On 10 September 2018, the Foreign Affairs Committee published its Twelfth Report of Session 2017–19, on Global Britain: The Responsibility to Protect and Humanitarian Intervention (HC 1005). The Government response was received on 8 November 2018. The response is appended below.
The Government welcomes the Foreign Affairs Committee’s report on: Global Britain: The Responsibility to Protect and Humanitarian Intervention.
This paper sets out the Government’s response to each of the Committee’s conclusions and recommendations. The Committee’s text is in bold and the Government’s response is in plain text. Paragraph numbers refer to the Committee’s report.
1.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. (Paragraph 18)
2.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. (Paragraph 19)
The UK’s long-standing position on humanitarian intervention is that it is consistent with international law if the following 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).
The circumstances must be truly exceptional for the criteria to be satisfied. The first criterion—extreme humanitarian distress on a large scale—is a very high threshold. This can be evidenced by the examples of where the United Kingdom has previously relied on humanitarian intervention: safe havens in northern Iraq in 1991, no fly zones in southern Iraq in 1992, the NATO intervention in Kosovo in 1999, and in response to the use of chemical weapons by the Syrian regime in 2018.
The second criterion is that there must be no practicable alternative to the use of force if lives are to be saved. The use of force will always be an act of last resort. We first need to focus on prevention and capacity-building. We need to consider whether we can prevent atrocities by non-military means—through measures short of the use of force. Humanitarian intervention will only be considered where it is necessary to safeguard a population against grave and imminent peril and where there is no other legal basis for the use of force, such as self-defence, a Chapter VII UN Security Council resolution authorising force or host-state consent.
The third criterion is that 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. it is the minimum necessary to achieve that end and for no other purpose). The necessity and proportionality criterion acts as a powerful brake on any use of force, and ensures that any action is the minimum judged necessary.
The consequence of advocating against humanitarian intervention is that it would be unlawful to take action to save lives where the UN Security Council is blocked from acting. That is the inevitable logical consequence of the view that international law does not permit targeted military intervention in situations of extreme humanitarian distress. The Government therefore agrees with the Committee that: “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.”
Successive UK Governments have approached humanitarian intervention, and its parameters, with rigorous scrutiny. There is a heavy weight of responsibility in any decision to use force in another state. That is why it is the Government’s view that while humanitarian intervention remains a legitimate and lawful basis for intervention, it must only be used truly exceptionally within the tightly defined and consistently applied criteria. The Government believes it is of fundamental importance that the limits, protections and safeguards that are already woven into the criteria of humanitarian intervention are perceived as integral to its existence. This is an essential component of its integrity.
It is important to note that the legal basis for the intervention in Libya, contrary to the Committee’s inference above, was not humanitarian intervention. The intervention in Libya was authorised by the UN Security Council through resolution 1973 (2011), which has now come to be seen as an example of the Responsibility to Protect in action.
3.Prevention will always be better than a response. The Government should be doing all it can do to prevent atrocities from occurring in the first place. The obvious and driving impetus for this is the lives saved. As the situation in Syria has illustrated in the most devastating of ways, waiting to respond to crises means that it will inevitably be too late for some, or in this case many. Successfully preventing atrocities also has domestic implications such as reducing the likelihood of the need to deploy the armed forces and contributing to achieving national security objectives. (Paragraph 24)
4.In our first report of this session on the Violence in Rakhine State and the UK’s response we called on the Government to prioritise atrocity prevention in political and diplomatic conversations. Everything we have heard as part of this inquiry has strengthened our belief that an atrocity prevention strategy is now more vital than ever. The Government needs to act urgently to produce a comprehensive atrocity prevention strategy and implementation plan to ensure it moves beyond words and towards concrete actions. Such a strategy would benefit from consultation and we call on the Government to produce a draft strategy for consultation by April 2019. (Paragraph 25)
The UK remains firmly committed to the Responsibility to Protect (R2P) concept and to doing all we can to prevent, or where necessary, respond to atrocities. We disagree with the Inquiry’s recommendation that the Government should adopt a new atrocity prevention strategy.
Atrocity Prevention is an important strand of our conflict prevention agenda. The conflicts and crises we face are complex, and so require complex solutions and long-term patient work in order to tackle them. They also require multiple approaches and we have adopted a consolidated, whole-of-government effort, using our diplomatic, development, defence and law enforcement capabilities, to find pathways to peace and stability in countries and regions at risk. Atrocities do not always occur in the context of armed conflict. But the tools to prevent and respond to both atrocity situations and armed conflict are substantively alike, and often the best way to prevent atrocities can be to prevent conflict.
