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The Syria Airstrikes: Creative Ambiguity and Transient Definitions

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About The Author

Rebecca Von Blumenthal (Former Regular Writer)

Rebecca graduated from King's College London in July 2014 with a 2.1 LLB with European Legal Studies. Rebecca has a deep-rooted interest in human rights, criminal law, public law and clinical negligence. Her desire to scrutinise and proliferate accurate information concerning these topics has lead her to pursue a career combining writing with law reform on a practical and significant level.

In September 2014, Prime Minister David Cameron told Parliament that ISIS was ‘an evil against which the whole of the world should unite.’ The British Government has designated ISIS ‘a clear national threat to the UK, and a global threat to our international partners and the region,’ and has said that the UK is working closely with allies to ‘drive back, dismantle and ultimately destroy ISIS […] and what it stands for.’

The intention to dismantle ISIS escalated dramatically after the Paris attacks on 13 November 2015. Following a vote in the House of Commons, British airstrikes commenced in Syria, signalling Britain’s entry into what may be a long war. Britain now finds itself at the mercy of events which are being shaped by numerous other players in the conflict, all of whom have their own agendas: Russia, while claiming an operation against ISIS, is actually attacking enemies of Syria’s President Bashar al-Assad; the US on the other hand is bombing ISIS in Syria while treating the country as peripheral to a central conflict in neighbouring Iraq.

As the political resolve remains weighted in favour of military action, it is fundamental to ensure Parliament’s actions are scrutinised and compliant with international law. Particularly following the heavily-criticised 2003 invasion of Iraq, legal justification for such action must be a high priority.

‘Targeting killing’

Public political conversation on drone strikes, particularly by the Obama administration, is often accompanied by reassurances that all operations are precise and a favourable alternative to troops on the ground. It is claimed that drones will only be employed when there is an ‘imminent’ threat and ‘near certainty’ that the target will be reached and removed in circumstances that minimise the loss of civilian life.

Over time, however, it has become abundantly clear that the terms used to justify such killings are increasingly further removed from their commonly understood meanings. Legal terms have been redefined or entirely ignored in order to allow operations to proceed undisturbed and unchallenged. The first public evidence of this appeared in September 2011 when John Brennan, the White House counterterrorism adviser, claimed that the US would strike only to avert an ‘imminent attack.’ He added, however, that Al-Qaeda was too good at concealing imminent attacks, therefore all its attacks would now be classified as imminent.

The UK took a similar approach in the August drone strikes (analysed in a previous Keep Calm Talk Law article ‘Drone Strikes, ISIS and the Right to Self-defence’ by Alexander Barbour), in which UK citizens fighting alongside ISIS were targeted by an unmanned aerial drone outside formal conflict, were justified as an ‘act of self-defence’, but uncomfortably resembled the US style of targeted killing. While Cameron can authorise strikes without a parliamentary vote in the event of an emergency, critics have been questioning the need for urgency and the legality of the operation.

In light of the US drone policy and the questionable legal justifications for the drone strikes conducted by the UK in August, it is necessary and important to continuously scrutinise the actions of Parliament. Consideration needs to be given to the appropriate process by which military actions can be approved, particularly concerning their basis in law.

Legal justifications

The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today.

On 26 November, Prime Minister David Cameron made a statement to parliament setting out the case for UK air strikes against ISIS in Syrian territory. He argued that there is a clear legal basis for military action against ISIS: the collective self-defence of Iraq and the individual self-defence of the UK. In his statement, he also referred to the UN Security Council Resolution 2249, adopted unanimously by the Council on 20 November. On 3 December, after an all-day debate in Parliament, MPs in the House of Commons voted 397 to 223 in favour of sending RAF Tornadoes into Syria.

It is evident that the Paris attacks had a noticeable effect on Westminster, tilting opinion towards military involvement and allowing legal justification to follow. Accordingly, there has been an important shift that sees the legal landscape rapidly adapting and moulding itself to political will. International law has been tested close to its limits as it bows under the pressure to evolve and accommodate conflicts between governments and non-state terrorist organisations.

While an extensive explanation of drone strikes under international law can be found in a previous Keep Calm Talk Law article by Alex Hitchcock ‘Drone Strikes Under International Law’, the politically influential UN Security Council Resolution 2249 and the legal justifications of individual and collective self-defence that legitimises military action in Syria showcase how international law has been adapting to keep up with events.

