The British Government’s Legal Justification for Bombing is Entirely False and Without Merit 570

UPDATE Perhaps you will forgive me for pointing out that the argument in the legal opinion by Professor Dapo Akande of Oxford University, published today by the Labour Party, is identical in every respect and in detail to the analysis I published yesterday. So for all the trolls who claimed I do not know international law…

I have published Prof Akande’s summary at the end of this post.

Theresa May has issued a long legal justification for UK participation in an attack on a sovereign state. This is so flawed as to be totally worthless. It specifically claims as customary international law practices which are rejected by a large majority of states and therefore cannot be customary international law. It is therefore secondary and of no consequence that the facts and interpretations the argument cites in this particular case are erroneous, but it so happens they are indeed absolutely erroneous.

Let me put before you the government’s legal case in full:

1.This is the Government’s position on the legality of UK military action to alleviate the extreme humanitarian suffering of the Syrian people by degrading the Syrian regime’s chemical weapons capability and deterring their further use, following the chemical weapons attack in Douma on 7 April 2018.

2.The Syrian regime has been killing its own people for seven years. Its use of chemical weapons, which has exacerbated the human suffering, is a serious crime of international concern, as a breach of the customary international law prohibition on the use of chemical weapons, and amounts to a war crime and a crime against humanity.

3.The UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering. The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) 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;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

4.The UK considers that military action met the requirements of humanitarian intervention in the circumstances of the present case:

(i) The Syrian regime has been using chemical weapons since 2013. The attack in Eastern Damascus on 21 August 2013 left over 800 people dead. The Syrian regime failed to implement its commitment in 2013 to ensure the destruction of its chemical weapons capability. The chemical weapons attack in Khan Sheikhoun in April 2017 killed approximately 80 people and left hundreds more injured. The recent attack in Douma has killed up to 75 people, and injured over 500 people. Over 400,000 people have now died over the course of the conflict in Syria, the vast majority civilians. Over half of the Syrian population has been displaced, with over 13 million people in need of humanitarian assistance. The repeated, lethal use of chemical weapons by the Syrian regime constitutes a war crime and a crime against humanity. On the basis of what we know about the Syrian regime’s pattern of use of chemical weapons to date, it was highly likely that the regime would seek to use chemical weapons again, leading to further suffering and loss of civilian life as well as the continued displacement of the civilian population.

(ii) Actions by the UK and its international partners to alleviate the humanitarian suffering caused by the use of chemical weapons by the Syrian regime at the UN Security Council have been repeatedly blocked by the regime’s and its allies’ disregard for international norms, including the international law prohibition on the use of chemical weapons. This last week, Russia vetoed yet another resolution in the Security Council, thwarting the establishment of an impartial investigative mechanism. Since 2013, neither diplomatic action, tough sanctions, nor the US strikes against the Shayrat airbase in April 2017 have sufficiently degraded Syrian chemical weapons capability or deterred the Syrian regime from causing extreme humanitarian distress on a large scale through its persistent use of chemical weapons. There was no practicable alternative to the truly exceptional use of force to degrade the Syrian regime’s chemical weapons capability and deter their further use by the Syrian regime in order to alleviate humanitarian suffering.

(iii) In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike carefully considered, specifically identified targets in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable. Such an intervention was directed exclusively to averting a humanitarian catastrophe caused by the Syrian regime’s use of chemical weapons, and the action was the minimum judged necessary for that purpose.

14 April 2018

The first thing to note is that this “legal argument” cites no authority. It does not quote the UN Charter, any Security Council Resolution or any international treaty or agreement of any kind which justifies this action. This is because there is absolutely nothing which can be quoted – all the relevant texts say that an attack on another state is illegal without authorisation of the UN Security Council under Chapter VII of the UN Charter.

Nor does the government quote any judgement of the International Court of Justice, International Criminal Court or any other international legal authority. This is important because rather than any treatment, the government makes a specific claim its actions are justified by customary international law, which means accepted state practice. But the existence of such state practice is usually proven through existing court judgements, and there are no judgements that endorse the approach taken by the government in its argument.

