The war drums are getting louder in the aftermath of ISIS attacks in Paris, as Western countries gear up to launch further airstrikes in Syria. But obscured in the fine print of countless resolutions and media headlines is this: the West has no legal basis for military intervention. Their strikes are illegal.
“It is always preferable in these circumstances to have the full backing of the United Nations Security Council (UNSC) but I have to say what matters most of all is that any actions we would take would…be legal,” explained UK Prime Minister David Cameron to the House of Commons last Wednesday.
Legal? No, there’s not a scrap of evidence that UK airstrikes would be lawful in their current incarnation.
Then just two days later, on Friday, the UN Security Council unanimously adopted Resolution 2249, aimed at rallying the world behind the fairly obvious notion that ISIS is an “unprecedented threat to international peace and security.”
“It’s a call to action to member states that have the capacity to do so to take all necessary measures against (ISIS) and other terrorist groups,” British UN Ambassador Matthew Rycroft told reporters.
The phrase “all necessary measures” was broadly interpreted – if not explicitly sanctioning the “use of force” in Syria, then as a wink to it.
Let’s examine the pertinent language of UNSCR 2249:
The resolution “calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter…on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq.”
Note that the resolution demands “compliance with international law, in particular with the UN Charter.” This is probably the most significant explainer to the “all necessary measures” phrase. Use of force is one of the most difficult things for the UNSC to sanction – it is a last resort measure, and a rare one. The lack of Chapter 7 language in the resolution pretty much means that ‘use of force’ is not on the menu unless states have other means to wrangle “compliance with international law.”
What you need to know about international law
It is important to understand that the United Nations was set up in the aftermath of World War 2 expressly to prevent war and to regulate and inhibit the use of force in settling disputes among its member states. This is the UN’s big function – to “maintain international peace and security,” as enshrined in the UN Charter’s very first article.
There are a lot of laws that seek to govern and prevent wars, but the Western nations looking to launch airstrikes in Syria have made things easy for us – they have cited the law that they believe justifies their military intervention: specifically, Article 51 of the UN Charter. It reads, in part:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.”
So doesn’t France, for instance, enjoy the inherent right to bomb ISIS targets in Syria as an act of self-defense – in order to prevent further attacks?
And don’t members of the US-led coalition, who cite the “collective self-defense” of Iraq (the Iraqi government has formally made this request), have the right to prevent further ISIS attacks from Syrian territory into Iraqi areas?
Well, no. Article 51, as conceived in the UN Charter, refers to attacks between territorial states, not with non-state actors like ISIS or Al-Qaeda. Syria, after all, did not attack France or Iraq – or Turkey, Australia, Jordan or Saudi Arabia.
And here’s where it gets interesting.
Western leaders are employing two distinct strategies to obfuscate the lack of legal justification for intervention in Syria. The first is the use of propaganda to build narratives about Syria that support their legal argumentation. The second is a shrewd effort to cite legal “theory” as a means to ‘stretch’ existing law into a shape that supports their objectives.
If the ‘international community’ wants to return ‘peace and stability’ to the Syrian state, it seems prudent to point out that its very first course of action should be to stop breaking international law in Syria.
The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.
Sharmine Narwani is a commentator and analyst of Middle East geopolitics. She is a former senior associate at St. Antony’s College, Oxford University and has a master’s degree in International Relations from Columbia University. Sharmine has written commentary for a wide array of publications, including Al Akhbar English, the New York Times, the Guardian, Asia Times Online, Salon.com, USA Today, the Huffington Post, Al Jazeera English, BRICS Post and others. You can follow her on Twitter at @snarwani