Global Britain: The Responsibility to Protect and Humanitarian Intervention Contents

2Airstrikes in Syria

Legal basis of airstrikes

11.According to the Government’s published legal position, the UK airstrikes in April 2018 targeted the Syrian Regime’s chemical weapons capability and were aimed at deterring further chemical weapons attacks in order to avert a humanitarian catastrophe.20 Following the airstrikes, the Prime Minister told the House of Commons that she was “clear about who is responsible. A significant body of information – including intelligence – indicates the Syrian Regime is responsible for this latest attack.”21 She went on to state that “we [the Cabinet] agreed that it was not just morally right but also legally right to take military action, together with our closest allies, to alleviate further humanitarian suffering.”22 The Government therefore relied on humanitarian intervention as the legal basis to justify this use of force.

12.The French and US governments, whilst referring to the humanitarian consequences of chemical weapons, did not cite explicitly humanitarian intervention as their legal basis for the air strikes but rather focussed on the deterrence of the use and proliferation of chemical weapons, which was also referred to by the UK in their reasons for the airstrikes.23 In oral evidence, the Minister of State for the Middle East, Alistair Burt, explained the reasons for intervention as “in response to the chemical weapons attack and designed to be both a deterrent and to seek to degrade facilities that might be available for further attacks.”24

13.Despite international acknowledgement of chemical weapons’ widespread illegitimacy, reflected in the majority of states accession to the Chemical Weapons Convention,25 currently there is no right for a state unilaterally to enforce treaties or UN resolutions by military means.26 Some scholars have suggested that “One modest option for reform would be [to] permit unilateral action in response to a narrowly defined category of threat such as chemical (or biological) weapons…”27 Dr Leslie Vinjamuri suggested however that considerations for responding to chemical weapons should include broader humanitarian concerns and whether actions taken will improve the humanitarian situation on the ground.28

Humanitarian Intervention

14.In the Government’s published legal position on the airstrikes in Syria they cite humanitarian intervention as the legal basis for their response, which was directed exclusively to averting a humanitarian catastrophe caused by the Syrian Regime’s use of chemical weapons.29 It references three conditions that should be met for the legal basis of humanitarian intervention to be used: that there is overwhelming humanitarian suffering, there is no other practicable alternative to the use of force, and the proposed use of force is necessary and proportionate, limited in time and scope, to relieve the humanitarian situation.30 The FCO’s written evidence to the Committee reiterated this view.31

15.The counter-argument against using humanitarian intervention as the legal basis for the intervention in Syria has been set out by Professor Dapo Akande in a legal opinion prepared following the airstrikes in Syria for the Deputy Leader of the Labour Party, Tom Watson MP.32 In this legal opinion he argues that humanitarian intervention is not an established principle of customary international law and that “there is very little support by states for this legal position.”33 He goes on to state that “the argument that there is a right of humanitarian intervention under customary international law implies that a rule of customary international law can prevail over or modify the prohibition of the use of force in the UN Charter.”34 Evidence we received that opposed the use of humanitarian intervention as a legal basis for military intervention expressed similar concerns regarding the potential weakening of the provisions set out in the UN Charter.35

16.A further criticism of humanitarian intervention relates to the idea of it being “illegal but legitimate”36 as the Kosovo intervention was described by the Independent International Commission on Kosovo. Referring to this idea Guglielmo Verdirame, a Professor of International Law at King’s College London and barrister at 20 Essex Street, and Dr John Bethell, also a barrister at 20 Essex Street, noted their concern with this argument.37 Rather, their view is that the prohibition on the use of force can be strongly upheld and consistent with “the use of force on humanitarian grounds as a very last resort and where there are realistic prospects of success…”38 As Professor Sir Christopher Greenwood set out in a legal opinion for a predecessor inquiry by the FAC into the NATO intervention in Kosovo in March 1999,

While nobody would suggest that intervention is justified whenever a State violates human rights, international law does not require that respect for the sovereignty and integrity of a State must in all cases be given priority over the protection of human rights and human life, no matter how serious the violations of those rights perpetrated by that State.39

