25 Sep 2014

Iraq: why this isn’t 2003 all over again

Some legal advice to any British parliamentarians “frozen in fear” over whether the UK should join the international force taking on the self-declared caliphate: relax. Britain’s international lawyers concur that, this time round, it’s perfectly legal – as long as the use of British firepower is confined to Iraq.

“It is clear in this case,” reads the government’s legal position, published this afternoon, “that Iraq has consented to the use of military force to defend itself against [the Islamic State group] in Iraq.”

Baghdad has sent out an international SOS call; it has appealed for help. In the words of one lawyer who had been in the thick of it 11 years ago: “This isn’t 2003 all over again.” David Cameron is unlikely to face an international war crimes tribunal as a result of bombing what he called the “psychopathic” jihadis.

But the same lawyers are far from comfortable with American arguments that US intervention in Syria is legal – and, judging from Britain’s decision to stay out of Syria, it’s likely that the attorney general here has the same problem.

Damascus has not invited armed attacks on its sovereign territory. Without its consent – and in the absence of a security council resolution sanctioning military action – the Obama administration is now scrambling to find post-facto legal justification for its air strikes.

U.S. President Obama and U.S Secretary of State Kerry rub their eyes as Obama chairs the UN Security Council summit in New York

Even though the al-Assad regime appears to have given a wink and a nod to the strikes, it has repeatedly stated that such action would be deemed an act of aggression in violation of international law. As have the Russians. That Washington doesn’t recognise the legitimacy of the regime has no bearing on this. Syria is not (yet) a failed state; it is still represented at the UN.

“There’s no impediment in international law to coming to the aid of a legitimate government that has asked for assistance,” says Philippe Sands QC, author of Lawless World, which accused George W Bush and Tony Blair of criminal conspiracy in the 2003 invasion of Iraq. “Syria is more complex.”

Mark Ellis, director of the International Bar Association, agrees. “The parties have to do a much better job in setting out legal justifications. It is essential to do this so as not to be seen to be violating fundamental principles of international law. They are not going to find an automatic green light under the UN Charter to do what they are doing now.”

‘Proportionate military actions’

On Tuesday, Samantha Power, the US ambassador to the UN (pictured above, top), wrote to Ban Ki-moon (pictured above, bottom), the UN secretary general, and argued that US air strikes in Syria were justified because Damascus was “unwilling or unable to prevent the use of its territory” by the Islamic State group. “The United States,” she said, “has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing threat.”

The Obama administration’s legal team hopes to justify the use of force by sticking to the UN Charter – article 51, to be precise, which deals with the argument of self-defence.

“To use justification of self-defence, there has to be an imminent threat – and in the case of Syria, it’s a stretch,” says Philippe Sands. “Power’s letter to Ban argues that if you have gone into Iraq, you can justify going into Syria to defend Iraq. That leaves a niggling doubt, and will turn on the precise facts.”

Another senior British expert in international law says: “If the use of military force is the only way, that force has to be proportional. Bombing has to be limited to containing the direct threat.” Under that justification, the US would have to show that the threat in Syria is close to the Iraqi border and confine their strikes to those areas.

‘Self-defence’ argument

With Washington continuing to demand Russia’s withdrawal from Ukraine – on the grounds that Moscow’s meddling violates Ukrainian sovereignty – the Kremlin will have a particular interest in the legal arguments the Americans employ. “You have to be careful,” says Mark Ellis. “What’s good for one has to be good for all. That can prove very tricky.”

As though to bolster its “self-defence” argument, the US launched air strikes on Monday on what a shadowy jihadi group in Syria called Khorasan, which, we were assured, “was nearing execution phase of an attack on Europe or the homeland” – according to Lt General William Mayville, director of operations for the US Joint Chiefs of Staff.

The Khorasan group, said to have comprised hardened al-Qaeda veterans, was accused of conspiring to use bombs made of non-metallic materials, such as toothpaste tubes and clothes dipped in explosive compounds. The New York Times today says: “The group’s evolution from obscurity to infamy has been sudden,” and talks of “the paucity of public information about the Khorasan Group.”

Khorasan had nothing to do with the Islamic State group – the jihadi organisation supposedly in Obama’s crosshairs in Syria. The IS has, however, made very clear that it intends to do harm to coalition countries engaged in military action.

Just today, the Iraqi prime minister, Haider al-Abadi, said Baghdad had received “credible” intelligence that IS militants planned to attack the Paris Metro and subway systems in the US.

Complicated equation

To justify the attacks based on the self-defence argument is, in the view of Mark Ellis, “difficult but not impossible”.

He believes the American legal justification would be buttressed by its combining self-defence with the argument of humanitarian intervention. This has, in the past, been used to justify intervention in the absence of a security council resolution. It is controversial and many states reject it as an argument. It was used to sanction the use of military force by Nato in Kosovo in 1999.

Mark Ellis, who sat as a legal adviser on the Kosovo committee which debated the legal basis for intervention, said that the committee ruled in favour of intervention on the grounds that it was “necessary”.

And that, he says, is what this whole debate is about now. “Intervention to counter the Islamic State group is a moral issue. They are universally regarded with disgust and like-minded countries have to respond. It is not going to be easy to find a legal basis. But on moral grounds, Obama has to find a way to stop them.”

And for now, another moral factor in this complicated equation must be swept quietly under the carpet: the fact that a year ago, Obama was poised to bomb the Syrian dictator, who now, of course, is his enemy’s enemy.

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