This week, it is likely that the Commons will be asked to approve RAF strike missions against ISIL/Daesh targets inside Syria. LDV readers will be familiar with Tim Farron’s five tests but here I’m going to focus only on the first: would such strikes be legal?
(NB. If it is, each target would be subject to the normal targeting rules of proportionality – ie, the use of force must be proportionate to the military advantage to be gained, and discrimination, – ie, that you may only attack military and not civilian targets.)
A little history first. The use of force between states had been a normal part of diplomacy throughout history until 1945, when aggression was banned by the UN Charter under Article 2(4), which reads:
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.
This was revolutionary, and whilst it has not stopped conflict since 1945, it has provided a legal basis for acting against aggression when there is international agreement – Korea in 1950 and Iraq in 1991 being the prime examples.
There are three exceptions to this rule. The first is when the Security Council authorizes the use of force. This is allowed under Article 42, in Chapter VII of the Charter. The second is self-defence, including collective self-defence, in Article 51, also in Chapter VII. In the words of the UN itself: “Article 51 of the Charter provides an exception to the prohibition of the use of force as stipulated in Article 2 (4)”.
The third is the humanitarian exception, known as Responsibility to Protect (R2P) which provides regional organizations with the right to use force without Security Council authorization to stop humanitarian disasters. However, R2P is not relevant here.
The RAF is already conducting airstrikes in Iraq against ISIL/Daesh targets at the request of the Iraqi government. This is unambiguously legal, as it is an act of collective self-defence under Article 51. In my view, the Iraqi request would also extend to attacking ISIL/Daesh targets in Syria which are directly contributing to ISIL/Daesh military activity in Iraq, though the UK Government has not elected to extend the RAF’s airstrikes in this way.
There was surprise in September when Reyaad Khan was killed by an RAF strike in Syria, not because he was involved in ISIL/Daesh attacks in Iraq, but because he allegedly was plotting attacks in the UK. This was justified by the UK as self-defence under Article 51. You will note that the UK letter claims that Mr. Khan represented an “imminent” threat, reflecting the so-called Caroline test, where the need for a pre-emptive action must be “instant, overwhelming, leaving no choice of means, and no moment of deliberation”. It is for the Government to demonstrate that this was the case in the attack that killed Mr. Khan, otherwise that specific attack would have been an illegal use of force.
Thus, prior to the adoption of UN Security Council Resolution 2249 on 20 November 2015, it would’ve been legal in my view for the RAF to attack ISIL/Daesh targets in Syria if they were directly contributing to military activity in Iraq, or in the much narrower case of a truly imminent threat to the UK.
Paragraph 5 of UNSCR 2249 sets out the Security Council’s authroisation for the use of force. It reads in part:
Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq
It does what it says: UN Member States – obviously including the UK – are authorised to attack ISIL/Daesh targets across Syria. Therefore, the difference before and after UNSCR 2249 is simple: to be legal, the UK no longer has to demonstrate a nexus with Iraq or the UK.
With the passage – unanimously – of UNSCR 2249 on 20 November, I believe that, subject to the proportionality and discrimination tests, RAF strikes on ISIL/Daesh are legal anywhere in Syria and Iraq.
* Toby Fenwick is a Research Associate of the British American Security Information Council (BASIC), has written extensively on the UK Trident programme, and served on the party’s last Trident Working Group. This article is written in a personal capacity.
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27 Comments
They may be legal but they are wholly immoral.
A legalistic view is insufficient..
Two other tests are necessary a) would it be moral ?
b) would it be feective ?
b) typo effective
Mick / David
Thanks for your comments. The first test must be the legality. I disagree that they’d be “wholly immoral” – in my view it would depend on what they were targeting and how effective they were in removing Daesh – who aren’t exactly cuddly liberals to those who oppose them. Indeed, given the hell on earth of the Yazidis et al, I’d argue that it would be moral to defeat Daesh (and remove Assad), and help Syria rebuild itself.
The bombing of Dresden is still controversial. But the civilian population were supportive of the Nazi regime and the enemy in fact and law. The civilian population of Raqqa are themselves victims of ISIS.They did not invite them in and are subject to their coercion. We never bombed the civilian populations of Occupied France, Belgium, Holland or other occupied territories.
