The Legality of Military Intervention in Syria

It is not about taking sides in the Syrian conflict, not about invading, not about regime change or working closely with the opposition, but it is about the large scale use of chemical weapons and our response to war crime, nothing else, said the Prime Minister David Cameron in a debate held in the parliament regarding military intervention in Syria.

[1] The prime minister announced for military intervention in Syria following a suspected chemical weapons attack in the suburbs of the capital Damascus on 21st of August 2013, where an enormous number of people have died. Even though US and UK holds Assad government responsible, the rebels were blamed, denying the accusation.

[2] Syria is a member of the 1925 Geneva Gas protocol, which restricts the use in war of asphyxiating toxic gases and liquids, materials or devices.

[3] Under international humanitarian law, using chemical weapons are prohibited not only in international armed conflicts but also in civil wars like the current crisis in Syria.

[4] This is established in the Tadic case[5][6], where the ICTY declared the prohibition of chemical weapons in internal warfare.

[7] Under the 2001 report of ICISS, the doctrine of Responsibility to Protect (R2P) establishes that it is suitable for military intervention when its main motive is to stop human suffering and if believed that lesser non-military measures would not have succeeded.

[8] Following the large scale loss of lives, property and effects of the chemical attack; as the UN secretary general Ban Ki-Moon said, most significant confirmed use of chemical weapons against civilians since Saddam Hussein used them in Halabja in 1988[9], the prime minister decided on military intervention. The UK has a partially written, uncodified constitution built on common law, case law, historical documents, Acts of parliament and European legislation. Its quality of being flexible makes it simply amendable by passing an Act of parliament and no special procedure being followed, adapting to new circumstances easily.[10] It is also of a monarchial background where the queen is the head of the state and reigns according to the constitution.

These are known as the powers of royal prerogative. However, the political powers that have been consumed by her, is now diminishing as it is her majesty’s government which makes decisions and execute real executive power on behalf of her.[11] The judiciary, legislature, and the executive acts as a watchdog over the operations of each other. The judiciary controls the exercise of power by the state through the procedure of judicial review. The Human Rights Act 1998 notably increased the power of the judiciary to control the functioning of the parliament and the executive, sustaining Montesquieu’s classical exposure to the concept of separation of powers. The case of A and X and others v Secretary of State for the Home Department (2004)[12] illustrates the pressure between the roles of the judiciary, parliament and the executive.[13] The role of the executive is to implement policies and enact laws.

Parliament is the most supreme legislative authority which makes new laws, termed as legislature.[14] Under a written constitution, the constitution is considered to be supreme as interpreted by the Supreme Court. However under the constitution of UK; being unwritten, the highest form of law is considered to be Acts passed by the parliament.

According to Dicey’s view, all law-making powers are derived, not from a constitutional document, but from the sovereignty of the legislature, which is the parliament. He further stated that no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliament. The validity of an Act of parliament can never be questioned, and in the case of Pickin v British Railways Board (1974)[15], Lord Reid said that, even though in the past, many lawyers seemed to believe that an Act of parliament could be disregarded, since the supremacy of the parliament was finally demonstrated by the revolution of 1688, any such idea has become obsolete. The doctrine of implied repeal states that a parliament may legislate on any matter, that no parliament may be bound by a previous or a further parliament and that the validity of an Act of parliament cannot be challenged as established in cases, Vauxhall Estates Ltd v Liverpool Cooperation (1932)[16] and Ellen Street Estates Ltd v Minister of Health (1934)[17], Blackburn v Attorney General [1971][18].[19] A recent discussion was raised about this viewpoint in the UK Supreme Court Blog and it said that, under no circumstances can the UK Supreme Court strike down legislation put forward by the UK parliament.[20] With the effect of parliamentary sovereignty, following the decision of military intervention in Syria, the prime minister who is a member of the executive, put it to a vote in the parliament. The UK is a rainbow nation with a variety of cultures and ethnic groups making up its population and the parliament is the representative of all these parties.

