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.
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
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.