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.