The three “tests” set out under para 3 as to what is permitted under international law are not in fact a statement of anything other than the UK’s own position. These “tests” are specifically quoted by Ola Engdahl in Bailliet and Larsen (ed) “Promoting Peace Through International Law” (Oxford University Press 2015). Engdahl notes:

The UK position, that it is permitted to take coercive action under a doctrine of humanitarian intervention when certain conditions are met, is a minority view and does not reflect lex data on the prohibition of the use of force in international relations as expressed in article 2(4) of the UN Charter.

That is undeniably true, and as it is equally undeniably true that a minority view cannot be customary international law, the British government position is utterly devoid of merit.

The Government argument is a classic statement of the doctrine of “liberal intervention”, which is of course the mantra adopted by neo-conservatives over the last 30 years to justify resource grabs. It is not in any way accepted as customary international law. It is a doctrine opposed by a very large number of states, and certainly by the great majority of African, South American and Asian states. (African states have occasionally advocated the idea that UN Security Council authorisation may be replaced by the endorsement of a UN recognised regional authority such as ECOWAS or the African Union. This was the Nigerian position over Liberia 20 years ago. The Security Council authorised ECOWAS action anyway, so no discord arose. The current Nigerian government does not support intervention without security council authorisation).

The examples of “liberal intervention” most commonly used by its advocates are Sierra Leone and Libya. My book “The Catholic Orangemen of Togo” details my experiences as UK Representative at the Sierra Leone peace talks, and I hope will convince you that the accepted story of that war is a lie. Libya too has been a disaster, and it is not a precedent for the government’s legal argument as the western forces employed were operating under cover of a UN Security Council Resolution authorising force, albeit only to enforce a no fly zone.

In fact, if the British government were to offer examples of state practice to attempt to prove that the doctrine it outlines is indeed customary international law, the most appropriate recent examples are Russian military intervention in Ukraine and Georgia. I oppose those Russian interventions as I oppose the UK/US/French actions now. It is not a question of “sides” it is a question of the illegality of military action against other states.

The rest of the government’s argument is entirely hypothetical, because as the liberal intervention doctrine is not customary international law these arguments cannot justify intervention.

But the evidence that Assad used chemical weapons against Douma is non-existent, and the OPCW did not conclude that the Assad government was responsible for the attack on Khan Sheikhoun. There is no evidence whatsoever that military action was urgently required to avert another such “immediate” attack. Nor is it true that the UK’s analysis of the situation is “generally accepted” by the international community, as witness China and Russia voting together in the Security Council yesterday to condemn the attack.

So the British government sets up its own “three tests” which have no legal standing and are entirely a British concoction, yet still manages to fail them.

Dapo Akande, Professor of Public International Law, Oxford University, gave this opinion for the Labour Party…

In the opinion I reach the following conclusions:
1. Contrary to the position of the government, neither the UN charter nor customary international law permits military action on the basis of the doctrine of humanitarian intervention. There is very little support by states for such an exception to the prohibition of the use of force. The UK is one of very few states that advocates for such a legal principle but the vast majority of states have explicitly rejected it.
2. The legal position advanced by the government ignores the structure of the international law rules relating to the use of force, in particular, because a customary international law rule does not prevail over the rule in the United Nations charter prohibiting the use of force. To accept the position advocated by the government would be to undermine the supremacy of the UN charter.
3. Even if there was a doctrine of humanitarian intervention in international law, the strikes against Syria would not appear to meet the tests set out by the government. The action taken by the government was not directed at bringing “immediate and urgent relief” with regard to the specific evil it sought to prevent, and was taken before the inspectors from the Organisation for the Prohibition of Chemical Weapons were able to reach the affected area.
4. If the position taken by the government were to be accepted by states globally, it would allow for individual assessments of when force was necessary to achieve humanitarian ends, with the risk of abuse. It is because of the humanitarian suffering that will ensue from such abusive uses of force, that other states and many scholars have been reluctant to endorse the doctrine of humanitarian action.

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570 thoughts on “The British Government’s Legal Justification for Bombing is Entirely False and Without Merit

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  • Billy Bostickson

    Here is an interesting report from Spiez Lab which will help certain contributors to this forum understand the intricacies of OPCW regulated analysis of chemical warfare agents in samples.

