by Peter Jenkins
Once we came across a man-of-war anchored off the coast.…in the empty immensity of earth, sky and water there she was, incomprehensible, firing into a continent….There was a touch of insanity in the proceedings. — Joseph Conrad
In preparation for debates in the House of Lords and the House of Commons on 29 August (which turned out to be heart-warming advertisements for parliamentary democracy), the British government released the advice it had received from the Attorney General on the legality of military action to deter and disrupt the further use of chemical weapons by the government of Syria.
The essential passage reads as follows:
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 catastrophes 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 [convincing evidence; no alternative; proposed use of force must be necessary and proportionate]
Anticipating this argument on the website of the European Journal of International Law on 28 August, Dapo Akande comes to the conclusion that the doctrine of humanitarian intervention is an inadequate legal basis for the use of force in response to the outrages which took place in the suburbs of Damascus on 21 August.
In describing humanitarian intervention as a doctrine, the British Attorney General is trying to suggest that customary international law provides a legal basis for the use of force for humanitarian purposes. This is, however, far from being the case. The UK is in a small minority in advancing this claim.
Most states consider humanitarian use of force to be contrary to the prohibition on the use of force other than in self-defence that is a feature of customary international law (as well as of the UN Charter, absent specific authorization by the Security Council or in self-defence). For a doctrine to become customary international law, the support of a large majority of states is necessary.Furthermore on 28 April 2006 the Security Council adopted a resolution (1674) of which the ante-penultimate paragraph reads:
Notes that the deliberate targeting of civilians and other protected persons and the commission of…violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security, and reaffirms in this regard its readiness to consider such situations and, where necessary, to adopt appropriate steps.
The meaning could hardly be clearer. In April 2006, the Security Council, of which the UK is a permanent member, took the view that situations akin to that which arose in Syria on 21 August should be referred to the Council, to allow the Council to decide whether the use of force to redress the situation is necessary and would be appropriate.
The outcome of the 29 August debates is seen in Britain as ruling out UK participation in military action against the Syrian government, absent UN authorization or the emergence of a different set of circumstance requiring parliamentary consideration. The shakiness of the government’s legal case played a part in creating parliamentary resistance to UK involvement in current circumstances.
Is there any chance that legal considerations will deter the use of force by the US, given the existence of at least one diplomatic alternative?