Leading experts in international law have attacked the government’s legal case for military strikes against Syria, warning it “does not set out a sound or persuasive legal argument” and fails to prove that all other avenues to avoid further chemical weapons attacks have been exhausted.
Philippe Sands QC, professor of international law at University College London, said the argument set out on Thursday by the attorney general, Dominic Grieve, “is premised on factual assumptions – principally that the weapons were used by the Syrian government, that the use of force by the UK would deter or disrupt the further use of chemical weapons – that are not established on the basis of information publicly available”.
Grieve’s justification, set out in just over a page of arguments, claims military action would be legal “under the doctrine of humanitarian intervention” and that even “if action in the [UN] 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”.
Sands said that in the absence of the UK invoking any right of self-defence or a UN security council resolution authorising force, the coalition’s case is premised on a legal argument about humanitarian intervention that is controversial but could be available under certain conditions.
“However,” Sands said, “as the facts are not made out, the note does not set out a sound or persuasive legal argument. If Iraq teaches us anything, it is that parliament must insist on seeing the full legal advice, caveats and all, and the full evidential basis on the key factual issues before proceeding to take any decision.”
The government claim in its legal note that it is allowed to use strikes to “deter and disrupt” the further use of chemical weapons is also too lax, according to Dapo Akande, co-director of the Oxford institute for ethics, law and armed conflict.
“Even if there is a rule allowing intervention to avert a humanitarian catastrophe that rule would not simply permit action to deter and disrupt use of chemical weapons,” Akande said. “This standard is too lax. It would be a rule about preventing and about stopping. The UK is not proposing to take action which will actually prevent or stop further uses of chemical weapons.”
Grieve said the UK could legitimately take military action to “alleviate the scale of the overwhelming humanitarian catastrophe” as long as three conditions are met. That 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”; it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved”; and the proposed use of force is “proportionate to the aim of relief of humanitarian need”.
Akande said the case falls down on the second point because there are still avenues to be explored.
“There are measures that the UK/US have not yet tried, for example trying to get approval from the UN general assembly under the ‘uniting for peace’ procedure,” he said. “This would allow the general assembly to take action in cases where the security council is blocked by threat or use of the veto”. He also said “action could be taken to refer the matter to the international criminal court – which is also action to deter further uses”.
Akande added that when the attorney general’s advice says international law allows Britain to take measures to alleviate a humanitarian catastrophe without security council approval, this can only be in reference to customary international law which is based on the “views and practices of states”.
He said there is “very little evidence of state support for this view. Indeed most states have explicitly rejected this view.”
The legal advice was published at the same time as a British intelligence assessment that concluded it was “highly likely” that the regime of Bashar al-Assad was responsible for the chemical weapons attacks in Syria last week.