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Creative reasoning is being deployed to justify the legality of military intervention in Syria. But the the legal case for strikes against Syria is far from being either obvious or clear-cut.
Mr Dominic Grieve, Britain's Attorney General and chief legal advisor to the Crown, has told his country's Cabinet that military strikes against Syria 'would be legal' under international law.
It is clear from the Guidance that a military intervention in Syria is legal belongs to that special category of 'creative reasoning' which is often supplied by bright, expensive lawyers to clients who have all the wealth but no persuasive legal case: it is a concoction of selectively-chosen facts mixed with a few high-sounding principles which, with a bit of luck, would bamboozle anyone who cares to read it. For the reality is that the legal case for strikes against Syria, and especially for the limited, punitive strikes which are now being contemplated, is far from being either obvious or clear-cut.
To start with, it's worth remembering that, as was the case with almost every single international military intervention since the end of the Cold War more than two decades ago, Western governments first decide that they wish to use force and only then scramble for legal justifications, rather than the other way around. Politicians may have decided to act in Syria out of strategic or tactical considerations or even out of sheer frustration, but compliance with international law is not the driver to such actions. And, invariably, the legal case is fuzzy.
The Self-Defence Argument
The most tempting argument to make in such cases is often that of self-defence, an inherent right of every sovereign nation and a principle which, as the United Nations Charter explicitly acknowledges, predates the creation of organisation itself and is, therefore, not always subject to the same panoply of restrictions which have been created to the use of force since the end of the Second World War. There have been uncorroborated media reports that at least part of the British case for a strike against Syria now is 'to protect British interests in the region, including the defence of the UK's sovereign base in Cyprus, which is thought to be potentially within range of President Assad's Scud missiles'.
But the logic of this argument is thinner than air. To invoke the need to use force in self-defence, the alleged threat must, among others, be grave and immediate, brooking no delay. It's patently obvious that this is not the case with Syria now: presumably, the British knew for at least two decades that Syria had a ballistic capability to hit at their sovereign bases, and they also knew for more than the last two years that this capability was being used in a hostile environment, against rebels.
There is no evidence that President Assad is about to fire any of his arsenal against any Western target; indeed, the only countries which may invoke the principle of acting in self-defence now may be Israel, which was directly threatened by Mr Assad in a speech earlier this week and Russia, which has a large number of its own citizens inside Syria, now being threatened by Western military strikes. In short, if the British government wants to avoid tying itself in knots and exposing itself to the ridicule rightly heaped on former Prime Minister Tony Blair's claim that Saddam Hussein's Iraqi missiles could reach British soil or installations 'in 45 minutes', it will be well-advised to drop the self-defence argument in the case of Syria.
Deterring any Further Use of Chemical Weapons
A weightier - or at least a more intellectually-coherent - argument for military action is that of the fear that if no international response is forthcoming to a chemical attack which is believed to have killed as many as 1,400 people in Damascus last week, a crucial, long-standing distinction between conventional means of warfare and weapons of mass destruction will become blurred, potentially encouraging others to resort to similar chemical attacks. Action is, therefore, required not only because of the enormity of the massacre, but also because of its implications on global security, because of a need to restore the element of deterrence against the use of chemical weapons.
That is, essentially, the argument put forward by British Foreign Secretary William Hague earlier this week, when he said in reference to the atrocity in Syria that 'this is the first use of chemical warfare in the 21st century. It has to be unacceptable, we have to confront something that is a war crime, something that is a crime against humanity. If we don't do so, then we will have to confront even bigger war crimes in the future'. The US argument also runs along similar lines: President Assad's alleged use of chemical weapons violated 'the general law of war' while the use and proliferation of such weapons represented 'a threat to America's core national interests', is how the US State Department's spokesman put it earlier this week.
But there are serious problems with this argument as well. Western governments skirt around the basic fact that Syria is a party to neither the 1972 Biological Weapons Convention, nor the 1993 Chemical Weapons Convention, nor the so-called Rome Statue of the International Criminal Code (which also reinforces the taboo against chemical weapons) and cannot, therefore, be held accountable for obligations it has never accepted.
True, Syria is a party to the so-called Geneva Protocol of 1925, which bans the use of toxic gases in wars. But that document is usually interpreted as having been designed with inter-state wars in mind, not with internal conflict of the kind we are witnessing in Syria today; that's why the subsequent international efforts to complement the Geneva Protocol with other obligations has been undertaken, and most of those have not been accepted by Syria. A stronger case can be made - and is being made by the International Committee of the Red Cross - that the prohibition against chemical weapons has now become customary international law, namely that it is so entrenched that it has acquired the status of an obligation applying to any sovereign state, whether it is party to a specific treaty about that topic or not. An even stronger case can be made that the way the Syrian regime dealt with its own citizens constitutes a grave violation of the Geneva Conventions of 1949, which prohibit the indiscriminate killing of non-combatants, and apply specifically to civil wars, like Syria's today.
