I. INTRODUCTION
On 29 August 2013, the UK government published a memorandum setting out its ‘position regarding the legality of military action in Syria following the chemical weapons attack in Eastern Damascus on 21 August 2013’.Footnote 1 It appeared from the publication of this document, and from the reaction of certain other States that were willing to take action,Footnote 2 that any prospective use of force would be in punishment for the use of chemical weapons on this occasion or as a reprisal to enforce future compliance.Footnote 3 Yet in its relatively brief opinion the UK took the position that ‘the legal basis for military action would be humanitarian intervention‘.Footnote 4 While other States had contemplated some form of military action, most notably the US, none had been as clear and candid as to the legal basis upon which this would be launched.Footnote 5 As this article will attempt to highlight, the UK's position is far from uncontroversial.
Although interventions that have had a positive humanitarian outcome have been undertaken during the era of the United Nations but without the authority of this body, none have been accompanied by an express and unqualified justification based upon a legal doctrine of humanitarian intervention.Footnote 6 However, although the UK's express reliance on this legal basis in 2013 is out of step with general State practice in this area, the UK has form in this respect. Indeed, the UK might be described as the ‘norm entrepreneur’ for a right of humanitarian intervention.Footnote 7 As such, this short article will seek to be clear as to what the UK's legal position exactly was in its 2013 memorandum, whether and how this position can be reconciled with the lex lata governing the use of force for humanitarian purposes and its immediate impact upon it, and finally offer some reflections upon the contribution the opinion and its central legal argument have made to future legal argumentation in this area.
II. THE LEGAL OPINION: WHAT EXACTLY DID THE UK CLAIM?
The opinion was clear that ‘[t]he 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’.Footnote 8 Yet, the UK did not claim to base any possible military action upon the necessity of enforcing legal norms or obligations, perhaps along similar lines as its justification for the use of forcible measures against Iraq in 2003 to enforce Iraq's disarmament obligations.Footnote 9 Instead, the UK was clear that ‘the legal basis for military action would be humanitarian intervention‘.Footnote 10 The rise to prominence of the Responsibility to Protect (R2P)Footnote 11—a concept that has been described as an ‘emerging norm’Footnote 12—has been accompanied by a continuing debate as to whether the law now provides for a unilateral right of humanitarian intervention in extremis.Footnote 13 It was, in this light, somewhat surprising that the UK did not even mention R2P, let alone utilize it— along with the general increase in the international community's expressed revulsion at internal repression—as a means of bolstering its legal position. Instead, in claiming that any force used would be more simply both ‘necessary’ and ‘proportionate’ it seemed to be drawing on customary international law principles governing the resort to force perhaps more typically associated with the law on self-defence.Footnote 14
However, in this case these two principles seemed to provide the overarching framework to the three conditions that the UK claimed needed to be met before humanitarian intervention became an option.Footnote 15 The first of these was that there must be ‘convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief’.Footnote 16 With the report of the UN mission investigating the Ghouta attack not published at the time,Footnote 17 the UK did not, and arguably could not, provide anything to suggest that this was the clear position of the international community. Instead, in apparently arguing that this was a case of such extreme humanitarian distress the UK claimed that
[t]he 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.Footnote 18
Yet, with Russia and China representing two States that clearly did not take the position that the attack in Ghouta was the responsibility of the Assad regime, it was unconvincing for the UK to claim that the extreme humanitarian distress created by the attack provided a basis upon which to launch a forcible response against this party to the conflict.
