Would a British attack on Syria be lawful?

With the announcement that Parliament is to be recalled for an emergency session this Thursday we seem to be heading for involvement in another Middle Eastern war.

Before the 2003 Iraq war Tony Blair and his government went to elaborate lengths to find a legal justification for joining the United States attack on Iraq. The then Attorney-General, Lord Goldsmith, swung first one way and then the other on the question of whether the invasion would be legal. Presumably the current Attorney-General, Dominic Grieve, has been asked for his opinion on the legality of an attack -perhaps with cruise missiles and bombers – on Syria.

Mr Grieve, an honourable and humane man whose high regard for the rule of law is self-evident, will not have an easy task.

Before answering the question, he will need to clarify it somewhat. An action that is lawful under domestic law might nevertheless be unlawful under international law. Domestic law is reasonably well-established. The Queen is able to make war under the Royal Prerogative, without reference to Parliament. Of course Her Majesty acts on the advice of Her ministers, so if the Cabinet decides to launch an attack on Syria then under UK law it would almost certainly be acting lawfully, even if the House of Commons votes against military action, notwithstanding that such a course of action would be politically suicidal.

The position under international law is much less clear. Speaking on Radio 4’s Today programme yesterday the Foreign Secretary assured us that any military action would be “in accordance with international law.” He was somewhat less clear in spelling out which principle of international law would actually provide such justification.

To attack another country without lawful cause constitutes the international crime of aggression. That was one of the counts against some of the Nazi war criminals at Nuremburg.

It was a crime even before the establishment of the United Nations, and its illegality was put beyond any doubt by Article 2 (4) of the UN Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Air strikes on Syria would undoubtedly constitute the “… use of force against the territorial integrity or political independence of” Syria, and therefore would, prima facie, place Britain (and any other country that participated) in breach of the UN charter, and potentially render them guilty of the crime of “aggression.”

The most obvious way in which otherwise unlawful military action could be made lawful would be by an appropriate resolution of the UN Security Council. The involvement of Western forces in the Korean war, for example, was clearly legal for this reason. More recent examples include the somewhat ill-fated American action in Somalia, the first Gulf war and the 2011 bombing campaign against President Gadaffi’s Libya. We can probably assume, given the attitude of Security Council members Russia and China, that the chances of the UN passing a resolution unambiguously authorising an attack on Syria are virtually non-existent. Nor, as in the case of the second Gulf war, do there appear to be any UN resolutions that are, if not explicit, at least capable of being construed in such a way as to justify the use of military force.

So, assuming that the authorisation of the UN would not be forthcoming, what other legal justification for joining an armed conflict against Syria could there be?

Sovereign nations are, of course, entitled to use force in self-defence. This is recognised by Article 51 of the UN Charter:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In English or American law a person does not have to wait to be attacked before he defends himself. The same rule of “anticipatory self-defence” may well apply in international law although that is somewhat less clear. The British Government’s long-standing position, which was last spelt out in 2004 by Lord Goldsmith, the then Attorney General, has been that a country does have the right to use force in self-defence if an attack against it is imminent. It would no doubt have been part of the justification for the use of Israeli jets to enter Syria in July and bomb what may have been Russian made missiles bound for Hezbollah.

However, whilst the threat to Israel from both Syria and Hezbollah might be obvious, the threat to Britain from Syria is much less so. Mr Assad has made no threat to launch his missiles at this country, nor would he have the capability to do so.

So neither UN authorisation nor self-defence are plausible legal justifications for any action that might be anticipated. Instead Mr Hague seemed to be implying that the legal basis would be either to punish Syria for using illegal weapons, or to provide “humanitarian” assistance.

The nub of the issue, is of course, Mr Assad’s chemical weapons. Syria’s mere possession and even production of chemical weapons is probably unlawful, although given that it is one of five countries in the world (along with North Korea, Angola, South Sudan and Egypt) that have not signed the Chemicals Weapon Convention there may be some room for argument. The use of those weapons, however, is another matter. Patently the deployment of such indiscriminate weapons to kill civilians, including large numbers of children, would be illegal, constituting at the very least a “war crime” under Article 8 of the Rome Statute of the International Criminal Court. No-one pretends otherwise: Mr Assad’s position is not that he was justified in using them but that he did not do so.