Given the extent to which the UK already seeks to prevent and to respond to atrocities, we do not believe that anything would be gained from collating this all under a new strategy on Atrocity Prevention. We are concerned that developing a new strategy risks considerable duplication and diverting resources away from delivering existing Atrocity Prevention work. Nor is it our view that the simple existence of a ‘Strategy’ necessarily improves delivery. Indeed, our Atrocity Prevention work is already well-established within existing geographical and thematic workstreams.
Whilst we are confident that we have the right tools and resources in place, we know that predicting and preventing atrocities in an unpredictable world will always present challenges.
On Syria, we have consistently supported the UN-facilitated political process to reach a lasting settlement to the conflict, which protects the rights of all Syrians. We use our bilateral discussions and our position on the UN Security Council, the International Syria Support Group and the Small Group on Syria to urge all international actors to prioritise this process and the protection of civilians. Most recently on Idlib, we strongly supported Turkey’s diplomatic efforts to reach a political solution in order to avoid a man-made humanitarian disaster, including in the UN Security Council. We are encouraged that the calls by the UK and our partners to find a negotiated solution and avoid needless loss of life of the 3 million civilians in Idlib have been heeded, and will continue to press for the ceasefire agreement reached by Turkey and Russia to be respected.
The UK is committed to supporting the victims of this appalling conflict. The Syria crisis has seen the UK’s biggest-ever humanitarian response to a single crisis, mobilising £2.71bn of support since 2012, including a new commitment of £350m at the Brussels Conference this year. In January, we supported and lobbied for UN Security Council (UNSC) Resolution 2393, which provides for humanitarian aid to be delivered cross-border into Syria. The UK also joined our close partners in mobilising the Security Council to demand a ceasefire across the whole of Syria and the immediate delivery of emergency aid to all those in need through UNSC Resolution 2401, which was unanimously adopted on 24 February.
The UK has also been at the forefront of the international response to use of chemical weapons (CW) in Syria, including the successful work to empower the Organisation for the Prohibition of Chemical Weapons to attribute responsibility for use of CW, as well as military action to alleviate the urgent humanitarian suffering caused by CW.
Furthermore, the UK has a long-standing commitment to accountability for human rights violations and abuses in Syria. The UK was a driving force behind the establishment of the UN’s International, Impartial and Independent Mechanism (IIIM) in 2016, which investigates and collects evidence of the most serious crimes under international law in Syria. As penholder on Syria in the UN Human Rights Council we secured the renewal this year of the mandate of the Commission of Inquiry which is reporting on human rights violations and abuses in Syria.
Regrettably, there are still leaders who seek to do harm on a devastating scale to their civilian populations. Against this backdrop the UK will continue to work to end atrocities, advocating for action to prevent them, and where they take place bring those responsible to account. But we must be realistic: the UK alone will rarely have the ability to prevent atrocities. The UK can and does take action of its own accord and in coalition with others. But outcomes will be influenced, often significantly, by the behaviour of other powers and local and regional actors. Given the range of effort undertaken on Syria, it is difficult to see how an atrocity prevention strategy might have informed us to act differently.
5.We agree that the UNSC is the right authority to mandate collective use of force. However, we believe that the P5 states, in holding a right to veto, have a responsibility to ensure that the narrow interests of a few do not stand in the way of protecting the many. It is an abuse of the moral responsibility entrusted to the permanent Security Council members to block action sought to prevent or alleviate suffering from mass atrocities. Just as there are risks to undermining the authority of the UNSC through invoking the ‘Uniting for Peace’ resolution, so there are similar risks if the UNSC fails to respond when a state is perpetrating mass atrocities against its own citizens. (Paragraph 30)
6.The Government should commit to implementing France’s 2013 proposal to refrain from use of the veto where there is credible evidence of genocide and it should encourage other P5 members to do the same. The Government should explain how it intends to encourage P5 members to commit to this proposal and, if other members fail to adopt voluntarily the French proposal, how it intends to work with those states to secure this commitment. (Paragraph 31)
The UK fully supports the principle that as a matter relating to international peace and security, the UN Security Council should be empowered to act to stop mass atrocities. That is why the UK signed up to the Accountability, Coherence and Transparency (ACT) Group’s Code of Conduct in 2015. The Code of Conduct calls on all Security Council members not to vote against a credible draft resolution on timely and decisive action to end, or prevent, the commission of genocide, crimes against humanity or war crimes. As of 1 June 2018, the Code of Conduct has been signed by 115 UN member states and two observers.