Secondly, the UK claimed that ‘it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved’.Footnote 19 No guidance was provided as to how this objective clarity was to be identified. Yet given the clear opposition by many States in the context of the Syria crisis to the use of force in the absence of the imprimatur of the UN Security Council (UNSC) it was again an awkward claim for the UK to make.Footnote 20 It was, nonetheless, asserted that previous attempts by the UK and its international partners to secure a resolution of this conflict through the UNSC had been blocked and that ‘[i]f action in the Security Council [was to be] 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’.Footnote 21
The last of the conditions set out in the opinion was 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 (ie the minimum necessary to achieve that end and for no other purpose)’.Footnote 22 In this sense the UK was clear that ‘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’.Footnote 23 Given that the necessity requirement had been seemingly addressed in the second of the conditions above, this last condition appeared to be more concerned with building a case as to the proportionality of any prospective action as it was claimed that ‘[s]uch an intervention would be directed exclusively to averting a humanitarian catastrophe, and the minimum judged necessary for that purpose’.Footnote 24
What is interesting is that the UK did not seem to claim to be responding in order to put an end to a humanitarian catastrophe so much as to avert one by the Assad regime, or more accurately to ‘deter’ and ‘disrupt’ its plans for one and ‘degrade’ its capabilities for creating one through the use of chemical weapons.Footnote 25 Indeed, ‘[g]iven the Syrian regime's pattern of use of chemical weapons over several months’, forcible measures were deemed necessary as ‘it is likely that the regime will seek to use such weapons again’.Footnote 26 Ultimately, while it was made clear that the humanitarian situation as things stood was of concern, there was, in a sense, an anticipatory thrust to the possible use of force.Footnote 27 Furthermore, it was noteworthy that the UK characterized the action as ‘legally justifiable’,Footnote 28 as opposed to simply lawful, and humanitarian intervention as a ‘doctrine’,Footnote 29 as opposed to a right, and that it felt the need to stress that the action it would take would be an ‘exceptional measure on grounds of overwhelming humanitarian necessity’.Footnote 30 This raises the question as to whether, and if so how, the legal justification of humanitarian intervention that the UK relied upon for any prospective use of force against Syria can be reconciled with the lex lata.
III. THE LEGAL OPINION AND THE LEX LATA
The doctrine of humanitarian intervention has traditionally drawn a range of views from scholars utilizing various theoretical underpinnings to support their arguments.Footnote 31 Opinions or perceptions as to the contours of the lex lata in the area of the use of force, perhaps more than any other area of the law, appear to rest to a great extent upon the ‘observational standpoint’ of the assessor.Footnote 32 These observational standpoints reflect underlying differences in methodological approaches to the formation, and even the purpose, of international law. In setting out the main divides between these methodological approaches Olivier Corten has separated the approaches into the ‘extensive’ approach, with its focus on the customary source of an obligation or right, the physical elements of State practice, and the ‘policy-oriented’ approach to interpreting the normative significance of this practice, and the ‘restrictive’ approach, which sees greater equality between the sources of legal obligation, perceives the justificatory discourse engaged in by States as of greater significance than the physical actions that it is used to justify, as well as focusing upon the gathering of views of States in general before discerning any change in the law.Footnote 33
In this respect, the significance of the UK's legal opinion in 2013 in support of a specific legal right of humanitarian intervention is heightened by the fact that towards the end of the Cold War, in 1986, the UK Foreign Office produced a policy document in which it took the view that:
the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons: first, the UN Charter and the corpus of modern international law do not seem specifically to incorporate such a right; secondly, State practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation. … In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law… the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal.Footnote 34
While a critical analysis of the above methodological approaches to the law is beyond the scope of this contribution, if we are to accept Corten's two broad classifications it appears that the UK in 1986 adopted a restrictivist position in assessing the lex lata on the law of humanitarian intervention in the absence of an authorization from the UNSC while, in 2013, it distinctly took a more extensivist approach. The purpose of this section is to briefly examine the UK's position as to the lex lata in 1986 and what, if anything, occurred in the intervening years to 2013 that may have impacted upon its position so dramatically.
A. Reading ‘the UN Charter and the Corpus of Modern International Law’
The prohibition of the threat or use of force, which is the primary norm under focus here, is both contained within the UN Charter and in customary international law.Footnote 35 While not necessarily strict formalists, those within the restrictivist camp do at least see equality between the treaty and customary sources of a rule.Footnote 36 Although the two sources of the obligation are not necessarily identical,Footnote 37 there is nothing to indicate they are, or have been at any point since 1945, different to any significant degree. It is also difficult to see how they could be any different given that, in the absence of an express intentional limitation by States, any relevant State practice would be of significance both for (re)interpreting the Charter and modifying the customary prohibition.
