Islamic State: As a matter of law, we do not need the UN’s permission to attack these criminals

Isis fighters may fantasise about a caliphate, but any state is entitled to stop their rampage

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The Independent Online

MPs who vote tomorrow on whether to go to war with Isis will not have the security blanket of a UN Security Council resolution, so it is important to understand why, as a matter of international law, they do not need it.

They are not being invited to overthrow the regime of a sovereign state, which they wrongly decided to do in the case of Iraq in 2003, or to support a feckless reprisal bombing of Syria, which they rightly rejected last year. Isis is a group of international criminals, committing war crimes and crimes against humanity with genocidal intent, and the right – arguably the duty – to protect their victims does not depend on Russian approval in the Security Council.

Isis has been killing innocent civilians because of their religion and issuing blood-curdling incitements to kill “all non-believers”.  They have been executing without trial, recruiting children as soldiers, taking and killing hostages.  They are, in the Latin phrase used in international law, hostis humanis generis, the enemies of humankind.  As with the pirate, torturer and slave trader, no UN approval is necessary for law-abiding states to use force against such barbarity.

But our complicity in the invasion of Iraq has cast a long shadow; Ed Miliband, for example, has evinced a “preference” for a Security Council resolution.  This is unnecessary and in fact undesirable – action in humanitarian emergencies should not be vulnerable to the veto of the Chinese, or of President Putin.  A resolution was necessary for the invasion of Iraq – a sovereign state where there was no basis for humanitarian intervention. President Bush expressly excluded this justification for his (and our) war.  As for last year’s proposal to bomb Syria, it was a one-off punishment reprisal of questionable legality and doubtful purpose and it was sensibly rejected by Parliament (and people).

Is there any difference (as some MPs seem to think) in the legitimacy of bombing IS in Iraq (which has expressly invited the coalition to do so) and bombing it in Syria?  This is a pettifogging point – going to war should not depend on technicalities (the US justified the Vietnam war on the basis that it had been “invited in” by the puppet government of South Vietnam).  In any event, Syria has not complained and its consent to the attack on its most dangerous enemy can be inferred.  The real question for Parliament tomorrow is whether the attack on Isis is lawful and, if so, whether it is right.

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Syria, where war has already devastated cities like Aleppo, is a morally ambiguous case (AFP)

The first issue is clear:  however much Isis fighters may fantasise about a caliphate, they have no sovereign claim: they are international criminals, and any state or coalition of states is entitled to stop their rampage.  The second question is hinged with practical difficulties, but the international community has a duty, under the Genocide Convention, to take action to stop those who intend to destroy, even in small part, any racial or religious group.

This duty to act against genocide arises independently of Security Council approval, as does the right to use force to stop crimes against humanity.  There is a direct precedent: Nato’s action to stop ethnic cleansing in Kosovo by bombing Milosevic’s forces without a Security Council resolution which Russia, Serbia’s ally, would have vetoed.  Russia was then forced to move a resolution condemning Nato, which it lost overwhelmingly – as it would now lose any resolution condemning the anti-Isis coalition. 

It is therefore important that the UK should not move a Resolution approving the attack.  The opportunity to use the Russian veto is a power that should not be put into Putin’s hands. Nor is this a time to trot out the over-vaunted “Responsibility to Protect” doctrine, which (in its watered-down UN formulation) still depends on Security Council approval. The coalition action is lawful because it is a case of stopping international criminals from continuing to perpetrate international crimes.

In 2001 the UK made its position clear by passing a law that enabled war crimes, crimes against humanity and genocide, committed in any foreign country, to be prosecuted and punished here.  It is under this law that returning Jihadis should be apprehended and tried.  It is in the spirit of that law, together with our Convention duties, that the UK should support action to stop crimes against humanity in Iraq and Syria.

Bombing is not, of course, enough. There will have to be concurrent actions to cut off the flow of Isis funding. Some boots may be needed on the ground. De-radicalisation programmes must be supported, and it is necessary to plan for the long-term. But in the meantime, only military action can save those communities that are in immediate danger from being destroyed by terrorists who hate them for their race or religion.

Geoffrey Robertson QC is a former UN Appeal Judge. His book, “An Inconvenient Genocide: Who Now Remembers The Armenians?” is published by Biteback this month.

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