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Syria intervention: it may not be wise, but using force may be lawful Syria intervention: it may not be wise, but using force may be lawful
(21 days later)
The government has promised that any military intervention in Syria will be in accordance with international law. We are told that Dominic Grieve, the attorney general, will be giving advice on these issues. Advising on the legality of military action is a tricky business, as Grieve's predecessor Lord Goldsmith will remember from 2003. But a former senior legal adviser to the Foreign Office has told me that, if the facts are as reported, a limited use of force by the UK against Syria could indeed be lawful.The government has promised that any military intervention in Syria will be in accordance with international law. We are told that Dominic Grieve, the attorney general, will be giving advice on these issues. Advising on the legality of military action is a tricky business, as Grieve's predecessor Lord Goldsmith will remember from 2003. But a former senior legal adviser to the Foreign Office has told me that, if the facts are as reported, a limited use of force by the UK against Syria could indeed be lawful.
As a matter of law, military action does not require the approval of parliament. I explained here last month that the decision is one for the government alone.As a matter of law, military action does not require the approval of parliament. I explained here last month that the decision is one for the government alone.
But there is a constitutional convention that deployment decisions will be debated by MPs and peers. The very fact that parliament has been recalled this week strengthens that convention. So we may now understand the convention to mean that there must be a debate ahead of military action unless circumstances make that impossible. It would also now be very difficult for any government to take military action if parliament had voted against it.But there is a constitutional convention that deployment decisions will be debated by MPs and peers. The very fact that parliament has been recalled this week strengthens that convention. So we may now understand the convention to mean that there must be a debate ahead of military action unless circumstances make that impossible. It would also now be very difficult for any government to take military action if parliament had voted against it.
We are told that the US and the UK will be relying the 1925 Geneva Protocol that prohibits the use of chemical and biological weapons in war. This refreshingly short treaty says that the prohibition on asphyxiating, poisonous or other gasses "shall be universally accepted as part of international law, binding alike the conscience and practice of nations". But of course the protocol does not allow individual states to take military action against regimes that have breached these principles.We are told that the US and the UK will be relying the 1925 Geneva Protocol that prohibits the use of chemical and biological weapons in war. This refreshingly short treaty says that the prohibition on asphyxiating, poisonous or other gasses "shall be universally accepted as part of international law, binding alike the conscience and practice of nations". But of course the protocol does not allow individual states to take military action against regimes that have breached these principles.
The use of armed force normally requires a resolution by the security council under chapter seven of the UN charter. The UK has drafted a resolution which, if passed, would authorise the use of force to protect civilians from chemical weapons. This is to be put to the five permanent members of the security council, which include the Russian Federation and China as well as the UK, the US and France.The use of armed force normally requires a resolution by the security council under chapter seven of the UN charter. The UK has drafted a resolution which, if passed, would authorise the use of force to protect civilians from chemical weapons. This is to be put to the five permanent members of the security council, which include the Russian Federation and China as well as the UK, the US and France.
Russia and China have previously vetoed resolutions critical of Syria and can be expected to block the UK's draft. But the prime minister would at least be able to demonstrate to Labour that it had tried to get UN support, as the opposition had urged it to do.Russia and China have previously vetoed resolutions critical of Syria and can be expected to block the UK's draft. But the prime minister would at least be able to demonstrate to Labour that it had tried to get UN support, as the opposition had urged it to do.
Assuming there is no resolution authorising "all necessary measures" against Syria, parliament will have to look elsewhere.Assuming there is no resolution authorising "all necessary measures" against Syria, parliament will have to look elsewhere.
Another justification for intervention in the case of Syria would be a request from rebel forces. At the end of last year, the UK government recognised the National Coalition of Syrian Revolutionary and Opposition Forces as the "sole legitimate representative of the Syrian people". But that option, by itself, does not seem very promising.Another justification for intervention in the case of Syria would be a request from rebel forces. At the end of last year, the UK government recognised the National Coalition of Syrian Revolutionary and Opposition Forces as the "sole legitimate representative of the Syrian people". But that option, by itself, does not seem very promising.
More useful may be the principle of collective self-defence. If the Syrian regime can use chemical weapons on its own people then it might deploy them against its neighbour Turkey. That might justify a right of collective self-defence by Nato in the face of a threat to one of its members, under article five of the North Atlantic treaty. There would have to be legitimate concerns by Turkey, or other Nato members, that the use of chemical weapons posed an imminent threat justifying the use of force in self-defence.More useful may be the principle of collective self-defence. If the Syrian regime can use chemical weapons on its own people then it might deploy them against its neighbour Turkey. That might justify a right of collective self-defence by Nato in the face of a threat to one of its members, under article five of the North Atlantic treaty. There would have to be legitimate concerns by Turkey, or other Nato members, that the use of chemical weapons posed an imminent threat justifying the use of force in self-defence.
Opponents of military action argue that a Nato-led attack on Syria would itself provoke retaliation against Turkey. But perhaps that is not the sort of retrospective legal justification the west is looking for.Opponents of military action argue that a Nato-led attack on Syria would itself provoke retaliation against Turkey. But perhaps that is not the sort of retrospective legal justification the west is looking for.
So the strongest legal argument in favour of military strikes appears to be humanitarian intervention. This was the UK's justification in 1998 for military action against Serbia the following year in response to the humanitarian catastrophe in Kosovo. The government's position was set out in a note circulated at the time to Nato allies. It was quoted and discussed in an article by Professor Sir Adam Roberts, published the following year.So the strongest legal argument in favour of military strikes appears to be humanitarian intervention. This was the UK's justification in 1998 for military action against Serbia the following year in response to the humanitarian catastrophe in Kosovo. The government's position was set out in a note circulated at the time to Nato allies. It was quoted and discussed in an article by Professor Sir Adam Roberts, published the following year.
What the Labour government said in 1998 was that force could be justified "on the grounds of overwhelming humanitarian necessity" without a security council resolution. But the following criteria would need to be applied:What the Labour government said in 1998 was that force could be justified "on the grounds of overwhelming humanitarian necessity" without a security council resolution. But the following criteria would need to be applied:
(a) that there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(b) that it is objectively clear that there is no practical alternative to the use of force if lives are to be saved;