As explained below, the emergence of a forcible right of humanitarian intervention would mean that States would prima facie be acting in direct contravention of their UN Charter obligation to refrain from the threat or use of force. States may, of course, take the unlikely step of expressly rescinding or modifying their obligations under the UN Charter so as to permit humanitarian intervention.Footnote 38 Yet, in the absence of such an event one cannot simply ignore or exclude the significance of this source of the prohibition —and States’ Charter obligations in general—in terms of the brake it places upon the possibility for normative evolution.Footnote 39 One may not in this sense simply choose instead to focus upon the arguably more malleable customary source of the norm to provide the answer sought. In the absence of a clear agreement amongst States to limit or exclude the significance of Article 2(4) no change in the law can emerge without particular consideration being given to this fundamental provision and how it might be (re)interpreted.
It bears recalling that Article 2(4) provides that:
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.
While self-defence and UNSC authorization exist within the Charter as the two established exceptions to the prohibition,Footnote 40 it is also notable that Article 2(4) itself does not expressly allude to any exceptions, which at least raises the possibility that humanitarian intervention is, or could be, an implied exception. The issue can be distilled into two separate components: whether the text of the prohibition of the use of force and the UN Charter in general might be interpreted to permit States to engage in humanitarian intervention or whether such an implicit exception was adopted at the time, or has subsequently emerged. Indeed, the meaning of even fundamental provisions such as Article 2(4) do not necessarily remain static and may be subject to a process of (re)interpretation and change if the vital required element (that is correctly asserted by the restrictivists) of general agreement amongst the State parties to the Charter is present.Footnote 41 Authority for the proposition that agreement between the parties is necessary for an authoritative interpretation of a treaty and its provisions can be found in the Vienna Convention on the Law of Treaties (1969) (VCLT).Footnote 42 In this respect, although it has been said that ‘[t]he stance on intervention is … to some extent a question of choice, to which there is no clear-cut answer’,Footnote 43 if the substantive law fails to provide an indisputably clear answer, as the UK's 1986 statement appears to allude to in the context of the UN Charter and humanitarian intervention,Footnote 44 then a resort to any relevant procedural law, in this case the VCLT, becomes justifiable. Therefore, regardless of what the ordinary meaning of the text of a treaty provides, a special meaning may be given to it if there is discernible general agreement for such an interpretation.Footnote 45
It would have been straightforward for Article 2(4) of the Charter, inclusive as it is of no express exceptions, to simply state that ‘[a]ll Members shall refrain in their international relations from the threat or use of force’. Instead, however, it included what may be seen as unnecessary, not to mention clumsy, additional wordage. The travaux préparatoires of the Charter indicates that the intention of the drafters of the Charter regarding the inclusion of the phrase ‘against the territorial integrity or political independence of any State’ was to give emphasis to the protection of these two attributes of Statehood as opposed to providing any form of qualification or limitation to the prohibition of the threat or use of force.Footnote 46 The argument that force which does not deprive another State of all or a part of its territory, or that does not remove a government or deprive it of any meaningful independence, is excluded from the purview of Article 2(4) is one that has been found mainly within the scholarly literature.Footnote 47 While it was made on a few occasions by States prior to the publication of the UK's policy document in 1986Footnote 48 there is nothing to indicate that it had become an agreed interpretation regarding the breadth and scope of Article 2(4), arguably leading the UK to adopt the position it did at that time. Although this particular interpretational argument has crept into the discourse of States since,Footnote 49 this has again been exceptional leading one to conclude that the interpretive presumption found in the travaux had not been overturned by the time the UK published its legal opinion in 2013.
Along similar lines, it might be argued that as opposed to being ‘inconsistent with the Purposes of the United Nations’ some uses of force, such as those for humanitarian purposes, would, if anything, in fact further those purposes.Footnote 50 However, an examination of the Charter fails to support this argument. It is true that the preamble to the Charter prominently states that one of the founding principles of the UN is to ‘reaffirm faith in fundamental human rights’, with the Charter later going on to state the UN shall ‘promote … universal respect for, and observance of, human rights’Footnote 51 and that ‘[a]ll Members pledge themselves to take joint and separate action in co-operation with the Organization’ for the achievement of this purpose.Footnote 52 Yet, this somewhat promotional and aspirational language stands in contrast to the obligatory language found in Article 2(4), which states clearly that members of the UN ‘shall’ refrain from the threat or use of force.Footnote 53 It has been argued that the strict adherence to such an interpretation of this norm is only feasible if the collective security system contained in Chapter VII of the Charter functions as envisaged.Footnote 54 If not, then Article 2(4) must be interpreted to permit forcible measures that further the purposes of the UN, in particular the protection of human rights. In such circumstances the argument that forcible measures might be justified in the cause of ‘human dignity’ was advanced strongly during the Cold War when elements of the collective security system were largely dysfunctional.Footnote 55 However, this argument was not one openly advanced by States and did not appear to find favour in the UK's statement in 1986.