This is a typically well written and informative article from Toby. However in this particular case I think the facts contradict Toby’s conclusion. UN resolution 2249 (2015) could have expressly authorised the bombing of IS in Syria by countries which the Syrian government has not invited to do so (ie UK, US, GCC Allies, and Turkey). It could also have made it unambiguously clear that such an authorisation was being given under Chapter VII of the Charter. It very clearly and unambiguously has omitted to do either. It does not ‘authorise’ it ‘calls on’. This is a world of difference in international law and the code of UN Resolution wording. It ‘calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law..’. The latter point is key … in compliance with international law. It thus fails to authorise and calls on such action under existing international rules. Under existing international rules the Iraqi government invited the US and others to bomb insurgents including IS, as a hangover from the 2003 invasion. A few weeks ago the Iraqi government also gave similar permission to the Russian Government and allowed the Russians to set up an intel centre in Baghdad. So 2249 provides support and legitimisation for those already taking action in Syria in Iraq but under international law without expressly giving additional permission for ‘uninvited’ attacks in Syria. There is also no precedent in international law for a force invited in one country (ie the US in Iraq) to attack a neighbouring country uninvited (ie Syria) on the basis that insurgents are crossing the border to fight in the first country (ie from Syria to Iraq) and the host country has failed to stop them. This was tried out some months ago, but the potentiality for such vicarious authorisation was eliminated on the fact that the countries trying to use this justification (eg USA) had clearly contributed to the inability of the host country (the Assad regime) to stop the cross border fighting. There is another potential legitimate route for the UK and US; Article 5 of the NATO treaty (in effect, when one is attacked, all are attacked) following the Paris attacks. However France has not invoked Article 5. With apologies to Toby, Resolution 2249 (2015) does many things but it clearly does NOT authorise the UK to bomb Syrian territory uninvited. It could have done so but it did not.
I might add that I DO support military action against IS, but not uninvited in Syria since that would be unlawful at present. . It is required to deal with the flow of personnel, military kit, money and oil across the border into Turkey from Iraq (and Syria) – but in Iraq and on the Turkish side. It is well known that the Turkish government has been taking a ‘permissive approach’ to IS’s oil business. Of equal importance is the need to stop the flow of arms and other support to IS via GCC territory up the Euphrates river. The Kurds need more military support also in Iraq, especially in working with the Iraqi army to cut off arms and supplies to IS in Mosul, in such a way as to ensure there is not a post-IS battle between Kurds and Arabs for control of this historic city of 1.5m people..
@Martin: any attack would have to show that the harm caused was proportionate to the military advantage gained, and the Geneva Conventions bans any attack on civilians or civilian objects unless they are being used for military purposes (and there are special requirements – e.g., sufficient warning). It is hard to see how Dresden or Tokyo would have met these (postwar) requirements.
@Paul: always good to get your as ever well informed views.
On the Ch VII point, it is a relatively new innovation that a reference to Ch VII is included in the text of the resolution, and there is no black-letter requirement that it do so. Moreover, given “all necessary means” in OP5 means the use of force, and the UNSC can *only* authorise force under Art 42, either 2249 (2015) is a Ch VII resolution or it is meaningless; I favour the former reading, not least because UNSCRs 82 – 85 (1950) (authorising the use of force in Korea) did so without mentioning Ch VII, Art 42 or even “all necessary means”. I’m afraid that it is very clear that OP5 of 2249 (2015) does make UK attacks in Syria legal.
The phrase in OP5 that action must be “In compliance with international law” is rather unnecessary statement of the obvious – the UNSC cannot authorise illegal action, nor should it try to do so. What it is doing in there is anyone’s guess – the draft procedure of these things, especially in a hurry, doesn’t always lead to the more elegant possible output, especially when you’re working to keep everyone on-board for a unanimous resolution, as 2249 (2015) is.
I’d also politely disagree that a NATO Article 5 declaration by France provides the basis for attacks in Syria. Strictly speaking, a NATO Art 5 declaration would do is to allow collective self-defence under Art 51 of the Charter – which would have real problems in practice as it would have to show Caroline immediacy in order to take action in Syria – and “instant, overwhelming, leaving no choice of means, and no moment of deliberation” is a pretty high bar for each and every mission/target.
Finally, there have been examples of collective self-defence crossing international borders where another state has been unwilling or unable to stop infiltration – the most famous example is US attacks against the NVA/VC in Laos, having gone into South Vietnam at the request of the South Vietnamese government.
