Saturday

23rd Mar 2019

Opinion

UK participation in Syrian missile strike on shaky legal ground

  • The remnants of a Syrian city after seven years of civil war (Photo: Reuters/Omar Sanadiki)

Prime minister Theresa May has announced British participation in a US-French-UK coalition strike against the Syrian regime's chemical weapons attack against civilians, which killed at least 50 people and injured hundreds.

She stated that the military action was to stop Assad's pattern of behaviour "not just to protect innocent people in Syria from the horrific deaths … but also because we cannot allow the erosion of the international norm that prevents the use of [chemical] weapons."

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

The PM continued that there is "no practicable alternative to the use of force to degrade and deter the use of chemical weapons."

Her justification is that the strike is "specifically about deterring the Syrian regime" and sending "a clear signal" to others who might use chemical weapons.

May claimed that the action is "in Britain's national interest".

Unfortunately, these claims do not withstand scrutiny.

First, the British public does not see the military strikes as being in the national interest: 43 percent opposed missile strikes whereas only one in five people supported the use of cruise missiles against Syria.

The prime minister has not explained which national interests are impacted by Assad's use of chemical weapons.

No British citizens were harmed by their use last week and no vital security interests were affected.

Although the use of chemical weapons is reprehensible, their use in Syria does not impact any specific British national interest.

Secondly, May's argument for the use of force to specifically deter Assad has no support in international law.

The UN Charter does not authorise states to use force for deterrence. Specifically, article 2(4) states: "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."

The authority for using force is limited to the UN Security Council. In addition to such collective force, states may only use force in self-defence.

The charter vests the UN Security Council (SC) with the right to use force under article 42.

The SC may use force if other measures to give effect to its decisions "would be inadequate or have proved to be inadequate".

The use of force includes actions "by air, sea, or land forces as may be necessary to maintain or restore international peace and security."

Russian veto at UN

In this case, the UN Security Council has not authorised the use of force under article 42. There is no prospect of such authorisation due to Russia's veto power.

The right to self-defence is recognised in article 51: states can defend themselves if there is an "armed attack" against them. There is no "armed attack" against Britain.

May also claims that "there is no practicable alternative' to the use of force. However, this is simply not true.

The chemical weapons attack has already transpired. There is no intelligence that a new attack is imminent – necessary for a preventative justification.

So, this missile strike is not impelled by a need to save human lives where there is no other alternative.

There are other alternatives to missile strikes after a chemical weapons attack has already occurred.

These include an Organisation for the Prohibition of Chemical Weapons (OPCW) investigation to establish facts and responsibility and the use of "measures not involving the use of armed force" under article 41 of the UN Charter.

The British PM did not exhausted these steps before committing the UK to missile strikes.

Finally, May claims that the use of force is necessary to enforce the norm against the use of chemical weapons.

Those norms are embodied in the Chemical Weapons Convention, which provides that when a state is in noncompliance, the conference "may restrict or suspend the state party's rights and privileges under this convention until it undertakes the necessary action to conform with its obligations."

When a violation causes "serious damage to the object and purposes" of the convention, the conference "may recommend collective measures to states parties in conformity with international law."

Crucially, the convention establishes a binding obligation to bring matters of "gravity" including facts and evidence to the UN General Assembly and the Security Council.

In other words, the British prime minister's action is directly contrary to the very international norm she is referencing to justify military action.

When a state's action is in serious breach of the convention – a threshold met by Assad's use of chemical weapons last week – the mandated solution is a recommendation for collective measures.

Evidence establishing the violation and any conclusions that flow from such evidence has to be brought before the Security Council for action.

The international norm that prevents the use of chemical weapons does not specifically authorise states to conduct military strikes to enforce it.

The precise language employed in the convention itself unambiguously destroys May's argument.

To be clear, Assad must pay a heavy price for his heinous crimes.

However, distorting international law rules and offering weak justifications for using force are unlikely to earn support from the domestic public or other states to make him pay.

The hard yards of evidence gathering, establishing guilt, and building international support are likely to be much more effective than theatrical one-off strikes.

Dr Sandeep Gopalan is a professor of law at Deakin University, Australia

EU toes the line on Syria air strikes

EU foreign ministers to back Western air strikes on Syria, the same way they backed the UK over Russia's chemical attack on an ex-spy in Britain.

Agenda

Macron and Syria top EU agenda This WEEK

French president to deliver speech on EU democratic model after populist victories in Hungary and Italy and amid an escalation of the Syria crisis.

Does the EU have a Syria strategy?