The UK's reference in its 1986 statement to the corpus of ‘modern international law’ is perhaps a reflection of the fact that such a restrictive interpretation of Article 2(4) as adopted there also finds support in the Declaration on Friendly Relations of 1970, which in many respects was an elaboration upon this relatively brief provision of the UN Charter at a time when it was clear that the UNSC did not function as envisaged.Footnote 56 In connection with the prohibition it states in unqualified terms that ‘[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State’, thus apparently offering confirmation that Article 2(4) does not provide for a right of unilateral humanitarian intervention regardless of the operational realities of the collective security apparatus.Footnote 57 More recently, the 2005 World Summit Outcome Document did not divert from this position or alter the Charter arrangements for the use of force, in particular in light of the emergence of the R2P concept.Footnote 58 In fact, ‘[i]n that regard, the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter’.Footnote 59 On a regional level, while the African Union has provided itself with the right to ‘intervene in a member State … in respect of grave circumstances …’,Footnote 60 it arguably ‘provides a basis for humanitarian intervention among its member states by way of consent’,Footnote 61 and thus does not represent a violation of, or attempted modification to, the prohibition of the threat or use of force. In short, no agreement has been made to either alter or subsequently interpret the Charter to provide for a right of humanitarian intervention. On the contrary, activity within the UN General Assembly would suggest quite the opposite, in that, while the exact parameters of the prohibition or the exceptions to it have not been discussed or set out in any detail, the general prohibition has been expressly reaffirmed, without any indication of a restriction to it or the addition of further exceptions.Footnote 62
In the post-Cold War period arguments of an extensivist nature in light of UNSC paralysis could not, on the one hand, be so easily made, with the UNSC demonstrating its ability to act on many occasions in the face of humanitarian crises.Footnote 63 Yet, on the other hand, the rise in willingness and ability of the UNSC to act has only served to highlight further the cases in which the Council has not acted. As such, arguments regarding intervention in light of UNSC abstinence have not entirely dissipated.Footnote 64 However, and as will be discussed in the next section, when States have made arguments favouring intervention they have not been so much based upon a particular interpretation of the UN Charter, but more generally upon a ‘humanitarian necessity’. As such, it becomes important to address in more detail the next element in the UK's statement of 1986, that is, State practice.
B. Interpreting ‘State Practice’
While agreement between the parties to any implied exception to the Charter—either at the time of its adoption or subsequently—is necessary, this agreement can be discerned through ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.Footnote 65 Some restrictivists would argue that regardless of the humanitarian outcomes of an intervention there is only the possibility for normative impact if it is accompanied by the invocation of a ‘new right’ or ‘claim that a modification of the rule occurred’.Footnote 66 Indeed, the lack of such an invocation or claim arguably led the UK to adopt the view in 1986 that there were no Cold War precedents for a right of humanitarian intervention, despite acknowledging the fact that incidents had occurred that might be construed as such. However, this would seem to take an overly formalist position. If a series of interventions for humanitarian purposes that took place over an extensive period of time, by different States, and in different contexts went unchallenged, it would be difficult to claim that this practice was entirely irrelevant to the interpretation of Article 2(4) despite the lack of reliance upon a novel right of humanitarian intervention and whether or not this provision was directly referred to at any stage. To claim otherwise would simply be legal fiction. Yet at no point during the UN Charter era has such an unchallenged practice occurred.
