overthrow of Libya’s dictator Gaddafi made way for state failure and militia violence. Al-Qaida, the initial target of the “war on terror” was indeed weakened, but not destroyed. The organizations that have since formed not only appear to be more powerful and brutal than their predecessors, they are also making concerted efforts to recruit new members from Western societies.

Is this merely a repetition of history or is this a “war on terror 2.0”, putting us on the brink of World War III, as some apprehensive observers suspect and the ubiquitous war rhetoric from Paris to Moscow suggests? This state of affairs calls for a critical assessment of the legal and political rationale behind the current escalation.

The problematic legal basis of the “war on terror”

France strained the law to justify its declaration of war. Indeed, Article 51 of the UN Charter concedes its member states—albeit with two limitations—the right to self-defense in the case of an armed attack. The general principle of international law regarding the proportionality of means the first limitation. The other is that the UN Security Council can assume responsibility of the matter if it deems it a threat to international peace and security. Past resolutions as well as the manner in which the topic is treated in France’s current resolution evidence that the UN Security Council considers terrorism, in principle, to constitute such a potential threat.

However, unlike previously, France’s current resolution does not refer to Chapter VII of the Charter, which can legitimize and mandate coercive measures taken by the Security Council in accordance with international law. The vague wording of the resolution could possibly be explained by the currently low common denominator among the permanent members. More on this later.

The conditions for establishing a consensus under the auspices of the United Nations are difficult to meet. This challenge is compounded by paragraph 7 of Article 42 of the Treaty on European Union, which, although less discussed to date, has in fact an interesting history. It refers to the integration of the former Western European (defense) Union into the European Union, accomplished through the Amsterdam Treaty amending the Treaty of the European Union. Indeed, its wording is nearly synonymous with Article 5 of the Modified Brussels Treaty of 1954, which states that: “If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power.” Article 42, paragraph 7 of the Treaty of the European Union, states 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 United Nations Charter” [emphasis added].

Indeed, the unconditional and absolute phrase “all the means in their power” constitutes an even greater obligation to assist, both factually and territorially, than does the NATO solidarity clause. The latter provides that each member state “will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area” [emphasis added].

However, whether the terrorist attacks of Paris qualify as a condition that would grant a state the right to resort to self-defense, in conformity with international law, is debatable. France was not attacked by a state but by individuals who are or have been affiliated with the terrorist organization ISIL. A war of self-defense under Article 51 of the Charter would serve to give recognition to the terrorist organization, inadvertently supporting their state-building project, and would lead to a wave of solidarity with the “victims” of the air strikes among like-minded all over the world. Yet, the threat to international peace and security caused by transnational terrorism contributed to a genuine effort of the UN Security Council to arrive at a common stance. Indeed, despite all political conflicts of interest, the five permanent members are unanimous about one issue, namely that ISIL is a threat to all and is to be destroyed. A Security Council resolution under Chapter VII could be achieved and would definitely be a more reliable legal basis for a clear mandate and a better coordinated effort against ISIL.

How problematic an unclear legal situation can be for the coordination of activities is evidenced by field reports of the early years of the mission to stabilize Afghanistan. In this case, Washington’s continued reference to the right to self-defense led not only to the application of different rules of engagement but also impeded coordination efforts between the nations.

Some observers consider the critical examination of such legal arguments an inappropriate, hesitant, and sometimes “typically German” debate. Yet such a stance overlooks the fact that military and political reactions to terrorist attacks threaten to unhinge the international legal system as we know it. Some 300,000 victims of the war in Syria and 11.5 million war refugees did not lead to a war coalition—yet attacks and threats to cultural sites and sports facilities as well as aircrafts and restaurants located in some of the nations participating in the coalition did.

If the law is to be regarded as an organizing function of politics, the political objectives of those who take the law into their own hands need to be critically questioned.

The unsustainability of political and strategic objectives

Is the planning of the armed operations based on a comprehensible, long-term political strategy? Does this strategy promote consensus within the alliance against terrorism? Does military action against terrorism reduce the threat potential thereof?

