A few legal thoughts on the Syria Vote.

So,

As everybody knows the UK parliament voted to intervene in Syria on Tuesday evening.

The rights and wrongs have been, and are being debated with vigour by almost everybody, it seems. But then again, what else would be expect on such an emotive issue.

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I do happen to think it is the correct course of action, because we are threatened by terrorists plotting in Syria to come to Britain and hurt people like me and the people I know and love, and bombing provides a method of stopping that threat before plots can come to fruition. Plus, the idea that the RAF will be dropping thousands of bombs on innocent Syrains, is frankly farcical, when the best estimate we have indicates that there have been no civilians casualties. Of course, this is only an estimate, but there a no better figures with which to base a judgement on. RAF bombing is very discriminate and precise, with very advanced weaponry that reduces the chances of unintentionally killing civilians near legitimate targets significantly, see here. However, this post is not about the moral, ethical, or military justifications, just some legal thoughts. I would also clarify before continuing, that whilst I am informed on Use of Force, my PhD is in its early stages, and I would not class myself as an expert, and because I have kept some issues brief, I would not class this blog as my full and reasoned opinion.

Using force in another country is illegal under United Nations Charter Article 2(4), except when either authorised by the UN Security Council, or in self-defence, either individual or collective, as stated in Article 51.

un charter

As I see it, the Government has recourse to use three arguments for self-defence, (1) individual self-defence of the UK, (2) collective self-defence of France, and (3), continuing self-defence of the USA, (4) collective self defence of Iraq .

In order to have a legitimate claim to self-defence, the victim state must suffered an ‘Armed Attack’, or have one imminently incoming. An armed attack is a concept of International Law that nobody really knows what it is, there is no minimum level of violence the equate with an armed attack. However, the International Court of Justice has spoken on armed attacks (see para. 195). They say that an armed attack need not only be an invasion by a State, but also the sending of irregular forces who do a similar amount of damage as regular troops could. In this judgement, the ICJ state that in order to qualify as an armed attack, the irregulars, or ‘armed bands’, must be connected with a State so closely as to be acting as an extension of a State. Where this is not the case, in black-and-white international law, all other terrorist acts should be held as a law enforcement matter. There are lots of arguments around the level of control needed between a State and Non-State Actor, see here for an overview.

In the case of Daesh, it is clearly not acting as an extension of any State, even if people can prove some gulf States are funding them. They follow their own rules and Abu Bakr Al-Baghdadi’s orders.

Thus, in black-and-white international law, only Iraq and Syria could use force against Daesh as law enforcement, but all other States threatened by them would have to request that Iraq and Syria deal with Daesh (by black-and-white international law, I mean that which is written and accepted, not emerging customs, concepts and precedents). Other States don’t really have any recourse to legally hit back at Daesh under self-defence, in black-and-white international law. Of course this would not stop Syria and Iraq being able to invite other countries onto their territory to use force and eliminate Daesh, as Syria has done with Russia, and Iraq with many countries, such as the UK and US.

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Photo by thierry ehrmann.

However, since 9/11 was deemed an armed attack by NATO, several international lawyers have agreed, resulting in the emergent international law concept that States can be suffer armed attacks from terrorists, and have a legitimate right of self-defence, even if that terrorist group is not under the effective or overall control of another State. This logic results in the US having a legitimate right of self-defence to act against al-Qaeda. Many agree, some do not, but for the sake of this blog, I’m going to run with it. Also, seeing as the world, and terrorism in particular has changed vastly since the Nicaragua judgement, I personally think it is fair to accept ideas of terrorism unconnected to another State as constituting an armed attack, but do concede that it does elevate them than higher than the criminals that they really are, as Sir Christopher Greenwood has argued.

The US logic thus follows that international terrorism, constituting an armed attack allows them to retaliate, in accordance with the law. Where the threatening terrorists emanate from a friendly State, they request that state to deal with them, but where they do not, this creates a problem.

However, whilst some may accept the US, and allies acting in collective self-defence against al-Qaeda, this does not mean they have an instant right of self-defence against Daesh in Syria, as they are not the same group. However, the US states that as Daesh used to be part of al-Qaeda, and engaged in combat against the US in the Iraq war, there is a continuing right of self-defence against them despite name changes and falling out with al-Qaeda core due to being too violent.

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US Soldiers from the 1st Cavalry Division prepare to enter and clear a building during fighting in Fallujah, Iraq. U.S. Army photo by Sgt. 1st Class Johancharles Van Boers. Dated November 12, 2004.

In recent years, the US has created an ‘Unwilling or Unable‘ doctrine, where should a State have terrorists in its territory, and is unwilling, or unable to deal with them, it should have the ability to intervene and deal with said threat, as in the case of al-Qaeda in Afghanistan, where they were protected by the Taliban. This doctrine is not accepted in international law, but is used to by the US to justify it’s territorial incursions as part of its’ Targeted Killing programme, and by the UK in justifying its’ targeted killings of Reyaad Khan and Ruhul Amin.