The three relevant incidents that both the extensivists and restrctivists refer to during the Cold War era are India's intervention in East Pakistan (1971), Vietnam's intervention in Cambodia (1978–79), and Tanzania's intervention in Uganda (1979).Footnote 67 However, while the extensivists highlight the humanitarian outcomes of these interventions, it remains that no discernible agreement by States emerged from any of these incidences that forcible humanitarian intervention had become legally permissible. The acting States themselves did not make such a claim, placing emphasis instead upon claims of self-defence,Footnote 68 and the incidents were followed with at least some condemnation from States party to the UN Charter and in some cases from the UN organs themselves.Footnote 69 As such, while the UK in its statement of 1986 gave a tentative nod to the extensivists by acknowledging that this period ‘at best provide[d] … a handful of genuine cases of humanitarian’ it ultimately showed its restrictivist hand by concluding that ‘on most assessments’ it provided ‘none at all’.
Furthermore, it is difficult to interpret the practice that occurred between the UK's policy document of 1986 and its legal opinion in the context of Syria in 2013 as exhibiting the required agreement for a (re)interpretation of Article 2(4). Ironically, given its rejection of both the existence and prudence of a right of humanitarian intervention in 1986, the UK has been the leading proponent if not of an express legal right of humanitarian intervention then of the fact that interventions for humanitarian purposes can on occasion be legally justified. It may have been the UK's concern for the ‘costs in terms of respect for international law’ that prevented it from expressly fully endorsing a shift in the law to incorporate a full-fledged right of humanitarian intervention, but such concerns of a prudential nature did not get in the way of it being involved in forcible interventions in both Iraq (1991–2003) and Kosovo (1999) that were undertaken ostensibly for humanitarian purposes but without authorization from the UNSC.Footnote 70
While these interventions of a humanitarian nature occurred they received resistance and opposition, sometimes very strongly, from many parties to the UN Charter. Although the international community appeared to implicitly condone the earlier phases of the military campaign in Iraq,Footnote 71 widespread condemnation began to be audible after 1996.Footnote 72 When France and Russia—who represented two of the four States that had established the safe havens and no-fly zones—ended their participation claiming that action was being taken that went beyond the original aims of the establishment of the safe havens and no-fly zones, this cannot but be seen as a strong indicator that the UK and US were no longer acting within what the international community deemed acceptable, and thus within the bounds of legality.Footnote 73 On the other hand, NATO's intervention in Kosovo proved controversial from the outset with several UN members claiming it was a violation of the UN Charter.Footnote 74 Furthermore, shortly afterwards the G77, which is representative of the majority of the world's States, rejected ‘the so-called “right” of humanitarian intervention, which has no basis in the United Nations Charter or in the general principles of international law’.Footnote 75 As such, while action has taken place with a humanitarian grounding there simply is insufficient evidence to plausibly claim that agreement between the parties to the UN Charter has been established through practice that humanitarian intervention now exists as a further implied exception to the prohibition of the use of force found in Article 2(4).
There has been, perhaps consequently, a discernible resort to arguments of a customary international law nature in claiming that a right of humanitarian intervention existed or was emerging. It is perhaps of significance in this respect that in its Legal Opinion of August 2013 the UK refrained from making any reference to the UN Charter, like it did in its 1986 policy document. While the UK took a restrictivist approach in its 1986 statement and put much store by the fact that a right of humanitarian intervention could not be found within the UN Charter, it was just a few years later when a discernible shift towards an extensivist outlook, and the general focus on the customary source of a right, was witnessed. For example, during a House of Commons Foreign Affairs Select Committee debate in 1992, the then Deputy Legal Adviser at the Foreign and Commonwealth Office, Anthony Aust, stated that the UK's action in Iraq after the end of the Gulf War was ‘in exercise of the customary international law principle of humanitarian intervention’, with no longer any mention of the UN Charter or how the existence of such a customary principle might affect the UK's obligations under it.Footnote 76 No events had seemingly occurred between 1986 and 1992 to bring about such a change. However, such references to a specific legal right of humanitarian intervention, and in particular the source of such a right, were generally, and notably, absent in connection with both the intervention in Iraq and NATO's intervention in Kosovo. Indeed, most of the intervening States, including the UK, based their action upon the justification of ‘humanitarian necessity’.Footnote 77
In this respect, while many scholars saw the NATO intervention as a straightforward violation of the law,Footnote 78 others, while maintaining the illegality of the actions, were prepared to look at the surrounding factors, including the perceived humanitarian necessity, in viewing the intervention as unlawful yet excusable or legitimate in some way. Bruno Simma, for example, was of the opinion that in this case only a ‘thin red line’ separated the intervention from being lawful, but that no independent right of humanitarian intervention had emerged or should emerge.Footnote 79 Thomas Franck, in similar tones, saw several elements to the intervention that acted as mitigating factors.Footnote 80 However, Antonio Cassese, while recognizing the illegality of the intervention, also could not escape the necessity felt by many of the acting States.Footnote 81 As such, it was argued that while there was no opinio juris for the legality of forcible humanitarian interventions of this nature, with many States stressing that it was an exceptional measure, there was nonetheless a discernible ‘opinio necessitatis’ with the potential to have a normative impact if witnessed again in the future. This would mean that even if States did not specifically invoke a ‘legal right of humanitarian intervention’ one could not rule out that subsequent actions taken upon the basis of humanitarian necessity with the acting States seemingly convinced of their legality would have an impact upon the law governing the use of force. Yet, while it might be argued that such opinio necessitatis for forcible action has been discernible in the context of Syria,Footnote 82 this has only been by a handful of States thereby placing question marks at the very least over its normative impact.