If it is conclusively established – and in the mind of Mr Hague and Secretary of State Kerry it seems that it has been – that it was the Syrian government that used the chemical weapons, it follows that the Syrian government has committed a war crime. It is quite likely that unless stopped it will do so again. With Mr Obama having announced that the use of chemical weapons would amount to a “red line” he would be humiliated if he was then seen to ignore their usage. Even so, these facts alone do not provide a justification for Britain to bomb Syria. Just as a person cannot lawfully assault, say, a murderer in order to punish him, so in international law there is no principle that authorises one country to “punish” another for its crimes, however justified that punishment might be.

Nevertheless, under English law a person is allowed to use reasonable force not just to defend himself but to protect others. If I see my neighbour beating his wife or spraying acid over his children, I am entitled to intervene, not in order to punish him but in order to use reasonable force to prevent him from committing a crime, and to protect the wife and children. If the same holds true in international law then there, perhaps, would be a legal justification for attacking Syria. But there is grave doubt about whether it does.

It has been suggested, not least on Radio 4’s Today programme this morning by the shadow Foreign Secretary Douglas Alexander, that the precedent of the NATO intervention in Kosovo – undertaken without UN authority – provides a clear legal precedent for lawful military action to protect innocent civilians being massacred. It does nothing of the kind.

At the time of the Kosovo intervention NATO was mindful of the dubious legality of what it was doing. At a press conference in July 1999 the US Secretary of State Madeleine Albright was asked whether it was possible to see it as a precedent for the use of force against a nation in other regions. Her reply made it clear that she did not regard it as such:

“… everything that we know from having followed the Kosovo issue very carefully is that it was a unique situation sui generis in the region of the Balkans, following on a series of actions that actually began in 1991 back to 1989 with the kinds of actions that Milosevic took. It is a unique situation for the Balkans. And also it is within an area where NATO would function under normal circumstances, and I think it’s very important while drawing — as we study the lessons of Kosovo, not to overdraw the various lessons that come out of it.”

A senior lawyer in the State Department at the time, Michael J Matheson, has been even clearer:

“… NATO decided that its justification for military action would be based on the unique combination of a number of factors that presented itself in Kosovo, without enunciating a new doctrine or theory….

“This was a pragmatic justification designed to provide a basis for moving forward without establishing new doctrines or precedents that might trouble individual NATO members or later haunt the Alliance if misused by others. As soon as NATO’s military objectives were attained, the Alliance quickly moved back under the authority of the Security Council. This process was not entirely satisfying to all legal scholars, but I believe it did bring the Alliance to a position that met our common policy objectives without courting unnecessary trouble for the future.”

Essentially the United States position was that even if the Kosovo war was illegal (or, more politely, “not entirely satisfying to all legal scholars“), it was still legitimate; and in any event it should definitely not be seen as setting a precedent.

The British Government’s position, enunciated at the time most clearly by Tony Blair in his 1999 Chicago speech, was that there is an international legal right to intervene to prevent atrocities. If there is such a right it is far from universally accepted. Considering the Kosovo intervention in 2000, the House of Commons Foreign Affairs Committee heard evidence from a number of eminent lawyers before concluding:

“… at the very least, the doctrine of humanitarian intervention has a tenuous basis in current international customary law, and … this renders NATO action [in Kosovo] legally questionable.”

Turning back to Syria, barring any unexpected UN resolutions, the only possible legal basis for intervention is this fuzzy and legally questionable doctrine of humanitarian intervention, based upon the dubious precedent of Kosovo, a situation which was expressly said at the time not to have created a precedent.

None of that, of course, means that bombing Syria would be morally wrong. The clearest case for intervention has been made in today’s Times by none other than Tony Blair, although it is striking that his persuasive argument makes no reference at all to international law.

But if Mr Grieve’s advice is that there is no clear legal basis for intervention it does suggest that any intervention should only be contemplated if we are reasonably sure that it will in fact improve rather than worsen the plight of that country’s unfortunate citizens.