But even if all these arguments are correct and stand up, they do not amount to a justification for the US, Britain and a handful of other, self-proclaimed members of the 'international community' to take it upon themselves to use force in order to uphold these principles. Nor is it very clear how the Syrian government can be held accountable for gassing its people just because the US and a handful of other allied government claim to have 'irrefutable' evidence to that effect, even before a UN team of inspectors on the ground have produced any report on their own investigation. Furthermore, establishing the fact that a sovereign state has violated international or bilateral obligation cannot be held to mean that other nations can take it upon themselves to enforce these obligations through the use of force, or launch 'punitive' expeditions.
Humanitarian Arguments and the Responsibility to Protect
A more imaginative argument is that the action against Syria is motivated by the 'Responsibility to Protect' idea which rose on the global agenda over the last two decades, in response to a manifest need to act in circumstances when a state is either unwilling or unable to protect its people. The horrors of Rwanda, the Yugoslav wars of the 1990s and Darfur, to name but a few: in all these conflicts, earlier action by the international community could have certainly saved lives, and may have prevented some conflicts altogether.
R2P - as it is now generally known - was initially elaborated by a committee of experts in 2001, and subsequently endorsed by the UN General Assembly in 2005. But, as is often the case in international law, R2P's intellectual roots go back a millennia, to the customary 'just war' concept. As refined by generations of jurists and practice, the 'just war' theory argued that, under certain conditions - such as a grave danger to international security or to a group of people, the exhaustion of all other forms of conflict-management and a reasonable prospect of success - a military intervention could be regarded as 'humanitarian' and therefore permissible, in the sense that it served a good moral purpose.
However, quite apart from the fact that the legal validity of R2P is heavily contested by key countries such as Russia and China as well as scores of developing nations, it is difficult to see why a 'punishment' operation of the kind envisaged in Syria will help protect the people of that country from the tender mercies of their rulers or, again, why it falls to just a handful of states to enforce this rule without bothering to create a wider international consensus, and against all the evidence that the true international community - that represented through the UN Security Council, most emphatically does not see matters in the way they are seen in London, Paris or Washington. Abusing the R2P concept, or transforming it into the catch-all justification for any wanton use of force which cannot be justified under any other international law criteria is a gross disservice not only to the UN and its agencies, but also to future humanitarian crises.
And the same applies to the increased usage over the last few days of the argument that a Syria operation may be justified so-called 'Kosovo Precedent', the decision in 1999 to go to war in the former Yugoslavia in the teeth of Russian opposition and despite the absence of an explicit UN Security Council mandate. For, quite apart from the fact that two wrongs don't make a right, the basic fact remains that, even if the Kosovo operation was justified on the grounds of averting what at that time seemed like genocide, there is very little doubt that the Kosovo war itself violated the provisions of the UN Charter, and considerable doubt that the same conditions which prevailed in Yugoslavia in 1999 are applicable to Syria today apart, perhaps, from the frustration of Western governments with the current situation.
None of this is to suggest that the Western powers now contemplating action in Syria are devoid of all arguments. A good case - at a more profound level - can be made that the UN Security Council is not the absolute, ultimate arbiter of the use of force, in all cases: force was used before the UN was invented, international law existed centuries before even the League of Nations was conceived, and the UN Charter itself has never claimed to substitute for customary international law. True, the UN Security Council is the most important institution authorising the use of force, and ignoring it - as some Western governments are now proposing to do in Syria - is a dangerous impulse which must be resisted under most circumstances. But those who accuse the West of destroying the credibility of the UN Security Council will do well to point an accusing finger at Russia and China, the two countries which have blocked any action on Syria by using their veto powers. The credibility of the UN Security Council is not only damaged when it is by-passed; it is also damaged when the organisation is paralysed by countries such as China and Russia. So, if China and Russia value their veto power, then they must also learn to use their vetoes sparingly. That is a significant argument which should be put forward by Western governments much more frequently.
But, ultimately, this is also a political argument for new norms in international behaviour; it's not a legal argument for the action being contemplated in Syria. For the truth is that, although clever lawyers will always find a wheeze, the Syria operation has little justification in international law.
1. For a longer discussions of the opportunities and dangers in using R2P to justify operations which cannot be otherwise justified see RUSI, Short War, Long Shadow: The Political and Military Legacies of the 2011 Libya Campaign.