The identifiable strategy of the war coalition is above all twofold, pragmatic and shortsighted. It is based on the assumption that ISIL can be defeated militarily. It assumes that no significant deployment of ground troops is necessary since the actors in Syria must be keen to rid their country of ISIL’s presence. It believes that a military intervention will not only destroy ISIL but also the rule of the Assad regime. And, finally, it seems to assume that this strategy will strengthen regional and international security and remove the root causes of terrorism.

None of these assumptions are plausible. ISIL is essentially not an army that needs to be conquered but an Islamist state-building project whose foundation must be destroyed. This goal cannot be achieved with actors who vie against each other for the supremacy over the areas targeted by ISIL. For the Syrian opposition groups, Assad and his troops are not potential allies. Assad’s supporters, for their part, fear vendettas along the lines of the Iraq war and will hardly relinquish any of their power. Russia will not agree to a toppling of Assad if its own strategic interest in the military outposts Tartus and Latakia are not permanently provided for. Why should the Kurds be satisfied with the continued division of their nation, as the result of military successes against ISIL, and abstain from directing the weapons surrendered to them against others? Finally, how will the people on the ground and in the diaspora react to the continued destruction of their infrastructure, not to mention the expected outrage at so-called “collateral damage”?

As regards the efficiency of military assets in particular, the classical instruments of the world’s governments fail in the fight against terrorism. That said, military assets and capabilities could be useful provided that there is a clear Chapter VII mandate for the fight against terrorism. The range of potential military contributions to the fight against terrorism within the framework and as part of a coherent overall concept is more extensive than suggested by the current war rhetoric.

Examples include: the prevention of the illegal sale of arms, be they for land, air or sea combat; practical assistance in the reform of the security sector in Syria and Iraq; international policing to promote security and the rule of law, including the disarmament of illegal militias and gangs; and contributions to emergency preparedness and disaster management. Targeted operations against the command headquarters and logistics hubs of ISIL may be useful—provided their legitimacy under international law is established beyond all doubt and that the undertaking does not impair the pursuit of more appropriate measures, such as targeted prevention or prosecution.

Terror prevention: challenges and prospects

It is undisputed that Western societies, which serve as recruitment pools for ISL, require comprehensive and targeted police and secret service resources for identifying the structures and connections of the terrorist networks. However, obtaining information about Islamist-inspired terrorist groups is difficult. Their cells are usually small-scale, clandestine operations that are moreover difficult to reliably access due to cultural and language barriers. Furthermore, informants are difficult to secure, since their unmasking would risk them being expelled from their respective communities as traitors. By now, many cells also operate transnationally and often obtain their funding and equipment through legally operating front companies.

Preventive measures adopted on short notice, such as the raising of terror alert levels or the cancellation of major events, show both the vulnerability of liberal societies as well as the high degree of uncertainty regarding the reliability of protective measures. The political and public pressure on liberal democracies to ensure the best possible prevention against terrorist threats will continue to grow under these conditions. In Germany, for example, current events have resulted in the recourse to formulaic responses that would be politically unacceptable under different circumstances and that lack adequate security measures. Admittedly, this puts the prevention of terror in front of a constant dilemma, since its success is not measured primarily by whether attacks were prevented or not. However, if it comes to an attack the entire prevention system is subject to public scrutiny. It is precisely for this reason that governmental preventive policy often veers toward solutions that provide the maximum degree of politically enforceable protection.

Experience shows that there is not only a link between the social breeding ground and the recruitment of terrorist cells but also between a strong communal identity and prevention policy. The credibility and ultimately the effectiveness of anti-terror measures are ultimately determined not only by their implementation and enforcement, but equally by the political will of nations to follow up on their declarations of intent to work in support of the international community with appropriate action, and by the acknowledgement of the citizens of these nations that these measures serve to secure their freedom.

This commentary is a translation of the article “War on Terror 2.0?