Breaking: UK Government Discloses Legal Rationale for Syria Intervention

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In more breaking news today, the UK government officially endorsed humanitarian intervention as a legal basis for using force against Syria. The full (and quite brief) statement can be found here, and is also reproduced below the fold. While it is not supported by a detailed legal analysis, it sets out three legal conditions for the use of force in a humanitarian intervention without UN Security Council authorization, and finds that Syria fulfils these criteria on the facts. This is as formal an expression of opinio juris by the UK as is possible, and probably the most official endorsement to date of humanitarian intervention (note also the absence of any reference to R2P).

I fully ascribe to Dapo’s analysis from his post yesterday, and have little to add in that regard: humanitarian intervention is not permissible in international law as it stands today, on 29 August 2013. The key issue for me here is how the UK is essentially trying to change international law by asserting a position and waiting to see how other players will react and possibly validate its view; the conceptual problems that Dapo points to aside, this is essentially how customary law works. I’d also refer readers to an excellent 1994 piece by James Crawford and Thomas Viles called ‘International Law on a Given Day’, on custom as ex-post facto rationalization, which is excerpted in part here.

UPDATE 1: The language of the UK guidance with regard to the three criteria reproduces almost verbatim an October 1998 FCO memo in respect of the impending intervention against the FRY, which is itself quoted in this article by Adam Roberts at p. 106.  One key difference between the two memos is that the 1998 uses UNSC resolution 1199 and UN reports as convincing evidence of an impending humanitarian catastrophe, and this is missing with respect to Syria.

UPDATE 2: Dapo and Philippe Sands discuss the problems with the UK government’s rationale in the Guardian here.

The UK statement in full:

  1. This note sets out the UK government’s position regarding the legality of military action in Syria following the chemical weapons attack in Eastern Damascus on 21 August 2013.
  2. The use of chemical weapons by the Syrian regime is a serious crime of international concern, as a breach of the customary international law prohibition on use of chemical weapons, and amounts to a war crime and a crime against humanity. However, the legal basis for military action would be humanitarian intervention; the aim is to relieve humanitarian suffering by deterring or disrupting the further use of chemical weapons.
  3. The UK is seeking a resolution of the United Nations Security Council under Chapter VII of the Charter of the United Nations which would condemn the use of chemical weapons by the Syrian authorities; demand that the Syrian authorities strictly observe their obligations under international law and previous Security Council resolutions, including ceasing all use of chemical weapons; and authorise member states, among other things, to take all necessary measures to protect civilians in Syria from the use of chemical weapons and prevent any future use of Syria’s stockpile of chemical weapons; and refer the situation in Syria to the International Criminal Court.
  4. 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).

  1. All three conditions would clearly be met in this case:

(i) The Syrian regime has been killing its people for two years, with reported deaths now over 100,000 and refugees at nearly 2 million. The large-scale use of chemical weapons by the regime in a heavily populated area on 21 August 2013 is a war crime and perhaps the most egregious single incident of the conflict. Given the Syrian regime’s pattern of use of chemical weapons over several months, it is likely that the regime will seek to use such weapons again. It is also likely to continue frustrating the efforts of the United Nations to establish exactly what has happened. Renewed attacks using chemical weapons by the Syrian regime would cause further suffering and loss of civilian lives, and would lead to displacement of the civilian population on a large scale and in hostile conditions.

(ii) Previous attempts by the UK and its international partners to secure a resolution of this conflict, end its associated humanitarian suffering and prevent the use of chemical weapons through meaningful action by the Security Council have been blocked over the last two years. If action in the Security Council is blocked again, no practicable alternative would remain to the use of force to deter and degrade the capacity for the further use of chemical weapons by the Syrian regime.

(iii) In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike specific targets with the aim of deterring and disrupting further such attacks would be necessary and proportionate and therefore legally justifiable. Such an intervention would be directed exclusively to averting a humanitarian catastrophe, and the minimum judged necessary for that purpose.

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    Heiko Recktenwald says

    August 29, 2013

    <>

    There is at least more than one option to help Syria.

    Joost says

    August 29, 2013

    Such a lawless world!

    I disagree with you, Marko, that the only problem with the UK's assertion is how customary international law works. Humanitarian intervertion is not just about customary law. It's about the Charter and how it is interpreted and applied by the UN members. We have a treaty which, even though accepted as part of general international law, is lex specialis between the UK and the same countries that are now blocking the Security Council. These latter countries, as many others, are likely to oppose any broad interpretation of the Charter, based on whatever subsequent practice of the UK or a few other States.

    Joost says

    August 29, 2013

    At the end of UK official webpage in which it sets out its doctrine of humanitarian intervention, there is the following text: "Is there anything wrong with this page?"

    I guess there is.

    Noam says

    August 29, 2013

    I think this is the type of moment in which looking strictly at the legal norms, as easy as that may be, is just not sufficient.

