Karine Bannelier-Christakis is an Associate Professor of International Law at the Université Grenoble Alpes. She conducts her research at CESICE: the Centre for International Security and European Studies.

Question box

What are the legal issues addressed in the article that you recently published on the military intervention against Islamic State in Iraq, Syria and Libya?

Karine Bannelier-Christakis: The purpose of my study was to examine the legal basis for that intervention. How is a state like France or the United States able to take military action to bomb terrorist groups located within the territory of a third state? After all, international law rests on an essential foundation: prohibition of the use of force by one state against another. The Charter of the United Nations prohibits states from using force in their international relations, but it does allow two exceptions: self-defence and authorisation from the Security Council. However, the Security Council has not authorised those states to use force in Iraqi and Syrian territory. Might the different states intervening militarily within the territory of those two countries then make an argument for self defence? The problem there is that, traditionally, invoking self-defence is only considered possible in the event of an ‘armed attack’ by one state against another – and the case law of the International Court of Justice confirms this approach. However, the terrorist groups against which military action is being conducted (particularly ISIS and the Al-Nusra Front) are non-state entities, and it certainly cannot be demonstrated that they are supported by Syria, Libya or Iraq; on the contrary, they are fighting them. This situation has sparked a major debate within the scientific community regarding the possibility of invoking self-defence against non-state actors as grounds for intervening in third states. However, there is a third legal path, not covered by the prohibition of use of force, and that is ‘intervention by invitation’. Any given state is perfectly entitled to seek help from another state in fighting terrorist groups.

Like when Mali sought French intervention…

K. B.-C.: Precisely. In this particular case, the Government of Mali, faced with certain terrorist groups (including AQIM in particular) advancing towards Bamako, called on France for help – a call that France answered decisively in January 2013. There are certain legal limits for intervention by invitation, which I analyse in detail in my work, but there is no doubt regarding the legality of military intervention undertaken by invitation or by consent against a group that is clearly recognised internationally and, especially, by the UN as ‘terrorist’.

As is the case in Syria and Iraq with Islamic State…

K. B.-C.: Indeed, both Islamic State/ISIS and the Al-Nusra Front are on the UN’s list of terrorist groups. In terms of the military intervention against ISIS, the issue that arises is therefore that of an invitation serving as the potential legal basis for military intervention. Such is the case in Iraq, where the government clearly agreed to the various foreign military interventions against the terrorists in its territory. In Syria, on the other hand, the situation is much more complicated. Russia and Iran are claiming such a right to take military action in Syria based on an invitation from the Syrian government, but their actions raise further legal issues insofar as they are being accused of going beyond the fight against terrorism and intervening in the civil war. As for the actions of the US led coalition in Syria (of which France is a part), other legal difficulties have emerged. In fact, for a while, although it had not given its express agreement for the intervention conducted by the coalition, Syria seemed to rather approve of it. But then, at the end of September 2015, Syria very clearly declared its opposition to US-led coalition strikes, meanwhile expressly requesting help from the Russians and the Iranians…

In the case of Syria, who makes the invitation? Bashar al-Assad’s government?

K. B.-C.: Yes. Admittedly, some states, including France, have recognised the members of the Syrian National Coalition (which is fighting Bashar al-Assad’s regime) as ‘the legitimate representatives of the Syrian people’. However, despite this loss of legitimacy, in the eyes of part of the international community, Bashar al-Assad’s government continues to represent Syria. That is why, for example, delegates accredited by Damascus are the ones who represent Syria in the major international organisations, namely within the UN.

You also focus on the regulation of cyberspace. What are the challenges involved?

K. B.-C.: Cyberspace is a space that is undergoing major expansion. However, as highlighted by the Stratégie Nationale pour la Sécurité dans le Numérique (National Strategy for Digital Security), while the development of digital space may be a driver for growth and innovation, it is also a forum for confrontation and competition between states and a new space for organised crime and all kinds of criminal, terrorist and malicious activities (blackmail, fraud, bullying, radicalisation via social networks, cyberattacks, etc.). The main issue here is therefore determining whether states should intervene to regulate digital space or whether, on the contrary, in line with the hopes of certain large corporations, private players should be allowed to act freely. The first step has been taken within the United Nations by the team of government experts working on this issue, which has confirmed the application of international law in cyberspace. That said, we must now look at the extent to which the international rules developed in the 19th and 20th centuries are able to meet the specific challenges of cyberspace. It is therefore necessary to test, as it were, the major international rules and principles to determine whether or not they provide an adequate response to the challenges of cyberspace and/or if we need to start adopting new international instruments.

What is a cyberattack?

K. B.-C.: We are witnessing an increasing number of cyberattacks directed against companies, public services and critical national infrastructures worldwide. These attacks take different forms and serve different purposes: viruses, worms, intrusions to steal information (personal, medical, commercial, economic, scientific, strategic, etc.), website defacement or denial-of-service attacks intended, for example, to saturate a server by flooding it with requests. Today, human activities are heavily reliant on digital technology, be it for transport, energy or even health, and certain cyberattacks can have far-reaching consequences for the infrastructures targeted. Of course, the issue in international law is qualifying those attacks, providing a framework for them or even prohibiting them and identifying the resulting legal consequences (attribution, liability, possibility of retaliation or acting in self-defence, etc.). However, cyberattacks are by no means confined to states. Such attacks most often come from private players (companies, hacker groups, individuals, etc.) who, from the territory of a given state, conduct cyberattacks against targets (public or private) located in the territory of other states. In an effort to address this growing issue, what I am developing as part of my work is the adaptation of the principle of due diligence for cyberspace. Due diligence is actually an old principle in international law derived from that of sovereignty, requiring states to ensure that the activities conducted within their territories do not infringe the rights of other states. With that in mind, I am trying to develop the concept of cyberdiligence, according to which states should ensure that their infrastructures are not used to launch cyberattacks against the territory of other states. Obviously, if we develop this cyberdiligence concept, we must also strike a balance between security and privacy to avoid slipping into the Orwellian world of 1984. After all, under the pretext of the need to fight against cyberattacks, states might be tempted to engage in mass surveillance of their citizens, or even of citizens all around the world as seen in Snowden’s revelations. It is therefore important that Europeans have the opportunity to get to grips with these issues, as we have a strong culture of human rights – thanks primarily to the European Convention on Human Rights and the European Court of Human Rights – that can help us suggest a way forward where security and respect for human rights find a balance. All of these challenges are particularly complex, and so a multidisciplinary approach is needed if we are to fully understand them. Failing that, we risk committing to legal rules that are completely out of touch with current scientific, technical, social and economic issues. That is why we created AMNECYS (‘Alpine Multidisciplinary NEtwork on CYbersecurity Studies’), uniting researchers from various disciplines such as law, economics, political science, computer science and cryptology.
Publié le December 14, 2016
Mis à jour le February 20, 2017

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