In the context of the Syrian crisis, Daniel Bethlehem, although refraining from arguing conclusively that a lex lata right of humanitarian intervention existed, instead set out a ‘tapestry’ of elements and, in drawing the various threads together, argued that ‘there is a case to be made in favour of the emergence of a tightly constrained principle of humanitarian intervention that is consistent with traditional conceptions of customary international law’.Footnote 83 Upon this basis the argument is made that humanitarian intervention ‘is acceptable in the light of the progress of the humanistic values at the heart of the international community. It is objectively necessary to allow certain unilateral actions in cases in which the collective security mechanisms have not functioned.’Footnote 84 It is again interesting though that this ‘case’ for a right of humanitarian intervention was located within the confines of ‘traditional conceptions of customary international law’, with little satisfactory consideration given to Article 2(4) of the UN Charter.
A key thread in Bethlehem's tapestry is the emergence of the R2P concept, a concept which might be thought to provide fresh impetus for an express attempt at establishing a right of humanitarian intervention. But aside from the initial report of the International Commission on Intervention and State Sovereignty (ICISS) where all options for invoking the responsibility to react element of the concept were addressed,Footnote 85 various reports of the UN and the World Summit Outcome document of 2005 have fixed this responsibility squarely upon the UNSC itself.Footnote 86 In this respect, while there was some uncertainty as to whether the military action ultimately authorized by the UNSC in Libya in 2011 was done so upon the basis of R2P,Footnote 87 there was no real suggestion that action could have been taken without such authorization.Footnote 88 Despite discussion by the ICISS itself,Footnote 89 no residual responsibility has been placed upon States or regional actors should the UNSC for any reason refrain from taking forcible action in the face of what appears to be a humanitarian situation.Footnote 90 Given that as things stood at the time of the publication of the UK's opinion in August 2013 the UNSC had no chance of authorizing action in Syria, there was an air of tokenism about the UK's statement in its opinion that it was:
seeking a resolution of the United Nations Security Council under Chapter VII of the Charter of the United Nations which would … 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.Footnote 91
In the context of this background, it is, however, of no real surprise that the UK did not even mention, let alone rely, upon R2P in its legal opinion. Such reliance would not, in any case, have bolstered a justification which had, as highlighted above, no basis within the lex lata.
