Denmark announced on Friday its decision to suspend military operations of its seven F-16 fighter jets in Syria and Iraq. At the beginning of the very same week, a military investigation indicated that Danish fighter jets were involved in a 17 September airstrike of the coalition, where a series of “unintentional human errors” killed fighters aligned with the Syrian government instead of the targeted Daesh militants. After Canada (February 2016), Denmark is the second member of the so-called “Global Coalition Against Daesh” to withdraw its participation in airstrikes in Syria and Iraq, whose legal basis is not as solid as argued by France, the United Kingdom and United States.

It must be recalled that since August 2014, the so-called “Global Coalition Against Daesh” led by the US has decided to bomb Iraqi and Syrian territories. In the case of Syria, without the consent of Syrian authorities: this last point is a controversial issue, from an international legal perspective as well as from the angle of the United Nations Security Council´s practice.

Last Friday 2 December, Denmark announced officially that it would suspend its participation in airstrikes on Syria and Iraq. Danish Foreign Ministry Anders Samuelsen stated: “We have decided to withdraw the Danish fighter jets as planned.”

A few days earlier, after military investigations, top officials from the US recognised some errors during a mission held on 17 September, and in the note of The Local, it can be read that: “Defence Command Denmark, the command centre for the Danish armed forces, released a short statement following the attack that confirmed that Danish fighter jets were part of the mission. The Danish forces said it was ‘of course unfortunate if the coalition mistakenly struck anything other than ISIL forces’,” using another acronym for Daesh.

According to a note date 19 September, the results of this particular mission in Syria were: “British, Danish and Australian warplanes took part in the US-led coalition’s airstrike Saturday that reportedly killed more than 60 Syrian government troops and threatened to unravel the ‘cessation of hostilities’, military officials said Monday. The Syrian army and a key rebel leader declared that the ceasefire had collapsed and blamed each other for violations, but US Secretary of State John Kerry said he was working for a possible extension of the seven-day-old cessation period that ended Monday.”

On 30 November, a note published in Australia stated that: “The United States-led review into the airstrike released early Wednesday morning highlights two key points about the international coalition air war over Syria: first, that even the best planned military campaign will make mistakes and kill innocents, and second, that the Coalition air campaign has been one of the most tightly controlled in the history of air power. The remarkable thing is that more people haven’t been wrongly killed by Coalition strikes.”

“This constraint on air operations is legally and morally right, but the effect has been to render much of the Syrian air campaign useless. The review makes it clear that a number of factors contributed to inadvertently targeting a position near Dayr az Zawr, on 18 September occupied by Syrian Army or militia forces. For some reason intelligence reporting incorrectly identified the position as occupied by so-called Islamic State fighters.”

Denmark and Belgium, as well as France, the Netherlands and United Kingdom are the only European countries engaged in airstrikes operations in Syria and Iraq of the so called “coalition against ISIS”. Denmark’s first airstrikes in Syria took place on 5 August. In the case of Australia, its first airstrikes were launched on 16 September 2015. France first bombed Syrian territory on 27 September 2015.

Concerning the Danish decision, it is the first time that a European country decides to suspend its engagement in this kind of military operations. However, it is not the first time that airstrikes in Syria and Iraq are suspended by a state: on 22 February, Canada officially suspended all operations consisting in bombing targets in Iraq and Syria, ending a controversial action inherited from Prime Minister Harper’s administration.

Who are the real members of the ‘coalition’?

In a report published by the Foreign Affairs Committee of the House of Commons entitled “The extension of offensive British military operations to Syria“, information was provided in order to know which states were involved in airstrikes in Syria (and Iraq). Note 22, page 9: “Airstrikes in Iraq: US, UK, Australia, Belgium (withdrawn), Canada (expected to withdraw), Denmark (withdrawn), France, Jordan, the Netherlands (9). Airstrikes in Syria: US, Australia, Bahrain, Canada (expected to withdraw), France, Jordan, Saudi Arabia, Turkey, UAE (9). Total of 13 states overall.”