    Detection and Identification of Chemical Warfare Agents in Environmental Samples
    Martin Schär
    SPIEZ LABORATORY, Analytical Chemistry, Austrasse, CH-3700 Spiez
    Email: [email protected]

  • Paul Barbara

    @ Blissex April 16, 2018 at 15:02
    ‘«Russia does not make BZ, but Britain does,»

    That’s a ridiculous argument, the converse of the argument that only Russia makes “novichok”: all these chemicals have well known formulas and they seem easy to make for anybody with an organic chemistry PhD. The only real difficulty is to make them *safely* that is without spilling/contaminating yourself, as they are indeed quite nasty, but chemistry PhDs handle routinely extremely poisonous stuff of all sorts in decently equipped labs, and most (not all…) survive if they are very careful. Bad things still happen, many chemistry departments at many universities have burned down at least once, and several have burned down 2-3 times.’

    Ah, but why was there any BZ there in the first place? Or did Russia try to pin the blame on MI5 by usinf a British-stocked CW that was not lethal? And the Swiss lab also ‘found’ Novichock (which could have been introduced after the blood sample was taken – which would also account for it’s ‘high purity’), but why did the OPCW hide the fact of the BZ?
    BZ would account for their behaviour, the time lapse and their ‘recovering’.
    Luckily. the Swiss lab leaked a copy of the FULL report they gave to the OPCW (hardly unethical; the Russians having signed up under OPCW, they were entitled to the full report) and anyway how would ‘ethics’ trump an attempt to frame Russia, potentially bringing on WWIII?
    Still miles to go on this one!

    • Billy Bostickson

      Yes, indeed, the meeting is at 10am on April 18th at the Hague (OPCW HQ) in the leper Room.

      I fancy there may also be a small “Autonomous” demo taking place to attract media attention, but I can’t promise anything as yet.

      There will be a statement attempting to clarify the BZ issue

  • Inequitable

    Very compelling apparaisal Craig. Worth noting Godfree Robert’s quibbles though in a previous post. It does not matter how the government ‘dresses it up’ they appear to be ‘ultra vires’ and completely exposed without a mandate. The opposition should have a field day on this. Interesting to note that an article in zerohedge even discusses grounds for the impeachment of the PM which would be a first.

  • crispin hythe

    If our insane rulers bomb buildings thought to store chemical weapons, and blow the contents skyward, have they not committed a chemical weapons attack?

    • Tom Welsh

      Plato would like your comment.

      Either they have committed a chemical weapons attack, or they have committed aggression without any justification.

  • ed roomtax

    To teach the may thing a lesson, Vladimir should liberate the Malvinas. Drop a big bomb in the wilderness, then tell the pommie squatters they have 48 hours to get out. Anticolonialism! What’s not to like?

  • David Perkins

    I agree with the above opinions.
    There was no good reason why the attack should have taken place when it did.
    The Government could have waited until the Inspectors report and until debated in Parliament.
    The government has not disclosed any intelligence to support their action.
    The weapons factory hit was not a weapons factory at all.
    There was no urgency, no UN resolution and no military threat to the UK.
    There was no motive for Assad to use chemical weapons as he is winning the war and he knew what the the worlds reaction would be.
    There was no military gain by using these weapons on civilians.
    The largest stocks of chemical weapons in the world not destroyed as required are in the USA.
    The only regional power with the desire to attack Syria is Israel and no doubt Israeli influence on Trump played its part.
    The whole thing is a very poor example of US, UK and French judgement and political leadership

    • Jo Dominich

      David a very brilliant concise summary. Israel is not a member of the OPCW so is not subjected to OPCW inspections – so nobody knows how many stockpiles of chemical weapons they have. There are several questions for me. The first is why, given the false intelligence that started the Iraq war, do the European heads of state still believe the USA and the UK. The second is, why is there such a deep reluctance on the part of the UK Govt to refuse to provide any evidence in both Syria and Salisbury. I have just looked at May’s speech today, she told lie after lie after lie – claiming evidence which is completely falsified and can be easily dismissed just by looking at UN investigations and their outcomes into chemical attacks in Syria. In this regard, she claimed the rebels don’t have access to chemical weapons but, the UN investigation in 2013 found the exact opposite and the report is readily available to read. There are other reports to that would show her lies for what they were. I wonder whether in Europe (not other countries) there is any Head of State out there that can see through these lies, this false intelligent, this false flag attack (notified to the USA and UN by Russia on 13.03.2018. Why hasn’t the intelligence been made known in all this showboating.

