The government’s legal case for bombing Syria has been transformed by the terror attacks in Paris and the resulting UN security council motion on 20 November, which urged states to “take all necessary measures” against Islamic State.
Though some lawyers question whether the resolution is sufficient to justify use of force, David Cameron included the entire text of the UN document in his manifesto for military action in Syria.
A range of legal arguments, mainly relying on the principle of legitimate self-defence, are deployed by the prime minister to demonstrate that airstrikes are permitted under international law.
The UK has already been involved in action over Syria – providing reconnaissance support for French attacks on Raqqa and carrying out targeted drone killings of UK citizens alleged to have been coordinating terrorist attacks on London.
Article 51 of the UN charter permits countries to use military force in pursuit of individual or collective self-defence, but the threat to national security has to be imminent.
The prime minister’s document also relies on a further justification, namely that 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.
“The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today,” Cameron’s document explains.
“The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the coalition’s efforts against Isil in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.”
Sceptics of military action point out that the UN security council motion was not adopted under chapter VII of the UN charter, which provides the framework within which the security council may authorise the use of force.
Aldo Zammit Borda, senior lecturer in law at Anglia Ruskin University, said: “Rather than providing an independent legal basis for the use of force in Syria, this resolution provides a political legitimisation of measures taken against Isil in compliance with existing international law.
“While the use of humanitarian intervention may appear amply justified in this case, in view of the atrocities committed by Isil, MPs should be mindful of the dangerous precedent they would be setting if they decide to go down this road.”
Philippe Sands QC, professor of international law at University College, London, said: “Mr Cameron’s memorandum skirts around the legal issues, in the absence of any explicit UN security council authorisation, and it avoids dealing with key issues of policy on which legality turns: the relationship with Russia, how to prioritise action against Isis, surely the principle objective, how to get boots on the ground (and whose), how to avoid diluting our efforts in Iraq, what to do if air strikes alone are insufficient. The document reflects aspiration rather than strategy in any meaningful sense.”
Human rights groups have been pressing the government for the release of advice from the attorney general, Jeremy Wright QC, on the legality of military action in Syria. The government, however, has refused to provide the information to Rights Watch UK, which is pursuing an appeal through an information tribunal hearing.
A coalition of human rights groups wrote to David Cameron on Thursday deploring the recent removal from the official ministerial code of the previous explicit duty “to comply with the law including international law and treaty obligations”.
The letter, signed by the directors of Rights Watch UK, Liberty, Justice, the Howard League, the Children’s Rights Alliance and the British Insitute for Human Rights (pdf), calls on the prime minister to reinstate that obligation.
It says: “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.”
