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Chapter 7 to the United Nations charter gives the Security Council (UNSC) the power to authorize states to use force in some particular case (for example, in the first gulf war the UNSC authorized the use of force against Iraq).

Now, normally any use of force by a state is subject to international humanitarian law (IHL – the laws of war). However, since the Security Council can authorize specific uses of force and not just blanket statements such as "force can be used," the question arises as to whether or not it can override IHL.

In theory, it would seem a little strange, particularly if we decide IHL counts as Jus Cogens (a peremptory norm of international law), but the charter explicitly states that Security Council decisions are binding on any state that is a member of the United Nations, and that any obligations a state has arising from the charter supersede other obligations under international law.

So, to make up a case for clarity, say the UNSC were to pass a resolution saying that because of the power of the Islamic State in Syria, not only is it legal for states to use force against them, but they no longer have to worry about killing civilians, since only by killing large numbers of people will the world be able to deter the terrorists. Would this decision be legal (and binding)?

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    I'm not sure "legal" or "binding" are relevant concepts when it comes to a decision of the U.N. Security Council. Legal by what standard, and according to what supervisory authority? Binding on whom? – chapka May 28 '15 at 17:43
  • @chapka Legal when it comes to "the legal use of force", and specifically under article 2(4) to the UN charter. Under international law, states are in fact obligated to fulfill commitments such as treaties, including the charter, which includes two important parts, one that says that it has precedent over any other obligation a state has under international law, and the other saying that decisions of the Security Council are binding upon all members of the UN. – Roy May 28 '15 at 22:49
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The answer to your question, strictly in terms of whether they have the capacity to authorize states to violate international humanitarian law is yes.

However, it is highly unlikely. It takes only one permanent member to veto such a resolution.

Moreover, UN Charter Article 24(2) states that:

... the Security Council shall act in accordance with the Purposes and Principles of the United Nations

... and International Humanitarian Law would certainly be considered a principle of the United Nations.

So, are they capable of passing a resolution in violation of International Humanitarian Law? Sure. Is it likely to happen? Almost certainly not. Having said that, if this happened, it would be a novel area of law, and while currently, international law suggests it would be binding and legal, it is possible that sanctions could be imposed if such a resolution were passed by the Security Council.

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