  • Roger Wise

    Six years ago I made an appointment to see the then MP for Banbury Tony Baldry, at his official surgery, Baldry refused to shake my hand when I entered the room and used an expletive towards me in his opening gambit,

    Baldry, has had his moments of controversy, but, it was felt that his duty and service was deserving of a Knighthood, Sir Tony, a few years later started to raise his concerns regarding all things Russian at any given opportunity,

    The conveyor belt had started rolling, but who pressed the start button, snouts in the trough, have no moral standards and seek to keep the elite in the position they are accustomed to, while making sure they get more than their fair share.

    Only a radical change to the present system based on true democracy, Chomsky v Baldry – will make any true difference and that must come from the majority.

  • Aslangeo

    First they came for the Afghans – but I was not an Afghan so I did not speak out
    Then they came for the Iraqis – but I was not an Iraqi , so I did not speak out
    Then they came for the Syrians – but I was not a Syrian, so I did not speak out
    Then They came for the North Koreans – but I was not a North Korea, So I did not speak out
    Then They Came for the Iranians – but I was not an Iranian , so I did not Speak Out
    Then they came for my country, and no one was left to speak for me

    with credit to – Martin Niemöller

    Fortunately the Chinese are beginning to understand that they would be the ultimate target of The Anglos

  • Paul

    craig, by now you will have seen the legal opinion tom watson commissioned–very much confirms yours

  • Rhys Jaggar

    Very interesting listening to the Stephen Sackur interview with Sergei Lavrov:

    1) Stephen Sackur has delegated evaluation of evidence to the French Government and belittles Lavrov for doing his own due diligence, especially if it contradicts the French dossier;
    2) Stephen Sackur associates expulsion of diplomats with guilt;
    3) Stephen Sackur assigns value to Boris Johnson rewriting British history concerning 1936 Olympics;
    4) Stephen Sackur uncritically trusts OPCW rather than seeing it as an organisation subject to US diplomatic pressure (rather like the Uk Government in fact);
    5) Stephen Sackur was completely lacking in briefing on the history of Novichoks, their potency and stability and how the presented symptoms of Skripals failed to match those delivered by A-234;
    6) Stephen Sackur talks at Sergei Lavrov, not with him.

    I was rather bemused by the partisan nature of the interview: he should be doing the same to John Bolton, but I am sure will refuse or demand to control the questions.

    All in all, you could tell that anyone less diplomatic than Lavrov would have called him an ignorant prick…..

  • Smiling Through

    Anyone seen news of police progress into the Skripals affair?

    Any person/s of interest named?

    Any arrests?

    Any charges?

    Is this “great threat to our way of life” to evaporate with the sunshine of spring?

  • Heather Stroud

    “In times of universal deceit telling the truth becomes a revolutionary act.”
    Thank you Craig Murray, Vanessa Beeley, Eva Bartlett, Peter Ford and all the other brave truth tellers out there.

    Would one even bomb a chemical factory? Wouldn’t that create a greater danger to the people around there? I don’t think anyone would want Porton Down to be bombed, especially the people of Salisbury..

  • michael riddle

    Thank you Mr Murray, truth may be the first casualty, but with courage and conviction to expose the lies we may undermine the perpetual war for profit. See you in the Whistleblowers arms doon the rabbit hole…viva la revolucion!

  • Diarmuid Breatnach

    I agree with the analysis thanks. But I wonder if humanitarian invasion can sometimes be justified, as for example with Vietnam’s invasion of Cambodia to put an end to the Pol Pot murderous regime. Of course, this is nothing like what happened in the case of the bombardment of Syria, invasions of Iraq and Afghanistan etc, neither in intention nor in effect.

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