    If, as Marco suggests (and I agree with his suggestion) we are seeing an active attempt to change customary int'l law the question should be in which direction are we willing to see int'l law change.

    This is a difficult issue for lawyers to deal with (see Judith Sklar's book on Legalism),but I think for int'l lawyers to have something meaningful to say about this beyond "it is not legal" we are gong to have to look beyond at some of the underlying norms that inform our understanding of what ought to be law, not at just what is law.

    Jordan says

    August 29, 2013

    A very interesting debate is taking place at this moment in Parliament and part of the focus is on international law. I applaud the British debaters for their attention to international law, whether or not any of their views are correct or problematic, because there does not appear to be such a debate in my country, the United States.
    For consideration here, there might be other claims concerning the propriety of use of force under international law, e.g., with respect to:
    (1) collective self-defense with the consent of Turkey,
    (2) a type of collective self-defense with the consent of the legitimate representatives of the Syrian people (as well as self-determination assistance -- see my "response" to Dapo's prior post and the article on SSRN's website),
    (3) NATO authorization (as in Kosovo) in conformity with Art. 52 of the Charter (if the vote comes),
    (4) League of Arab States authorization, in conformity with Art. 52 of the Charter (if the vote comes),
    (5) a policy-serving interpretation of U.N. Art. 2(4),
    (6) a foolish attack on a U.S. or U.K. naval vessel by Assad, et al.,
    (7) a U.N. G.A. Uniting for Peace resoluiton.

    Ralph Janik says

    August 29, 2013

    I cannot help but be cynical: a bunch of international law nerds seems to be secretly cheering for a new opportunity to discuss questions that do not seem to matter alot for the practitioners. All that seems to be happening (thanks for the insightful post above!) is the question of how to find a legal basis but not the issue whethere there is one at all! In this sense, Syria is some sort of Disneyland for international lawy peeps eager to justify their existence, not more. Sadly enough, this conflict has long ceased to be a matter of law (if it ever was at all) but mere international relations. A versus B, with A being allied with C and B with D. In this world, the prohobition on the use of force is nothing more than some nice phrase to be repeated over and over again but nothing substantial when it comes to war mongering.

    Mihai Martoiu Ticu says

    August 29, 2013

    This position is since 2000. See 71 B.Y.I.L. 646. (United Kingdom Guidelines on Humanitarian Intervention) The difference seems that in the old guideline only collective action would be legal. Now it is for U.K. also legal to fly solo.

    Heiko Recktenwald says

    August 29, 2013

    Just returning from Bellingers continental shelf and maybe the Nuremberg Trials are instant custom as well.

    But in the continental shelf case there were actions that followed and after some time it was clear that new PIL was born. In the Nuremberg and Iraq case there was nothing.

    If wer did not know better we did only ask ourselves whether Colin Powel had lied. There could have been an implied recognition that if he had spoken the truth everything would have been fine.

    But this would be at best a naked opinio iuris without action like animus dominus without corpus, not more than a vague expectation. I doubt that this is anything. The world has not yet seen anything. Maybe customary law is a body of law that must be possessed like other things. It must come to reality.

    But in the case of Colin Powel it could also have been nothing more than sloppy legal thinking.

    I ask myself how express an objection would have to be to protest against an emerging norm of customary law. Do we need some sort of consent? It a protest against some action on the ground a protest against as norm?

    Heiko Recktenwald says

    August 29, 2013

    Jordan, I agree that collectiv selfdefense is important. In the case of the Kosovo it was the only valid justification, but it was a former province (until today) and Yugoslavia was breaking up into parts. There is a lot of talk about devisions but if we look closely what did matter was the possession of arms and arms are mixed in Syria

    Heiko Recktenwald says

    August 29, 2013

    Yugoslavia was breaking up into parts in the middle of Europe during the European spring of 1989 etc.

    That breaking up of empires stopped somewhere in Russia with Putin. Poor Georgia. But Russia is something else.

    Heiko Recktenwald says

    August 29, 2013

    IMHO we cannot interprete the UNCh as we want. Maybe we can create some sort of UN customary law faster but what is not in the charta? One of my teachers used to say: The constitution of Guatemala is more beautifull.

    Heiko Recktenwald says

    August 29, 2013

    And one important thing in former Yugoslawia was the devision between East and West Rome. However this was mixed with the occupation by Turkey and the Eastern orthodox church, something like that does not exist in Syria either

    Heiko Recktenwald says

    August 29, 2013

    And Ralph, A v. B, what do we do with Kampala? If Kampala could be a justification..

    Jordan says

    August 29, 2013

    Heiko: I am not sure that "breaking up" matters, but Syria may be "breaking up" or there may be a larger armed conflict that is Suni vs. Shia -- no one can say for sure what the future holds. I am struck by the UK PM statement that a UK use of force against targets in Syria would not be "intervention" -- does anyone really believe that it would not or that it would not be an act of war and trigger application of the laws of war?