UN Security Council Resolution 2249

The use of force in the territory of another state is prohibited under the UN charter and customary international law. However, there are four universally recognised exceptions to this prohibition: UN Security Council authorisation; consent of the state on whose territory the operations are conducted; individual self-defence; and collective self-defence.

The UN Security Council is responsible for international security and peace. On 20 November, it unanimously adopted resolution 2249, condemning the series of recent terrorist attacks by ISIS. It determines that ISIS constitutes ‘a global and unprecedented threat to international peace and security.’

However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against ISIS, it does not actually authorise any actions against ISIS, nor does it provide a legal basis for the use of force against ISIS in Syria; it does not constitute an exception to the prohibition on the use of force in the territory of another state.

The resolution was not adopted under Chapter VII of the UN Charter, which is usually used to signal that the Security Council intends to take binding action. As the International Court of Justice’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually authorise something. The language used simply ‘calls upon’ states to take all necessary measures ‘in compliance with international law.’ This wording suggests that measures taken should comply with other rules of international law.

Resolution 2249 is constructed in such a way that it can be used to provide political support for military action, without explicitly accepting or rejecting the various legal justifications on which such action can be based or providing legal authority from the Council itself.

While it appears to give support for military action to be taken, the creative ambiguity in this resolution lies not only in the fact that it does not legally endorse military action, but also that it allows for continuing uncertainty as to the legality of those actions. With no UN Security Council Authorisation, Cameron is still relying on the legal justification of legitimate self-defence.

Self-defence

The inherent right to self-defence (individual and collective) has been cited by Cameron as legal justification for military intervention in Syria, defined by Article 51 of the UN Charter:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Cameron describes the ‘main bases’ of the global coalition’s actions against ISIS in Syria as the collective self-defence of Iraq. He claims that by participating in collective action in support of the Baghdad government targeting ISIS bases in neighbouring Syria, from which attacks on Iraq are being organised, is lawful.

In justifying individual self-defence, he argues that ISIS’s campaign against the UK and its allies has reached the level of an ‘armed attack’ against them. To justify this claim to self-defence, it must be shown that the threatened attack is imminent and that the act of self-defence is both necessary and proportionate. If, as is the case, self-defence is invoked against a non-state armed group, it must be shown that the territorial state in which the armed group is found is 'unwilling or unable' to put an end to the group’s activities.

The temporal element of the criterion of imminence is not conclusive; factors including the gravity of the attack, the nature of the threat and the capability of the attacker are all relevant. Action against past attacks risks being categorised as reprisal, which is unlawful in peacetime; action against future attacks might be considered pre-emptive or preventative, which again is generally considered unlawful.

Although Article 51 of the UN Charter refers to force in self-defence ‘if an armed attack occurs’; legal precedent from the Caroline affair in 1837 suggests that under customary international law, a state threatened with an ‘imminent’ armed attack may be entitled to take appropriate measures to repel such a threat. ‘Imminent’ defined the need for action to be ‘instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’

Over the past few months, the way in which the UK has interpreted the term ‘imminent’ in relation to the threat of ISIS has changed quite significantly, closely resembling that of the US style of targeted killing. With no specific examples of what constitutes the threshold for an imminent threat, by both the US and the UK, such a shift in stance is undoubtedly a significant cause for concern.

A US definition

While the UK has never openly opposed the American choice following 9/11 to regard acts of terrorism as examples of war, they had up until this point treated terrorism as criminal activity. Counterterrorism operations were the responsibility of civilian security services. Since the August drone strikes however, Britain has set a new precedent for its actions in counterterrorism operations that closely resemble that of the US.

Although the administration portrays drone strikes as an alternative to a broader and bloodier military campaign, this US style of targeted killing actually amounts to killing military-aged males carrying weapons in areas where terrorists operate. According to a 2013 estimate by a US senator, at least 4,700 people have died in US drone strikes, five of which have been American citizens and at least two of them have been hostages of ISIS whom the US did not mean to kill. This hardly epitomises an emblematic drone policy.

Over the past four decades, US drone policy has evolved into a complex legal web with the first authorisations to use lethal force against specific terrorists dating back to the Reagan administration. Following the September 11 attacks, the US employed the legal logic (also supported by a UN Security Council Resolution) of strikes against terrorists falling under Article 51 of the UN Charter.

