Tomorrow David Cameron will ask the House of Commons to vote on whether or not the UK should be part of the Coalition against Isis. The Coalition has a strategy of air strikes on both Iraq and Syria, with a current US tally of at least 200 air strikes in recent weeks. The Commons at this stage will be asked to vote on attacks on Iraq only.
Anyone with an ounce of humanity and decency cannot help but be repulsed by the ghastly and much publicised acts of Isis including the beheading of three Western journalists. But it is vitally important in such times of heightened emotional response to stand back and take stock. It cannot be the right course of action for Parliament to approve a strategy that involves an unlawful use of force. If air strikes and other military action on the ground are unlawful, how can these actions be justified under other philosophical or faith principles?
International law, which the UK must follow as a matter of its own policy, could not be clearer. There are two possible lawful uses of force under the UN Charter. The first is the state’s inherent right to use force in self-defence under Article 51 – clearly not in play here. The second is when the UN Security Council authorises force under Chapter VII of the Charter, usually using the well-understood authorisation to a Coalition of ready and willing states to use “all necessary measures” to achieve the Security Council’s stated objectives. An example of such lawful use of force was Security Council Resolution 678 authorising the Coalition to remove Saddam Hussein’s forces from Kuwait in November 1990. Although Tony Blair has tried to introduce a third route into legality, namely humanitarian intervention, starting with his famous Chicago speech in April 1999, this doctrine remains highly controversial and is not part of international law. In any event it is difficult to see how airstrikes from thousands of feet, with the obvious risk of killing and wounding innocent civilians, can rationally be said to be an action of humanitarian intervention.
Ed Miliband was legally absolutely correct when he said on Tuesday that he would not support British military action against Isis in Syria unless there is a Security Council Resolution authorising it. The same reasoning, of course, applies to air strikes and military action in Iraq. Current commentary seems to assume that an Iraqi invitation to use force makes such attacks legal. But that is not the case. The consent, invitation or acquiescence of the present Iraqi government – whilst interesting for the purposes of considering whether there is European Convention on Human Rights jurisdiction if UK Special Forces might have their “boots on the ground” – is utterly irrelevant to the issue of legality of the use of force by air strikes, or otherwise, in Iraq.
The UN Security Council meeting last night did not provide Chapter VII authorisation. If David Cameron wants air strikes and other military action to be lawful they must have such an authorisation. The UN Security Council adopted a binding resolution compelling states to prevent their nationals joining jihadists in Iraq and Syria but it did not authorise military attacks. Discarding the rule of international law in March 2003 in the illegal US and UK-led invasion of Iraq proved to be utterly disastrous and ironically helped create the present leader of Isis, Al Baghdadi, who was unlawfully interned for four years by the US under an unlawful regime created by US and UK lawyers. Parliament learnt from that monumental error when it refused to back Cameron’s planned military action against the Syrian regime a year ago. It should stand firm again tomorrow in its support for the rule of law.
Kate Hudson, is general secretary of CND. Phil Shiner is the principal solicitor at Public Interest Lawyers