IV. PROVISIONAL CONCLUSIONS REGARDING THE IMPACT OF THE OPINION UPON THE LEX LATA
The significance of the UK's legal position is that it was the first formally expressed and unequivocal invocation by any State of the legal doctrine of humanitarian intervention. In this respect it had the real possibility of making an impact upon the lex lata. Yet, as noted above, for any impact to be discernible there would need to be widespread agreement amongst State parties to the UN Charter. By contrast, there was very little apparent reaction, and no audible support for it. The UK was not alone in favouring a possible forcible response, with other States such as Denmark, France and the US offering up justifications for a prospective use of force. While the French government avoided any mention of international law in its justifications,Footnote 92 a day after the British government released its legal opinion the Danish government published its own opinion on prospective forcible action against Syria without UNSC authorization, using Kosovo as a precedent and similarly providing three conditions for the legality of any humanitarian intervention.Footnote 93
Even the US did not offer any support for the UK's legal opinion, despite showing a willingness to use force in response to the chemical weapons attacks in Syria.Footnote 94 Instead, in taking an exceptional approach to the use of force, President Obama, in an address to the nation on 10 September 2013, focused on deterrence and the prospect of further attacks, the protection of allies in the region, and enforcing the norm against the use of chemical weapons.Footnote 95 It was thus somewhat telling that just a few days earlier on 8 September 2013 in a brief Statement, White House Counsel, Kathryn Ruemmler, stated that while any forcible action against Syria without authorization by the UNSC would not fit ‘a traditionally recognized legal basis under international law’, it would nonetheless be ‘justified and legitimate under international law’.Footnote 96
However, not only were the acting States on the whole not willing to rely expressly on a legal right of humanitarian intervention, but there was also a notable amount of condemnation or, at best, caution, in regard to the use of force in Syria. Soon after the publication of the UK's legal opinion, the Russian President, Vladimir Putin, published an op-ed in the New York Times in which it was proclaimed that;
[t]he law is still the law, and we must follow it whether we like it or not. Under current international law, force is permitted only in self-defense or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.Footnote 97
What is significant is that this sentiment was also shared by many other States. China, Brazil, India, Indonesia and South Africa all held the opinion that action in these circumstances without the authorization of the UNSC would represent a violation of international law and one that they could not support.Footnote 98 Regardless of one's perception of the political leaning of these States, and the perhaps predictable reaction generated by this, it is nonetheless simply not possible to discern any significant impact upon the position of humanitarian intervention under international law in the absence of their support or, at the very least, acquiescence.
However, while the ultimate normative consequences of the UK's legal opinion may not yet be fully known, reliance upon a justification for the use of force was not necessary in 2013 for two reasons. First, the enthusiasm for humanitarian intervention demonstrated by the UK government was in many ways dampened by the vote of the House of Commons against any possible participation in military action by the UK.Footnote 99 Secondly, less than a month later the UNSC adopted Resolution 2118 (2013) which, as an alternative to military action, required Syria to dispose of its chemical weapons stockpiles and cooperate with the Organisation for the Prohibition of Chemical Weapons.Footnote 100
V. CONCLUSION
It has perhaps gone somewhat unnoticed that in publishing this legal opinion the UK was arguably issuing an unlawful threat to use force. The International Court of Justice was clear in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that ‘if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal’.Footnote 101 As established above, at the point when the opinion was issued, there was no basis upon which to plausibly claim that a right of humanitarian intervention existed under international law. This is not to say that one should not, or could not, exist in the future, but that that such a right did not exist at the time the threat was made.
Yet, despite the fact that we have witnessed a violation of international law, it is also difficult to conclude that it was not in some ways a constructive development with at least some positive outcomes. With the publication of this opinion the UK has now unequivocally established itself as the norm entrepreneur in the context of humanitarian intervention. While for a long time restricted to the discourse of scholars and commentators, the legal doctrine of humanitarian intervention has now formally moved into the discourse of States with a justificatory precedent for the UK or other States to draw upon in the future.
For international law to evolve with the times and for a treaty interpretation or customary international law modification to take place, this initial violation is a key stage in generating the necessary reaction to gauge where States stand, thus providing weight to arguments that the law has either shifted or that the status quo has been maintained. Its publication can in this sense be seen as a victory for the ‘restrictivists’ as it failed to spark much debate, or at least that which might be expected from such a forthright publication. Indeed, it is very difficult to perceive the UK's legal opinion, or even the Syria crisis more broadly, as a ‘law-making moment’ in the context of the doctrine of unilateral humanitarian intervention.Footnote 102 Not only did it create relatively little reaction and dialogue, but the underlying basis of its key proposal was rejected by other States. In addition, the right was not similarly adopted by many States which supported military action on this occasion, and it was followed very quickly by a non-forcible UNSC mandated alternative solution to the particular crisis. As such, those in favour of forcible intervention without UNSC authorization will have, if anything, a tougher hurdle to surmount in justifying any such prospective action upon the emergence of the next humanitarian crisis to make it on to the agenda of the international community.
APPENDIX
Chemical Weapon Use by Syrian Regime: UK Government Legal Position
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).
5. 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.
29 August 2013