The decision of Denmark to “withdraw” airstrikes in Iraq has been revised after been registered by the Foreign Affairs Committee of the House of Commons at the end of 2015. On 20 April we read the following statement from the US Defence Secretary:

“This week’s decision by the Danish Parliament to approve an expanded role in the fight against ISIL [Daesh] is a welcome contribution from a valued partner in the counter-ISIL coalition and another sign of the growing momentum for the campaign to defeat ISIL. Denmark is a steadfast partner in global coalition efforts. Its contributions, including strike aircraft, air defence radar, and training and assistance to Iraqi forces, have already been significant.”

Concerning the participation of others members of the so called “Coalition Against Daesh”, on 30 November 2015 the Washington Times reported that some members of the coalition have stopped flights against daesh positions: “One Pentagon official directly involved in the counter-Islamic State fight told the Washington Times that the Saudis haven’t flown a mission against the group in nearly three months. The official, who spoke on condition of anonymity, said that Bahrain is still involved, but confirmed that Jordan stopped flying sorties against the extremists in August and the UAE hasn’t flown one since March.”

Danish involvement in the coalition

In the last report of Airwars.org, the last mission held by Denmark was on 1 December: “Update from Danish MoD on December 1st: [For Wednesday November 23rd to Wednesday November 30th, Denmark report 11 missions over the Iraqi province of Nineveh and the Syrian governorate of Ar Raqqah. They dropped eight precision bombs, launching attacks on ISIL roadblocks, buildings and facilities that manufactured improvised explosive devices to vehicles.]”

We read in this report of Airwars of October 2015 that Denmark initially asked not to identify Danish operations in press releases: “Colonel Andersen confirmed that the Danish military had asked CENTCOM not to identify Danish actions in its press releases, though argued that the introduction of the ‘partner nation’ term was a result of ‘several interests that had to be united’ rather than a Danish request exclusively. A FOIA request by Danish reporter Charlotte Aagaard later confirmed the Danish policy of rendering it impossible to identify Denmark’s role in strikes, ‘neither directly or by through deduction’, specifying that ‘the Danish contribution should not be mentioned in Coalition press releases if fewer than three nations are mentioned in relation to the activity in question’. Under pressure from Danish media, mission updates were initially expanded in November to include the names of provinces and cities targeted – although dates and locations of attacks were still withheld.”

In this other report on the Netherlands transparency on airstrikes, it can be read that Dutch extreme discretion has suffered indiscretions twice: “On only two occasions have the locations and dates of Dutch airstrikes in Iraq been revealed – on neither occasion by the Netherlands itself. Following a strike on Fallujah on 25 July 2015, France later reported it had carried out the mission with Dutch assistance. In September 2015, Airwars in collaboration with RTL Netherlands was able to show that according to a declassified CENTCOM document, “Dutch aircraft had been implicated in a possible civilian casualty incident ten months earlier.”

In this report or Airwars.org, entitled “Cause For Concern: Hundreds of civilian non-combatants credibly reported killed in first year of Coalition airstrikes against Islamic State”, we read that, concerning Denmark information on civil casualties in Iraq: “In a written response to questions from parliament’s Defence Committee, then Defence Minister Nicolai Wammen suggested that in the case of civilian deaths or injuries from Danish strikes, affected family members could seek redress in Denmark’s courts: “Compensation lawsuits [in relation to the Danish contribution to the war on Daesh] can be filed at the Danish courts in accordance with the Danish Administration of Justice Act.”

Wammen also confirmed that no agreement had been made between the Danish and Iraqi governments to ensure compensation for civilians killed by Danish airstrikes. When asked what options were open to relatives of civilian victims in seeking to clarify whether an attack had been carried out by Denmark, Wammen responded that “relatives can contact the Iraqi authorities, a Danish authority or the Coalition.”