17.Despite these divisions in legal opinion, the broader international response to the airstrikes suggests a degree of consensus about their legitimacy. Following the airstrikes Russia sought condemnation of the attacks in the UN Security Council and proposed a draft resolution that “would have demanded the United States and its allies immediately cease such actions and refrain from any further use of force in violation of international law.”40 It was defeated by eight states voting against the resolution. This apparent political endorsement reinforces the view put forward by Verdirame and Bethell that it “seems very far-fetched to suggest that the creators of the new world order centred on the UN Charter would have intended Article 2(4) to outlaw resort to force in the event of large-scale massacres of civilians or enslavement of populations.”41

18.Whilst noting the divisions in legal opinion around the concept of humanitarian intervention, we agree that it seems unlikely the creators of the UN Charter would have expected that the prohibition on the use of force would be applied in a way that prevented states from protecting civilian populations and stopping mass atrocities. We therefore believe that under specific circumstances, proportionate and necessary force should be available to be used as a last resort to alleviate extreme humanitarian distress on a large scale. The absence of humanitarian intervention as a final recourse could result in the paralysis of the international system and a failure to act, resulting in grave consequences for civilian populations.

19.The Government should provide further clarification and definition in setting out the general conditions for when a humanitarian intervention can take place. The published legal opinion in relation to the April 2018 airstrikes refers, for example, to “an exceptional basis”, “overwhelming humanitarian suffering”, and “convincing evidence”, but the parameters of what these terms mean are not sufficiently clear and therefore risk being misused and misapplied, as has been argued by some in relation to the humanitarian intervention in Libya. In its response to this report the FCO should set out with greater precision the definitions of these terms and how they are applied when determining whether or not a humanitarian intervention is required. Whilst we accept that clarity is difficult in inherently complex conflict situations and that no definition will cover each and every circumstance, definitions can help to ensure that humanitarian intervention is undertaken in future for the right reasons and in the appropriate situations.

20 Prime Minister’s Office, Syria action – UK government legal position, 14 April 2018

21 HC Deb, 16 April 2018, col 39 [Commons Chamber]

22 HC Deb, 16 April 2018, col 40 [Commons Chamber]

24 Oral evidence taken on 3 July 2018, HC1360, Q19

25 Organisation for the Prohibition of Chemical Weapons, OPCW Member States, accessed 17 July 2018

29 Prime Minister’s Office, Syria action – UK government legal position, 14 April 2018, para 4 (iii)

30 Prime Minister’s Office, Syria action – UK government legal position, 14 April 2018

31 The Foreign and Commonwealth Office (RTP0016), para 16

32 Tom Watson MP, Legal advice on UK airstrikes on Syria, accessed 17 July 2018

33 Tom Watson MP, Legal advice on UK airstrikes on Syria, accessed 17 July 2018, para 5

34 Tom Watson MP, Legal advice on UK airstrikes on Syria, accessed 17 July 2018, para 8

35 Gerrit Kurtz (RTP0007), para 17, Brigadier (Retired) Anthony Paphiti (RTP0004), para 26, Dr Aidan Hehir (RTP0009), para 3, UNA-UK (RTP0010), para 33, Patrick Butchard (RTP0017) para 4

36 Brigadier (Retired) Anthony Paphiti (RTP0004), para 11, Dr Adrian Gallagher (RTP0008) para 1.1, UNA-UK (RTP0010) para 36, Independent International Commission on Kosovo, The Kosovo Report, accessed 17 July 2018

37 Professor Guglielmo Verdirame and Dr John Bethell (RTP0015)

38 Professor Guglielmo Verdirame and Dr John Bethell (RTP0015)

39 Foreign Affairs Minutes of evidence 1999–2000, Memorandum submitted by Christopher Greenwood QC, 8 February 2000

41 Professor Guglielmo Verdirame and Dr John Bethell (RTP0015), p3

Published: 10 September 2018