Hence David Cameron consulted the opinion of all those multiracial people including ethnic minorities regarding military action against Syria, by holding a vote in the parliament in a participatory approach democratically. However, the results showed that British parliament ministers dismissed UK’s involvement in US- led military action against Syria. The prime minister David Cameron’s decision regarding military intervention was rejected by 285 272 votes compelling UK to keep itself away from any joint military action, even though he is still in favour of it.[21] The labour leader Ed Miliband commented that the House of Commons had spoken for the people of Britain and that the people are deeply concerned about the chemical weapons attacks in Syria, but they want us to learn the lessons of Iraq, and that they don’t want a rush to war. They want things done in the right way, working with the international community.” [22] The prime minister responded during a debate in the parliament, I am deeply mindful of the lessons of previous conflicts and in particular, deep concerns in the country caused by what went wrong with the Iraq conflict in 2003. He further claimed that the difference with the Iraq war in 2003 was expanding that, back then Europe and NATO was split over what actions to be taken, but now they have agreed with the view that use of chemical weapons must not be allowed. Further, the Arab league had disagreed to act back then, but now they call for it, holding the Syrian government at fault and requesting the international community to act against them.[23] In a survey that was conducted regarding this matter, 60% of the British public opposed UK military action against Syria.

When the public were asked that, with UK’s involvement in conflicts such as Libya, Afghanistan and Iraq, whether they have been made more or less supportive in UK intervening in countries and conflicts abroad, majority were less supportive. Further, it was found that the suggestion made by the majority regarding what action should be taken against the Syrian regime, by both UK and the international community, was that greater diplomatic pressure be put on the Syrian regime by means of economic sanctions. This reflects people’s participation in administrative decisions taken by the executive, making them well representative of the society.[24] The Defense Secretary, Philip Hammond declared that he and the prime minister were discontented with the result claiming that it would cause damage UK’s special relationship with USA. However, Mr. Miliband responded saying that the relationship would remain strong even with the vote, and also that Britain must work in its national interest, even if it is to do with something different to America.[25] Nevertheless, the prime minister by all means has the power to declare war against Syria, by powers of royal prerogative, in the name of the queen. Back in 2003, despite failing the vote in the House of Commons, Tony Blair waged war against Iraq by using the prerogative powers on behalf of the queen.

The Green paper called governance of Britain focuses on prerogative powers exercised by ministers, mostly regarding the conduct of foreign affairs like deploying and using the Armed Forces overseas, making and ratifying treaties. The decision to use the armed forces overseas does not need any approval or confirmation by parliament and may be taken by the Government. Such decisions are usually beyond the reach of judicial review, even if the circumstance is that the deployment would be opposing international law. After the GCHQ case[26], the courts have approved over some exercises of the prerogative, though making it clear at the same time that other matters remained beyond their jurisdiction.[27] Moreover, the prime minister claimed, The well of public opinion was well and truly poisoned by the Iraq episode[28]. Labour leader Ed Miliband stated however that Britain doesn’t need reckless and impulsive leadership, it needs calm and measured leadership”.[29] Furthermore, According to R2P, the country and the international community have the responsibility to rebuild in the aftermath of destruction caused by the war, by means of providing assistance with recovery, reconstruction and reconciliation as well as lookup to address the causes of the conflict.[30] Mr. Cameron announced at the G20 summit that the UK would give aids worth additional £52m ($80m) for Syria – much of it for medical training and equipment to help victims targeted by chemical attacks.[31] This will bring the UK’s total expenditure on aid for Syria and neighboring states to £400m.[32] Nevertheless, there can be nothing worse than the loss of lives, which will be a consequence if Britain rushes into war. As a matter of fact, even if the Syrian regime uses chemical weapons against the countries that intervene in military action or not, it is anyway going to result in bloodshed, not only of their civilians but also of the armed forces of the international community. Also when the Britain’s defense budget is spent for military action, it will have a direct impact on spending for domestic services such as health, education, social security as a means of developing the country.

When such needs of people are not fulfilled, it results in the breach of right to life, right to health, right to protection, etc under UDHR. Moreover, it is necessarily the tax payers money that is spent for this, which will result in impacting inflation and subsequently the downfall of the economy of Britain. Therefore, alternative measures which would be rather peaceful should be taken in place of rushing into wars that may result in gruesome world wars. 1 | Page

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[1] Youtube, British parliament debates military action against Syria Part1, (29th August 2013), https://www.youtube.com/watch?v=SJLxBdhGBNE

[2] World Observer Online, Syria crisis: Cameron loses Commons vote on Syria action, 30/08/2013, https://worldobserveronline.com/2013/08/30/syria-crisis-cameron-loses-commons-vote-on-syria-action/

[3] Ilias Bantekas, International criminal law: War crimes and grave breaches (4th edition, Hart publishing,22 September 2010) at pg.176, In accordance with customary law, Article 8(2)(b)(xvii) prohibits the employment of poison or poisoned weapons, if the substance released from the weapon cause death or serious damage to health in the ordinary course of events, through its toxic properties.