It must be noted that information provided officially by members of the so-called “coalition” is not necessarily very clear, and numbers differ from one official source to another one, but data base and reports elaborated by Airwars.org allow us to have a better idea of the logic behind airstrikes campaign launched by the so called “Coalition Against Daesh”.

One year ago: The discussion at the British Parliament

One year ago, the British prime minister appealed to Parliament to vote in favour of Royal Air Forces’ (RAF) airstrikes against Daesh in Syria, in order to “keep the British people safe” from the threat of terrorism. At the opening of a 10-hour Commons debate on 2 December 2015, he said the country had no other choice. In the report presented to the Parliament he stated that: “I believe that the UK should now join Coalition airstrikes against ISIL in Syria,” and pointed out that “On 20 November 2015, the UN Security Council unanimously called on Member States to use all necessary measures to prevent and suppress terrorist acts committed specifically by ISIL, and to deny them safe haven in Syria and Iraq.”

A few hours after the vote, early on 3 December 2015, the first UK airstrikes took place in Syria.

Ambiguity of the UNSC resolution

As known, Security Council Resolution 2249 does not provide any legal basis for airstrikes in Syria. A careful reading of the text shows that it does not mention Article 42 of the UN Charter which allows Security Council to authorise states to the use of force, or even Chapter VII generally; nor does it use the verb “decide“, used when the Security Council adopts a resolution on the use of force.

However, this text has been presented as a solid legal basis for airstrikes in Syria by France and the United Kingdom.

In November 2015, two distinguished international lawyers entitled their analysis of Resolution 2249: “The Constructive Ambiguity of the Security Council’s ISIS Resolution“. For the authors of this article, the legal basis on which military actions can be taken in Syria is totally absent of the text:

“Resolution 2249, on the other hand, is constructed in such a way that it can be used to provide political support for military action, without actually endorsing any particular legal theory on which such action can be based or providing legal authority from the Council itself. The creative ambiguity in this resolution lies not only in the fact that it does not legally endorse military action, while appearing to give Council support to action being taken, but also that it allows for continuing disagreement as to the legality of those actions”.

With respect to the vote that took place on 2 December 2015 in London and in particular to the arguments presented by Prime Minister David Cameron concerning UNSC Resolution 2249, another distinguished professor of international law at the University of Nottingham wrote in his article, entitled “How the Ambiguity of Resolution 2249 Does Its Work”:

“Calling this particular resolution ‘clear and unambiguous’ is, with respect, a real howler. But nonetheless we can see how the ambiguity of the resolution also did its magic in internal UK politics, and not just on the international plane – I very much doubt that without it the prime minister could have obtained the necessary majority for the air strikes, or even if he did that majority would have been slim indeed.”

Invoking self-defence to justify airstrikes

Last July, we had the opportunity to refer to a collective call against the abusive invocation of self-defence in the fight against Daesh, signed by more than 240 international law professors and experts around the world. The text of this global call considers, among other arguments, that:

“Thus, numerous military interventions have been conducted in the name of self-defence, including against Al Qaeda, ISIS or affiliated groups. While some have downplayed these precedents on account of their exceptional nature, there is a serious risk of self-defence becoming an alibi, used systematically to justify the unilateral launching of military operations around the world. Without opposing the use of force against terrorist groups as a matter of principle — particularly in the current context of the fight against ISIS — we, international law professors and scholars, consider this invocation of self-defence to be problematic. In fact, international law provides for a range of measures to fight terrorism. Priority should be given to these measures before invoking self-defence.”

This collective text concludes that:

“Finally, self-defence should not be invoked before considering and exploring other available options in the fight against terrorism. The international legal order may not be reduced to an interventionist logic similar to that prevailing before the adoption of the United Nations Charter. The purpose of the Charter was to substitute a multilateral system grounded in cooperation and the enhanced role of law and institutions for unilateral military action. It would be tragic if, acting on emotion in the face of terrorism (understandable as this emotion may be), that purpose were lost.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.