Over ten years later, the UK government has adopted a similar legal position, citing Article 51 and justifying military action as an act of self-defence against a known terrorist group, posing terrorist threats against the British public.

The imminence doctrine and self-defence as interpreted by the US failed to deal with covert activity and had to adapt to the style of terrorist attacks. Terrorists came to represent a continuous and ongoing threat of unlawful aggression. It would appear that terrorists do not need to actually be aggressive at the time of the strike, rather their mere status as terrorists qualifies their conduct of posing an imminent threat.

The US has already set a troubling precedent by violating international law in many instances. While the UK’s legal justification of collective self-defence of Iraq is legitimate, the justification of individual self-defence is the cause for concern; the UK is now willing to obfuscate the legal basis behind targeted killings even though the law has not changed.

International law under pressure

Following the Council’s statement that ISIS ‘has the capability and intention to carry out further attacks,’ and the realisation of threat in the attacks in Paris, Tunisia, Lebanon and elsewhere, the new level of threat that ISIS poses has clearly been very relevant to any assessment by individual states of the criteria required for self-defence.

Because of the nature of ISIS and its form of threat - openly saying they are targeting countries - the interpretation of self-defence measures in terms of armed attacks has broadened in scope. What previously would have legally constituted ‘imminent threat’ is being weakened, and although all information is not made public, the international community is undoubtedly moving towards broadening the justification of ‘anticipatory self-defence.’ The time and place of a threat does not need to be known because there is the declared intent to do harm. This is a dangerous approach however, as it opens the possibility of other state actors interpreting this in different ways.

A further concern that has emerged was the recent removal from the official ministerial code of the previous explicit duty ‘to comply with the law including international law and treaty obligations. ’A coalition of human rights groups wrote to David Cameron to reinstate the obligation claiming:

If the [ministerial] code fails to include this reference, then there is a real risk not only that international legal protections will not be extended to those to whom they are due but also that the United Kingdom may be called to account for breaches at the international level.

Indeed, the official Syrian government newspaper ‘Al-Thawra’ seems to think the UK is ‘vaulting over international legitimacy as usual.’ Speaking on Radio 4 Today’s programme, the BBC’s chief international correspondent, stationed in Damascus, said the state media were asking why Britain did not follow Russia’s example and seek permission from the government in Damascus to enter the air campaign. That, however, is an entirely different matter of the political agenda.

Concluding thoughts

The implications of UK military action are potentially far-reaching; not only may the number of people allegedly planning attacks against the UK increase, but also, with the UK actions setting a precedent to follow, the number of countries engaging in future drone attack or other forms of military action can grow as well.

However, many aspects of international law in this area are unclear, and/or depend on evidence which is unlikely to be made public. There have been calls for the government to be clearer and more transparent about what appears to be a change in policy direction, not just on Syria but whom and where the UK will attack overseas.

The rhetoric of George Bush’s ‘war on terror’ and more recently, the French president, Francois Hollande, regarding the Paris attacks as 'an act of war' has shifted the UK’s stance on terrorist threats from the ambit of criminal justice to that of aggressive military intervention. Yet contemporary international law is not entirely equipped to meet the challenges of modern terrorism.

However, while the use of drones in warfare is not unlawful in itself, their use outside of military conflict encourages a culture for an international system that is increasingly violent and not appropriately scrutinised. If the UK is acting in pre-emptive self-defence then the evidence would have to be very strong, not only of imminence, but also of no alternative method of dealing with the threat. The UK’s change of direction against ISIS in Syria must be followed by full investigation and disclosure of the legal advice it has received; the use of drones and military intervention must only be used within a framework of rigorous scrutiny and established procedures.

In the absence of any UN Security Council authorisation, we remain with a resolution that provides political cover and legal justifications that follow a US-style interpretation of international law. Cameron’s legal justifications are adequate according to modern interpretations of self-defence; however, the legality depends on key issues of policy, such as the relationship with Russia, how to get military troops on the ground, the consequences of the Iraq intervention and what the future holds should air strikes turn out to be unsuccessful.

If the UK is to stand alongside its allies, it should do so with a chance of success and within the boundaries of the law, not for the sake of symbolism.

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Tagged: Anti-Terror, Armed Conflict, International Law

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