The emptiness and the irrelevance of the legal case for bombing Syria

The UK government’s legal position on Syria says:

If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided three conditions are 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 need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

This is political waffle. One dead giveaway it where says evidence has to be accepted by “the international community as a whole”. No such entity exists. Then the talk about what is “objectively clear” and what is “necessary and proportionate” – who decides? It doesn't say. Not even the non-existent international community.

But then, a fair amount of international law is political waffle, so maybe that’s OK.

The “doctrine of humanitarian intervention” is not a legal document; it’s a family of related political opinions. Roughly, the idea is that it can be justified to use force against another government when that government is inflicting atrocities on tis own people. This upsets the sanctity of national sovereignty, but many people – me included – think this is sometimes justified. National sovereignty can be a bulwark against colonisers, but it can also be a cage for the subjects of tyrants.

The key thing is that this justification is moral or political. It is not legal. The UN charter continues to insist that force may be used only in self-defence or when approved by the Security Council acting under chapter VII of the charter, which covers the use of force.

There are, though, official documents that support the principle. Most notably, Security Council resolution 1674, in 2006, which:

Reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity

And the key part of 2005 World Summit Outcome Document says:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

This is all well and good, but it still puts the Security Council firmly in charge. And it doesn't commit the Security Council to do anything in any particular case if it doesn't want to. It’s just a statement of potential willingness.

You might say that if the Security Council fails to live up to the aims it has set itself, then that makes it legitimate for others to act. But legitimate is not the same thing as legal. The word gestures towards legality, but also towards morality and popularity.

In practice, what all this amounts to is that world leaders want to do what they want to do, and they want to do it while claiming they’re acting within international law. They want to claim that because it will help to give the impression that what they’re doing is the right thing. They know that no body will ever rule their actions illegal, so they can say more or less what they want on that front and can dismiss any disagreement as politically motivated or subjective opinion.

None of this is to judge whether airstrikes against Syria would be on balance good or bad. Nor is it to endorse the Security Council as a fine collection of wise, well-intentioned, disinterested adjudicators.

All I’m saying is that this “legal” case is purest political humbug.

 

 

Update:

 

Today’s parliamentary debate has shown a lot of consensus on the need to pay lip service to legality.

 

First, David Cameron: 

The very best route to follow is to have a chapter VII resolution, take it to the UN Security Council, have it passed and then think about taking action. … However, it cannot be the case that that is the only way to have a legal basis for action, and we should consider for a moment what the consequences would be if that were the case. We could have a situation where a country’s Government were literally annihilating half the people in that country, but because of one veto on the Security Council we would be hampered from taking any action. I cannot think of any Member from any party who would want to sign up to that. That is why it is important that we have the doctrine of humanitarian intervention, which is set out in the Attorney-General’s excellent legal advice to the House.

I agree with the spirit of this, but he really is skating on the very edge of pretending to care about legality here. ‘That would be awful and we’d all hate it’ is not a legal principle.

 

Then, Ed Miliband. Despite Labour’s disagreement with the government, on this point they are as one:

…there will be those who argue that in the event of Russia and China vetoing a Security Council resolution, any military action would necessarily not be legitimate. I understand that view but I do not agree with it. I believe that if a proper case is made, there is scope in international law—our fourth condition—for action to be taken even without a chapter VII Security Council resolution. Kosovo in 1999 is the precedent cited in the Prime Minister’s speech and in the Attorney-General’s legal advice; but the Prime Minister did not go into much detail on that advice.

 Perhaps because there was not much detail to go into.

 

Nick Clegg, of course, holds the government line, but what really struck me on the Lib Dem side was Saint Menzies of Campbell, who made his name denouncing the Iraq war as illegal. Today he said:

The effort to achieve a resolution under chapter VII is a vital component of the doctrine of the responsibility to protect, because if no such resolution is achieved—here, I agree with the Attorney-General—we turn to what was once called humanitarian intervention and now is called responsibility to protect. It is a fundamental of that doctrine that every possible political and diplomatic alternative will have been explored and found not to be capable.

 They all agree: Security Council resolutions are optional, and anything they do is legal because they’re good people.