This concept may hold weight in the US Targeted Killing programme, where the government of Somalia cannot deal with al-Qaeda linked terrorists on its’ territory, as it has no functioning infrastructure. It does also hold some weight in the UK killings of Khan and Amin in Sumer 2015.

But, the Syrian government is willing to take action against Daesh, and though it may be unable to eradicated them alone, since the September invitation of Russia to assist in the removal of Daesh, and its’ open offer to other States to join with them and fight Daesh, means that Syria is both willing, and able (to some degree) to deal with Daesh (I must thank my supervisor, Professor James Sweeney for this idea). Thus, the Unwilling/Unable doctrine does not provide justification in this case. Therefore, neither the US nor its allies have recourse to intervene in Syria unilaterally, without Syrian government authorisation.

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An MQ-9 Reaper UAV. U.S. Air Force photo/Staff Sgt. Brian Ferguson

Additionally, the logic that Daesh are directly linked to al-Qaeda in terms of self-defence, seems quite weak to me. Whilst there may be organisational routes back from Daesh to being part of al-Qaeda, the idea that they are one-and-the-same is incorrect. Daesh do not take orders from Ayman al-Zawahiri and al-Qaeda core, were not involved in 9/11, and stopped attacking Americans following the end of the Iraq War. Therefore, I would suggest that UK intervention in Syria based on continuing collective self-defence of the USA following 9/11 does not stand up.

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Emblem of Daesh

Going back to the concept of an armed attack, as the ICJ states that for a terrorist attack to equate to an armed attack, it must cause a similar level of damage that regular troops would. Therefore, whilst it sounds callous, France did not suffer a level of damage that would equate to an armed incursion in the Paris attacks of 13-14th November 2015. Nor, would I expect any of the disrupted plots, or anticipated attacks against the UK to rise to the level of armed attack.

However, there is an emerging concept of ‘cumulative effect’ or ‘aggregate damage’, which is advocated by the Americans and Israelis, where taken together multiple terrorist attacks part of a continuing campaign could constitute an ‘armed attack’. Whilst this approach does have some merit, it is not accepted custom, and nor are there many examples of State practice, so it would be difficult to argue this as creative an armed attack in order to effect self-defence. I would therefore suggest that acting in the collective self-defence of France, and in the individual self-defence of the UK would not provide adequate justification for the UK intervention in Syria.

In violent situations not equating to an armed attack between States, such as minor border incidents, States have legitimate recourse to counter-measures, or reprisals. There may be some equivalent with violence between a State and Non-State Actor, which could allow the UK and France to justify some actions against Daesh in retaliation for perpetrated, or in prevention of anticipated attacks not at the level of an armed attack. (This is an issue I’ve not really looked at before, and am hoping to look deeper into this soon.)

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RAF Tornado GR-4 over Iraq in 2004. Taken by SSgt. Lee O. Ticker, US Air Force.

 

Therefore, as I see it, the only legitimate recourse to self-defence against Daesh would be in the collective self-defence of Iraq. The anti-Daesh coalition bombing Iraq at the Iraqi Governments request would have reason to cross the border when it’s targets can cross the Syrian-Iraq border to use safe-havens. Similar happened in the Vietnam war when Viet-Minh crossed into Cambodia to find safe-haven, the US had legitimate reason to cross the border to eliminate its’ enemies there, and I would suggest the same applies here (see The Vietnam War and International Law by Richard Falk).

The fact that the UK is involved in a Non-International Armed Conflict in Iraq by assisting the Iraqi government would not prevent its’ action in Syria constituting an International Armed Conflict between the UK and Syria (even if there is no shooting between them), with a simultaneous Non-International Armed Conflict between the UK an Daesh in Syria also.

I would therefore conclude that legitimate responses to Daesh in international law would be reprisals/counter-measures should a terror attack (perpetrated or anticipated) reach the level of an ‘armed attack’, or engaging in a full armed conflict on the grounds of collective self-defence of Iraq, which would require a creation of an inadvertent International Armed Conflict with Syria.

Despite me saying that the UK has no recourse to a self-defence argument due to the level of violence not equating to an armed attack, I do still think that our action is Syria, as part of the collective self-defence of Iraq is a method of reducing the threat of terrorism to the UK. At the moment, I really think it is the only option we have. I’ve been asking over my social media feeds since the vote whether any anti-bombing campaigners have any alternatives, those only good response I had was cutting off Daeshs’ oil selling network. Yet, this would still leave the ‘irreconcilable’ individuals, as Gen. David Petraeus, and Lt-Gen. Sir Graeme Lamb would say (i.e. those who cannot be persuaded to lay down their arms and take a peaceful political approach), still armed and hell-bent on attacking outside of Syria. So, I don’t really see what other options we have, other than to reduce the terror threat posed to us, whilst simultaneously engaging in the collective self-defence of Iraq.

Until next time!

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An MQ-9 Reaper. Photo by US Air Force.
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