The parallel proposal put forward by France calling for a P5 voluntary Code of Conduct not to use the veto, offers an important contribution to the wider debate on reform of the Security Council. As of 27 June 2017, the French initiative has been supported by 96 member states. Given the ACT Code of Conduct’s broader focus on all Security Council members (rather than the French initiative’s focus on the P5 alone), our decision to sign up to the ACT Code is the right one.
Through its Permanent Representation to the UN in New York, the Government works tirelessly to find solutions that avoid divisions in the Security Council and which, at the same time, provide much needed help and support for vulnerable people. Unfortunately, in some cases, we have seen other permanent Security Council members wield their veto through narrow self-interest, to the significant detriment of the Council’s reputation.
The UK has long been open to reform of the UN Security Council to make it more representative, provided this does not damage its effectiveness and efficiency, and works closely with other member states to this end. Specifically we support permanent seats for Brazil, Germany, India and Japan, alongside permanent African representation. We also support modest expansion of the non-permanent category of members.
7.The airstrikes have shown, as one witness put it, that “when western Governments want to act, they can act.” Whilst the Committee notes the action taken by the UK Government in responding to the chemical weapons attacks in Douma, we are concerned that the Government has responded only to chemical weapons attacks rather than conventional weapons attacks and other grave breaches of international humanitarian law, which have caused many more deaths and injuries. In so doing the Government risks creating what has been described to us as a “hierarchy of atrocities”. (Paragraph 35)
8.Whilst international humanitarian law prohibits and regulates the use of weapons in conflict, the continued flouting of those laws in Syria by the regime and other actors suggests that more needs to be done to bolster and strengthen the application of those rules in order to protect civilians. The Government should update its protection of civilians in armed conflict strategy to include a focus on the use of explosive weapons in populated areas. As part of that strategy the Government should set out the measures it is taking to reduce the impact of these weapons on civilians and on the essential services that civilians rely on, such as healthcare facilities. (Paragraph 36)
The UK Government is committed to preventing, reducing and resolving conflict. We aim to address the growing challenges of protecting civilians affected by conflict through: political engagement; strengthening accountability; peace support operations; ensuring respect for international humanitarian law (IHL) in UK military operations; strengthening state and non-state capacity; humanitarian action; and offering refuge to those in need of protection. The principles of the 2010 Protection of Civilians Strategy continue to guide our work and we consistently review our overall approach. That approach has evolved over time and, for example, in April 2018 the UK signed up to the Safe Schools Declaration, which supports the protection and continuation of education in armed conflict. The UK calls on all combatants in all conflicts to observe similarly robust standards to those against which the UK operates.
As the Committee notes, use of lethal force in populated areas, as elsewhere, is governed by relevant international law—in particular, IHL. The UK’s targeting policy and practice is entirely consistent with our obligations under UK and international law and we will continue to operate in accordance with its principles. The decision to use explosive weapons in any theatre of operations will depend upon the context of that operation. Prior to carrying out any pre-planned attack, whether near a civilian area or not, the UK’s targeting process complies with the founding IHL principles of distinction, necessity, proportionality and humanity, and is rigorous in terms of target selection, target approval, and an assessment of any potential collateral damage. This both ensures and demonstrates our compliance with IHL. The UK will continue to review its policies and practices to ensure they are consistent with our obligations to minimise risk to civilians and civilian infrastructure, whilst maintaining our ability to operate effectively.
The protection of civilians in Syria is a priority and the UK has pursued a range of actions in response to, and in an effort to deter further, violations of IHL in Syria. On the ground, the UK is funding an innovative early warning system that is proven to reduce civilian casualties from airstrikes. The technology works by detecting aircraft using remote sensors and machine-learning algorithms, before sending early warnings to civilians through air raid sirens and social media alerts. Thanks to UK support, this system has already delivered early warning to more than 2 million people and is estimated to have reduced casualties by up to 27% in areas under heavy bombardment.
