Do the airstrikes in Syria have a legal justification?

Miranda Nixon and Abroo Khan
1st year undergraduate students in Law

On 2nd December 2015, Parliament voted in favour of a government motion to extend airstrikes to Syria from Iraq against the extremist group ISIS. A few hours later, the first airstrikes were carried out with a second dose followed up soon after. After the 2013 vote against military intervention in Syria have recent events such as the Paris attacks and the November UN resolution[1] changed the legality and the stance on attacking Syria?

Starting with the vote itself, the motion was passed with a majority of 397 to 223 in favour of the bombings with the majority of the Conservatives voting for and the majority of Labour MPs voting against. Despite an overwhelming majority backing Cameron’s decision, according to Gavin Phillipson[2], the actual vote itself would not have even occurred a few years ago. Before the Iraq war, the Prime Minister/ Cabinet held the legal power to command armed forces on behalf of the Crown under the Royal Prerogative. Parliament was not required in this decision until the 2003 Iraq war that the Government decided that a formal vote should be held in Parliament and in 2011 with the conflict in Libya further establishing this decision as a convention. Finally, in 2013, the vote on whether to take military action in Syria created the official precedent necessary for the constitutional convention to exist according to the Jennings’ test. “First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?”[3] Whilst the third part of the ‘test’ had been qualified since 2003, as there were no precedents and thus no belief in being bound by one, a convention didn’t fully come into being. The 2013 vote on Syria was important as it established a clear precedent for the convention and it provided that the Parliament should vote before any military action has been taken.

It is remarkable that it has taken that long for such an important control over the executive to arise. In terms of the doctrine of separation of powers, an important aspect of rule of law, rendering Parliament’s vote a necessity by convention, it creates an extra check on the executive by the legislature meaning that they can no longer take military action without the public backing them. Because of this, the vote on airstrikes in Syria is now more legal than ever, nationally speaking. However, an even larger factor to be taken into consideration is international law.

According to Prof Philippe Sands QC of University College London, there are two ‘classical justifications’ for military action, a UN resolution authorising it or self-defence. Without either of these, the UN Charter bans “the threat or use of force against the territorial integrity or political independence of any state”.[4]

Previously there had been no UN resolution supporting attacks in Syria. However, after the Paris Attacks in November, the UN Security Council backed action against ISIS after Resolution 2249, drafted by France, called for ‘all necessary measures’ to be taken against the extremist group[5].  This might give the UK legal grounds for airstrikes, on the other hand the UN resolution did not specifically call for military action as it didn’t invoke Chapter VII of the UN Charter, which authorises military action[6].

Furthermore, do airstrikes constitute a necessary measure? A ground force is needed if there is to be any hope of quashing ISIS, especially seeing as group members often hidden amongst civilians. Cameron has stated and defended the idea that there are approximately 70,000 ground troops but there are disputes as to the validity of his claim such as these troops only being willing to defend their land and how effective they may be in fighting of ISIS in the first place[7]. This appears to render the legality of airstrikes on the grounds of a UN resolution as ambiguous.

Self-defence might be a reasonable claim when considering the Paris Attacks. Cameron used the argument of self-defence when persuading the House of Commons to vote for the airstrikes. “…Clearly we need a political settlement…My view is that we can’t wait for that political settlement and we should work with allies to keep our own people and our own country safe.”[8] However, are these airstrikes really going to defend the UK or are they just going to make us a bigger target? As previously mentioned, the airstrikes themselves don’t appear to be very useful when compared to other methods ranging from suppressing financing terrorism and preventing foreigners from fighting for ISIS to issuing ground troops or, even trying for a political settlement as Cameron previously mentioned.

The UK can’t even argue on the grounds of defence for Syria as, unlike Iraq where the government asked for help, the Syrian government did not and even if they did, the UK finds them illegitimate anyway meaning that they could be seen as not having the rule of law. In comparison, the UK and all of the other countries conducting airstrikes claim to have rule of law and may just be using this as an excuse to bomb Syria as they do not have a ‘legitimate government’. Overall, the argument of self-defence is just as unclear as the argument of the UN resolution.

In conclusion, whether or not the Syrian airstrikes are legal or not is up for debate. The problem stems from the airstrikes themselves as they neither fully agree with UN Resolution 2249 nor the argument of self-defence. Ultimately, they just seem pointless and a waste of money and effort in an attempt to appear to be doing something amidst the pressure for Western solidarity.

 

 

[1]United Nations Security Council Resolution 2249, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2249.pdf <accessed 11 February 2016>

[2] Gavin Phillipson: ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I), September 2013 UK Constitutional Law Blog available at http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-the-constitutional-significance-part-i/

[3] The Law and the Constitution, (5th ed, 1959), at 136

[4] Tom Moseley, ‘Would UK military action against IS in Syria be legal?’ August 2015, available at http://www.bbc.co.uk/news/uk-politics-33851482

[5] Resolution 2249 (n 1).

[6] http://www.itv.com/news/central/2015-12-02/poll-should-the-government-launch-airstrikes-in-syria/

[7] Sean Swan, ‘If bombing the Middle East was the way to peace, it would be the most peaceful place on Earth’, available at <http://blogs.lse.ac.uk/politicsandpolicy/if-bombing-the-middle-east-was-the-way-to-peace-it-would-be-the-most-peaceful-place-on-earth/ >

[8] Recorded coverage of questions in the House of Commons to prime minister David Cameron from Wednesday 25 November available at <www.bbc.co.uk/iplayer/episode/b06qm7mj/prime-minister-questions-25112015>

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