[4] Human Rights Watch, Attacks on Ghouta: Analysis of alleged use of chemical weapons in Syria, (De Standaard, September 2013), at pg.21

[5] ICTY, The Prosecutor v. Dusko Tadic, Appeals chamber judgment (15/07/1999)

[6] Ilias Bantekas; note 3 above, at pgs.138,141

[7] Customary IHL, Rule 74. Chemical weapons, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule74

[8] Fionna Bezaire and Bhaskar S. Manda, responsibility to protect, https://r2pcoalition.org/content/view/22/93/

[9] Jared Feldschreiber, United Nations Report: Sec. Gen. Ban Ki Moon Confirms ‘Unequivocally & Objectively’ Chemical Weapons Used in Syria, https://www.lawyerherald.com/articles/4056/20130916/united-nations-report-secretary-general-ban-ki-moon-confirms-unequivocally.htm [10] Neil Parpworth, Constitutional and Administrative law: The meaning of a constitution (6th edition,Oxford University Press), at pg. 7 [11] Neil Parpworth, note 10 above, at pg 11 [12] A and X and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 [13] Catherine Elliot and Frances Quinn,  The English Legal System: The role of judges (12th edition, Pearson) at pg 148 [14] Parliament and Government, https://www.parliament.uk/about/how/role/parliament-government/ [15] Pickin v British Railway Board (1974) AC 765 [16] Vauxhall Estates Ltd v Liverpool Cooperation [1932] 1 KB 733 [17] Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 [18] Blackburn v Attorney General [1971] 1 WLR 1037; 2 All ER 1380 [19] Hilaire Barnett, Constitutional and Administrative Law: Parliamentary Sovereignty (10th edition, Routledge) at pgs 110,113,124,125,136 [20] The Guardian, Does parliamentary sovereignty still reign supreme? (Adam Wagner,27th January 2011), https://www.theguardian.com/law/2011/jan/27/supreme-court-parliamentary-sovereignty [21] BBC, US to act in its best interests over Syria crisis (30th August 2013), https://www.bbc.co.uk/news/uk-politics-23894173 [22] BBC, Syria crisis, Cameron loses Commons vote on Syria action (30th August 2013), https://www.bbc.co.uk/news/uk-politics-23892783 [23] Youtube, note 1 above, https://www.youtube.com/watch?v=SJLxBdhGBNE [24] The Guardian, Observer/ Opiniom Politics Polls (Toby Helm, 31st August 2013), https://www.theguardian.com/politics/2013/aug/31/poll-british-military-action-syria [25] World Observer Online, note 2 above, https://worldobserveronline.com/2013/08/30/syria-crisis-cameron-loses-commons-vote-on-syria-action/ [26] Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (GCHQ) [27] The Governance of Britain (Colin Warbrick, 2008), https://login.westlaw.co.uk/maf/wluk/app/document?&srguid=ia744cc630000014397915ad408901209&docguid=IFB8EF8814A4611DDBF1596BDF21EBB6A&hitguid=IFB8EF8814A4611DDBF1596BDF21EBB6A&rank=1&spos=1&epos=1&td=340&crumb-action=append&context=10&resolvein=true [28] Youtube, note 1 above, https://www.youtube.com/watch?v=SJLxBdhGBNE [29] World Observer Online, note 2 above, https://worldobserveronline.com/2013/08/30/syria-crisis-cameron-loses-commons-vote-on-syria-action/ [30] Fionna Bezaire and Bhaskar S. Manda, note 8 above, https://r2pcoalition.org/content/view/22/93/ [31] BBC, Syria crisis: where key countries stand, (17th September 2013), https://www.bbc.co.uk/news/world-middle-east-23849587 [32] BBC, Tony Blair: Iraq war made UK hesitant over Syria intervention, (6th September,2013), https://www.bbc.co.uk/news/uk-23983036

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