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Sunday 15 April 2018

Is Theresa May in breach of international law?

By Clara Connolly

Whether the 13th April intervention in Syria by the US, France and the UK was within the parameters of international law is not the only nor perhaps even the most significant question. But it is the nub of the criticism of UK Government action by the Leader of the Opposition and internationally by Russia and the Syrian Arab Republic, so it is worth considering.

The legal justification is based on the concept of ‘humanitarian protection’ using arguments outlined by the Labour government in the case of Kosovo in 1998/9. The legal case for humanitarian intervention without UN Security Council approval was rehearsed again in 2013, when action against Syria was debated in Parliament after a major chemical attack on civilians.

Sir Bethlehem gives a useful reading list on the history and development of the doctrine of humanitarian intervention. He makes clear that it is neither codified in international law, nor established in the UN Charter, which prioritises the sovereignty of states and the illegitimacy of interference by outside bodies. The UN makes an exception of self defence, and grants itself the power to intervene when ‘international peace and security’ is threatened. So where does that leave the justification for action outside the UN, when it cannot agree on what action to take?

Security Council or unilateral action?

It is worth noting a speech by Kofi Annan, then General Secretary of the UN, in the aftermath of the NATO intervention in Kosovo. He lamented the recent ‘regrettable tendency by the Security Council not to be involved in efforts to maintain peace and security’ and in a finely balanced sentence he departed from UN orthodoxy on action outside the Security Council:
‘My reaction to the decision of NATO to take enforcement action without seeking explicit Security Council authorisation was twofold: I identified the Security Council as having the primary responsibility for maintaining international peace and security; with equal emphasis I also stated that it was the rejection of a political settlement by the Yugoslav authorities which made this action necessary, and that indeed there are times when the use of force may be legitimate in the pursuit of peace.’
The dilemma highlighted by Kofi Annan over Kosovo is precisely that posed by Syria today. In 2013, military intervention was averted by a belated UN Security Council resolution on dismantling Syria’s chemical arsenal. What is often overlooked however is that the resolution granted the Security Council the power to take enforcement action (article 1) and determined to do so (article 21) ‘in the event of non-compliance, or any use of chemical weapons by anyone in the Syrian Arab Republic.’

So why has the UN Security Council not implemented this resolution, given the repeated breaches by the Syrian regime since 2013, and the United Nations confirmation that Sarin was used by the regime in 2017?

The answer is simple: the use by Russia of its veto on the Security Council, in not only stalling a condemnation of the latest attack, but also of the continuing investigation of UN bodies into the extent of use of chemical weapons in Syria (see below).

Just as in Kosovo, where the UN had taken steps towards intervention but was unable to pursue it through the Security Council, Syria opens the question of unilateral action by states acting individually or in groups. When the Security Council is stalled, it is worth looking at the arguments for independent humanitarian intervention more closely.

Humanitarian intervention outside the authority of the Security Council

Sir Bethlehem ( above) on whose advice the UK Government has previously relied, lists a number of strands which taken together can weave a robust argument for intervention in limited circumstances:

  • The objective of the United Nations itself to protect life and ‘save succeeding generations from war’
  • The last resort rights of States to act to protect life and to ‘safeguard an interest against a grave and imminent peril’ contained in the International Law Commission’s Articles on State Responsibility 
  • Article 22 (above) exempts an act, otherwise unlawful, if it prevents another state from acting unlawfully 
  • Examples of humanitarian action discussed in the legal literature building a body of principles are the removal of Idi Amin by Tanzania; the removal of the Khmer Rouge by Vietnam; the Indian intervention in Pakistan leading to the creation of Bangladesh 
  • The No-Fly Zone in Northern Iraq in 1991 to save the lives of Kurds was not authorised by the U.N. but nevertheless not regarded as unlawful by the international community
  • The Kosovan example led to the development of a body of legal principles and constraints 
  • The Responsibility to Protect principle (adopted by the United Nations and endorsed by member nations at the 2005 World Summit) while discussed mainly in the context of United Nations action, acknowledges the fundamental challenge posed to individual states posed by Security Council inaction
  • Developments in international criminal law including the ICC and tribunals to try crimes against humanity puts the onus on individual states to act against them 

These strands do not amount to an international statutory code such as the United Nations Charter, but to a developing body of customary law, which could sit alongside the Charter to interpret the limits of its principle of state sovereignty in clearly defined extreme and exceptional circumstances, when the Security Council itself cannot act.

Are the conditions met in this instance?

The stated purpose of the action was to ‘alleviate the extreme suffering of the Syrian people by degrading the Syrian regime’s chemical weapons capability and deterring their further use.’ Whether this suffering would be significantly alleviated by targeting only chemical weapons capability—given that the vast majority of casualties are inflicted by other weapons—is an issue. But the objective is carefully worded to acknowledge its own limitations. In any case, the lawfulness of the action taken can be judged only in light of the stated objective.

The three conditions justifying action as outlined by the Government are those developed at the time of Kosovo. Let’s look at each in turn:

1. Convincing evidence, generally accepted by the international community as a whole, requiring immediate and urgent relief. 

There is overwhelming evidence of a recent chemical attack in Douma on 7th April, the night before the forced evacuation from the town, despite the chaos and confusion caused by the evacuation.

The UN investigation team was not in Syria, because its continuing investigation into chemical attacks after its finding in 2017, was vetoed by Russia.

Russia then vetoed another resolution on an investigation after the fact.

Given the perceived urgency of preventative action, and this stalling of an official UN investigation by a key ally of Assad, it must be reasonable to expect the three Security Council members contemplating action—the US, the UK and France—to rely on the proven record of the Assad regime, the available evidence, and their joint intelligence to assign responsibility for the recent attack.

The only state representatives rejecting this finding were Russia and other allies of the Syrian Arab Republic. It could therefore be argued that the evidence was ‘generally accepted by the international community as a whole.’

2. It must be objectively clear that there is no practicable alternative if lives are to be saved. 

Given the frequency of chemical attacks in Syria, the stalling of an official investigation, the Russian veto on the most recent UN Security Council vote on the attack, as well as the contemptuous flouting of the recent Security Council resolution of 25th February 2018, which imposed a nationwide ceasefire in Syria, it is hard to think of an alternative mode of action which would be effective, at least in the short term.

3. The use of force must be proportionate and necessary to the aim of relief of humanitarian suffering, and strictly limited to in time and scope, and for no other purpose. 

Given the extreme caution exercised, the targeting of three chemical facilities only, and the absence of reported casualties—military or civilian—it would be hard to argue that this condition has been breached.

I have other doubts, about whether this action alone is sufficient to address the immeasurable suffering of Syrian civilians. The arguments outlined above could form the justification for much more comprehensive humanitarian action to protect civilians, since millions of Syrians in opposition areas remain under immediate peril of serious injury and death.

Whether this action will act even as a sufficient deterrent against the continued use of chemical weapons by the regime, only time will tell. It is not my intention to justify Theresa May, but I cannot see how her action in supporting a strictly limited strike on chemical weapon facilities can be condemned as unlawful, except by those who would insist that all enforcement action outside the UN mandate against another state, however criminal, is unlawful. Anyone who really does believe that must answer Kofi Annan—what should happen when atrocious crimes are being committed and the UN itself is incapable of action?

Before and after: alleged chemical weapons storage site around 20 km west of Homs, Syria. Satellite images via DigitalGlobe.