Its probably legal for all of us to pop over to Switzerland and top ourselves in a dignitas clinic. Legal does not equal sensible…
Toby,
Why do you say that the humanitarian intervention principle (R2P) is irrelevant here? I was enjoying your article and disappointed to see you duck this – I know humanitarian intervention is controversial but surely the conditions for it exist in Syria today? There is a man-made humanitarian disaster in Syria today, surely?
John McHugo
@John:
Thanks for this: R2P is important, and personally I believe that a strong case for its use has existed since 2013. However, I have omitted it here as no one is arguing that the proposed military action is based on it. Happy to discuss, as ever.
Toby
aye, aye.
Israel has conducted air-strikes against Syria but Israel and Syria are technically at war with each other. Airstrikes against Syria by other countries are still acts of war with the Syrians still entitled to defend themselves.
‘There is also no precedent in international law for a force invited in one country (ie the US in Iraq) to attack a neighbouring country uninvited (ie Syria) on the basis that insurgents are crossing the border to fight in the first country (ie from Syria to Iraq) and the host country has failed to stop them.’ If this were a viable reason to attack Syria the n it would also put Turkey very firmly in the cross hairs as well as numerous other European states. Further Para 5 of 2249 just says that we should do the right thing and within the law. It does not say or imply that that law has in any way been modified. In order to read it as authorizing attacks one has to massively inflate the microscopic ambiguity in it’s language and then willfully misinterpret it.
For those of you interested in an alternative analysis of world affairs checkout http://www.counterpunch.org
@Matt Donald
‘There is also no precedent in international law for a force invited in one country (ie the US in Iraq) to attack a neighbouring country uninvited (ie Syria) on the basis that insurgents are crossing the border to fight in the first country (ie from Syria to Iraq) and the host country has failed to stop them.’
This simply isn’t true, I’m afraid.
Toby, that was not my assertion, it was quoted from above. My point was that if we are to use that argument as a basis for attacking Syria it could easily be applied to other countries.
“This simply isn’t true, I’m afraid.”
Then what is the precedent?
Tally Ho Bombs Away.
But bombs on whom?Bombing Daesh may well looked justified, the women and kids of sympathetic Sunni Muslims who populate the cities is not. War is a messy business, mistakes are made.Why do you think the Taliban made a come back in Afghanistan.
Of course the real target is the Assad regime and the legality is blurred.
Assad was quite a pall of the west until recently. Confused by this apparent readjustment of opinion, I recently had the opportunity to ask a recent British ambassador to Syria whether Assad is as he is portrayed by our governments and media. ‘No’ was the emphatic response, ‘this is an appalling and hypocritical lie’. Given that he as actually quite popular amongst many Syrians and that it is currently in the west’s interest to carve up Syria for the sake of transnational fuel distribution, it might be worth taking all this bluster about his inhumanity with a pinch of salt. We are currently entering very Familier to the motivations to invade Iraq and destroy Libya. Neither of these escapades brought anything but horror to those we claimed to be saving.
As I have suggested earlier, please have a look at counterpunch for a slightly more nuanced and less motivated appraisal of the current Syrian crisis.
Sorry about the linguistic knot I tied part way through previous post. I was trying to say that we’ve been here before with WMD in Iraq etc.
Matt
Yes Europe can’t remain dependent on Russian gas ,can it?
‘Assad was quite a pall [sic] of the west until recently’
No, he is not and he never was. You are probably thinking of someone else, Hosni Mubarak or even Saddam Hussein perhaps. But Arab dictators are not interchangeable pieces. Ba’athist Syria has, since the 1960s, been too closely aligned with the USSR (and later with Russia) to be palatable to NATO; since the 1980s, its alignment with Iran and with Shi’ite forces in Lebanon has made it even more problematic for ‘the West.’ None of these relationships are ‘recent.’
Thank you Paul and Toby. Your comments have helped my understanding about the UN resolution 2249 (2015).
I signed the petition not to bomb and don’t envy any politician making their choice of how to vote today.
David
Syria was part of the coalition of the Gulf war 1991. Relations with the US warmed to some extent until the start of the civil war.
Joan
To be fully legal a UN resolution needs to be passed to specifically authorise action in Syria.
Manfarang, thanks also.
I suggest that politics has never been so interesting, relevant and open.
It should be compulsory in schools along with first aid, swimming ……..
Toby,
Thanks for getting back to me on Humanitarian Intervention/R2P explaining why you didn’t cover it. Personally, I think it is a great pity no one is arguing on that basis.
John
Joan
And there is nothing like traveling the world to see these places and people.