(c) that the proposed use of force is necessary and proportionate to the aim (the relief of humanitarian need) and is strictly limited in time and scope to this aim – ie it is the minimum necessary to achieve that end. It would also be necessary at the appropriate stage to assess the targets against this criterion.
(a) that there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(b) that it is objectively clear that there is no practical alternative to the use of force if lives are to be saved;

(c) that the proposed use of force is necessary and proportionate to the aim (the relief of humanitarian need) and is strictly limited in time and scope to this aim – ie it is the minimum necessary to achieve that end. It would also be necessary at the appropriate stage to assess the targets against this criterion.
Regardless of the chemical weapon attack last week, it is arguable that those conditions have applied in Syria for some time. But it is also worth considering what a Foreign Office minister in the last Labour government told parliament in 1998. Lady Symons said:Regardless of the chemical weapon attack last week, it is arguable that those conditions have applied in Syria for some time. But it is also worth considering what a Foreign Office minister in the last Labour government told parliament in 1998. Lady Symons said:
There is no general doctrine of humanitarian necessity in international law. Cases have nevertheless arisen (as in northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the security council but without the council's express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe.
Such cases would in the nature of things be exceptional and would depend on an objective assessment of the factual circumstances at the time and on the terms of relevant decisions of the security council bearing on the situation in question.
There is no general doctrine of humanitarian necessity in international law. Cases have nevertheless arisen (as in northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the security council but without the council's express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe.
Such cases would in the nature of things be exceptional and would depend on an objective assessment of the factual circumstances at the time and on the terms of relevant decisions of the security council bearing on the situation in question.
Where does this leave us? I asked Sir Daniel Bethlehem QC, who was principal legal adviser at the Foreign Office from May 2006 to May 2011 and is now a barrister practising from chambers in London. While stressing that he had no inside information, Bethlehem commented that, depending on the facts, self-defence and humanitarian intervention were both "credible legal bases that may possibly be relied upon in justification of a use of military force … in response to the use of chemical weapons by the Assad regime against the Syrian civilian population."Where does this leave us? I asked Sir Daniel Bethlehem QC, who was principal legal adviser at the Foreign Office from May 2006 to May 2011 and is now a barrister practising from chambers in London. While stressing that he had no inside information, Bethlehem commented that, depending on the facts, self-defence and humanitarian intervention were both "credible legal bases that may possibly be relied upon in justification of a use of military force … in response to the use of chemical weapons by the Assad regime against the Syrian civilian population."
On humanitarian intervention, Bethlehem explained:On humanitarian intervention, Bethlehem explained:
On the facts as reported, the motivation behind any use of force against the Assad regime would seem properly to be characterised on humanitarian grounds.

Although there is legitimate debate about the existence and scope of a right of humanitarian intervention outside the framework of a UN security council authorisation, the UK has been consistent in maintaining the existence of a narrowly defined right to act in such circumstances.

In my view, on the facts as reported, a limited use of force, necessary to address the use of chemical weapons by the Syrian government, and proportionate to the humanitarian objective of forestalling any further use of chemical weapons, would be lawful under international law.
On the facts as reported, the motivation behind any use of force against the Assad regime would seem properly to be characterised on humanitarian grounds.

Although there is legitimate debate about the existence and scope of a right of humanitarian intervention outside the framework of a UN security council authorisation, the UK has been consistent in maintaining the existence of a narrowly defined right to act in such circumstances.

In my view, on the facts as reported, a limited use of force, necessary to address the use of chemical weapons by the Syrian government, and proportionate to the humanitarian objective of forestalling any further use of chemical weapons, would be lawful under international law.
Whether it would be wise, though, is quite another matter.Whether it would be wise, though, is quite another matter.
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