Instability in the Mediterranean region is not in the long-term interest of Europe - that means mobilising leverage that the EU has in other areas to incentivise hard-nosed actors in Moscow, Tehran and Ankara to agree to the EU's vision.

Macron is confusing rigidity with strength

Jan Zahradil, EU Commission president Spitzenkandidat for the European Conservatives and Reformists Group, responds to Emmaneul Macron's European vision ahead of the May elections.

A compromise proposal for the Article 50 extension

At this week's summit, EU leaders should extend Article 50 until the May European elections. But they should postpone the effective date of the UK's withdrawal from EU rights, rules, and regulations for another year - to May 2020.

Catalan independence trial is widening Spain's divides

What is really needed is not the theatre of a rebellion trial, but a forensic examination of whether public funds were misused, and a process of dialogue and negotiation on how the Catalan peoples' right to self-determination can be satisfied.

News in Brief

  1. EU leaders at summit demand more effort on disinformation
  2. Report: Corbyn to meet May on Monday for Brexit talks
  3. Petition against Brexit attracts 2.4m signatures
  4. Study: Brexit to cost EU citizens up to €40bn annually
  5. NGOs demand France halt Saudi arm sales
  6. Report: Germany against EU net-zero emissions target
  7. Former top EU official takes job at law firm
  8. Draft text of EU summit has Brexit extension until 22 May

Italy should capitalise on Brexit

Now that the UK is leaving, Italy can, and should, step up. It is the third largest country and economy in the EU. Spain and Poland follow, but they are significantly smaller economically and population-wise.

The Magnitsky Act - and its name

It is disappointing that so many MEPs in the Socialist and Green group caved in to Russian interests, in fear of challenging a plutocratic regime, by saying 'no' to naming the Magnitsky legislation by its rightful name: Magnitsky.

Stakeholders' Highlights

  1. Nordic Council of MinistersNew campaign: spot, capture and share Traces of North
  2. Nordic Council of MinistersLeading Nordic candidates go head-to-head in EU election debate
  3. Nordic Council of MinistersNew Secretary General: Nordic co-operation must benefit everybody
  4. Platform for Peace and JusticeMEP Kati Piri: “Our red line on Turkey has been crossed”
  5. UNICEF2018 deadliest year yet for children in Syria as war enters 9th year
  6. Nordic Council of MinistersNordic commitment to driving global gender equality
  7. International Partnership for Human RightsMeet your defender: Rasul Jafarov leading human rights defender from Azerbaijan
  8. UNICEFUNICEF Hosts MEPs in Jordan Ahead of Brussels Conference on the Future of Syria
  9. Nordic Council of MinistersNordic talks on parental leave at the UN
  10. International Partnership for Human RightsTrial of Chechen prisoner of conscience and human rights activist Oyub Titiev continues.
  11. Nordic Council of MinistersNordic food policy inspires India to be a sustainable superpower
  12. Nordic Council of MinistersMilestone for Nordic-Baltic e-ID

Latest News

  1. Italy takes China's new Silk Road to the heart of Europe
  2. What EU leaders agreed on climate - and what they mean
  3. Copyright and (another) new Brexit vote This WEEK
  4. EU avoids Brexit crash, sets new date for 12 April
  5. Campaigning commissioners blur the lines
  6. Slovakia puts squeeze on free press ahead of election
  7. EPP suspends Orban's Fidesz party
  8. Macron is confusing rigidity with strength

Stakeholders' Highlights

  1. Counter BalanceEU bank urged to free itself from fossil fuels and take climate leadership
  2. Intercultural Dialogue PlatformRoundtable: Muslim Heresy and the Politics of Human Rights, Dr. Matthew J. Nelson
  3. Platform for Peace and JusticeTurkey suffering from the lack of the rule of law
  4. UNESDASoft Drinks Europe welcomes Tim Brett as its new president
  5. Nordic Council of MinistersNordic ministers take the lead in combatting climate change
  6. Counter BalanceEuropean Parliament takes incoherent steps on climate in future EU investments
  7. International Partnership For Human RightsKyrgyz authorities have to immediately release human rights defender Azimjon Askarov
  8. Nordic Council of MinistersSeminar on disability and user involvement
  9. Nordic Council of MinistersInternational appetite for Nordic food policies
  10. Nordic Council of MinistersNew Nordic Innovation House in Hong Kong
  11. Nordic Council of MinistersNordic Region has chance to become world leader when it comes to start-ups
  12. Nordic Council of MinistersTheresa May: “We will not be turning our backs on the Nordic region”

Join EUobserver

Support quality EU news

Join us