The UK continues to call upon all parties to the conflict to uphold IHL and protect civilians and we have consistently used our position in the UN Security Council and other multilateral fora to draw attention to the systematic flouting of IHL and medical neutrality by parties to the conflict in Syria. The UK has worked with allies through the EU to secure tough EU sanctions against individuals responsible for the violent repression of the civilian population in Syria. Over 300 individuals and entities are sanctioned, including President Asad.
The UK is at the forefront of efforts to pursue accountability for violations of international law and human rights abuses. We strongly support the work of the UN’s International, Impartial and Independent Mechanism (IIIM), to which we have contributed £450,000. In partnership with other donor countries we are also funding NGOs to collect documentary evidence for use in any future legal processes. The UK also supports the important work of the independent UN Commission of Inquiry, which is reporting on human rights violations and abuses.
As set out above, it is the Government’s view that humanitarian intervention must only be used truly exceptionally within tightly defined and consistently applied criteria. Whether or not humanitarian intervention will be available as a legal basis for, and whether the government judges it appropriate to take, military action will depend on the specific facts and circumstances as they exist at the time.
Following the chemical weapons attack on Douma, the government judged it necessary to take military action with the US and France to alleviate the humanitarian suffering caused by the use of chemical weapons, and to re-establish the international norm prohibiting the use of chemical weapons. As the Prime Minister said in the House, “what sets this apart particularly is the use of chemical weapons”. The UK cannot allow a situation to develop in which countries and people are allowed to think that the use of chemical weapons has been allowed to become normalised.
9.There has been a manifest failure to protect civilians and to prevent mass atrocity crimes in Syria. This failure has gone beyond the heavy toll paid by the Syrian people to the surrounding region, and had repercussions in Europe and the UK. It is the Committee’s view that this failure derives principally not from the actions taken by the international community but inaction. Whilst we recognise the UK’s significant contribution to the humanitarian effort in Syria and its support of other mitigating measures, the failure to intervene has had severe consequences and is about political engagement and will. The international community’s inaction created an opportunity for others, particularly Russia and Iran, to intervene, changing the politics of the conflict in Syria. (Paragraph 40)
10.While the cost, complexities and challenges of intervening have been well documented through previous inquiries, such as the Iraq Inquiry, the consequences of not acting are less well understood. We believe that the consequences of inaction can be every bit as serious as intervening. The decision not to intervene in Syria has had very real consequences for Syrians, their neighbours, the UK and our allies. We believe the Government needs to understand the role the UK’s inaction has had and learn the lessons from it for the future. Whilst the Committee agrees with the Foreign Secretary that the UK has remained engaged in Syria throughout the conflict, this engagement has focussed more on measures that respond to crises, rather than proactive measures that prevent them. It remains our view that the Government should establish an independent inquiry into the decision-making processes leading to, and the consequences of, non-intervention. (Paragraph 41)
We agree that decisions not to intervene militarily can prove as significant as decisions to do so. However, for the reasons given in the Foreign Secretary’s letter (dated 13 August) to the Chair of the Committee, we disagree with the notion the UK has been ‘inactive’ in seeking to prevent the humanitarian disaster of Syria—the UK has remained active throughout in trying to end the conflict and mitigating its appalling humanitarian consequences for the Syrian people and the region, including committing more than £2.71 billion to the Syria crisis. More specifically, as the Foreign Secretary set out at length, we disagree with the Committee’s proposal for an independent inquiry in the case of Syria. This is because the circumstances surrounding the UK’s decision not to intervene militarily in the Syrian conflict are well understood. On 21 August 2013, the Asad Regime deployed chemical weapons in an attack around Ghouta which left over 800 people dead. The Government of the day found that humanitarian intervention was an available legal basis for military action. However, after a lengthy debate, Parliament voted on 30 August against military involvement in Syria. It was for this reason that the UK did not intervene militarily. This does not require an independent inquiry to determine. The Foreign Secretary set out in his letter his regret that failing to take military action at that time may have emboldened the regime and encouraged other countries to enter the conflict more forcefully on the side of the Syrian regime, with consequences for the subsequent trajectory of the conflict. Of course, determining those consequences is not easy: military intervention would have had its own effects, not all of which can be readily foreseen. Nonetheless, whatever the decisions made in 2013, it must be clear that the prime responsibility for the massive loss of life and destruction in Syria lies in the hands of the regime and its partners.
Foreign and Commonwealth Office
8 November 2018
Published: 19 November 2018