The UK's Legal Position on Syria.

Both houses of the UK Parliament are currently debating the use of chemical weapons in Syria with a House of Commons vote expected at around 21:00. With the motion that can be read here; http://www.itv.com/news/2013-08-28/the-full-text-of-the-governments-motion-on-syria/ now containing a guarantee that there will have to be a second vote before UK military action is taking this debate has turned into something of a damp squib.

However there is some talk that Conservative Party MP's will push for Parliament to be recalled over the weekend for that vote to take place. Bizarrely though this seems like an attempt to get this current motion passed because it features the Labour Party amendment that can be read here; http://www.itv.com/news/2013-08-28/full-text-of-labours-amendment-on-syria/ that requires that the United Nations (UN) inspectors are allowed to complete their inspection and make a report to the Security Council before a UK vote on military action can take place. The UN inspectors are likely to be in Syria until Saturday (31/8/13) so there is little chance of them completing their report by Sunday (1/9/13). Therefore passing the amended motion would head off a weekend vote although there is little guarantee that things will get that far.

Ahead of the debate though the UK's Joint Intelligence Committee (JIC) published a summary of its findings that can be read here; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235094/Jp_115_JD_PM_Syria_Reported_Chemical_Weapon_Use_with_annex.pdf However even in the heavily redacted world of espionage this so brief as to be useless. The main evidence it cites in support of its finding that the Syrian government used chemical weapons is that previous JIC reports have concluded that the Syrian government have used chemical weapons. It does though concede that it can find no political or military reason why the Syrian government would have used chemical weapons.

The UK Attorney General has also published a summary of the governments legal position regarding a chemical weapons attack by the Syrian government that can be read here; http://i2.cdn.turner.com/cnn/2013/images/08/29/chemical-weapon-use-by-syrian-regime-uk-government-legal-position.pdf Again this is very brief but from what has been written it is easy to tell that it is deeply flawed. The 2nd paragraph describes the use of chemical weapons by the "Syrian regime" as "a breach of international law prohibition on use of chemical weapons (sic)and amounts to a war crime and a crime against humanity." Peculiarly for a legal briefing though it offers no basis for the laws on which the opinion is based forcing us all to guess.

However by "Crime Against Humanity" I assume that it is referring to the 1998 Rome Statute as this is the only accepted document offering a definition of a crime against humanity. It lists Crimes Against Humanity as murder, extermination, torture, rape, political, religious and ethnic persecution none of which apply to the events in Jobar on August 21st (21/8/13). Although people were killed with only 355 dead there doesn't appear to have been any attempt at a mass extermination and the killings occurred as part of an armed confrontation between at least two armed groups. Killings that take place under those circumstances are not normally considered murder. At a massive stretch I suppose that the use of chemical weapons could be described as an "inhumane or degrading act." However crimes against humanity do not refer to "isolated or sporadic events." Lawyers can argue about the specific definitions of "isolated or sporadic" forever and a day however I think that most reasonable people would agree that a one off incident fits the definition of isolated or sporadic meaning that no crime against humanity has occurred.

The customary law on the prohibition of chemical weapons seems to refer to the 1925 Geneva Protocol on chemical weapons. Although this is not technically part of the Geneva Conventions is relies of the Geneva Conventions' definitions of "warfare" and "combatant." The Geneva Conventions are of course the documents that define "war crimes." It is here that the UK government's position runs into serious trouble because the 4th article of the 3rd Geneva Convention lays out a distinction between a lawful combatant and an unlawful combatant. Warfare as defined by the Geneva Conventions and the 1925 protocol can only be waged against lawful combatants and therefore war crimes cannot be committed against unlawful combatants. The Saudi and Qatari Irregular Army (SQIA) are quite clearly unlawful combatants meaning that no course of action including the use of chemical weapons is prohibited against them. I understand that from a humanitarian perspective this can be particularly hard to stomach but the most important part of the distinction is that a lawful combatant must obey all the other laws of war. That means they cannot massacre, hide amongst civilian populations, rape, murder, pillage or eat their dead. If we get into a position where we start defending people's right to act as unlawful combatants we are condoning war crimes and the laws of war which are hardly the membership rules of the local women institutes knitting circle fall apart creating a free for all as we are currently witnessing in Syria and have seen in places such as the former Yugoslavia and Rwanda.

The 2nd paragraph goes onto assert that the legal basis for any UK military would be humanitarian intervention. Here I am at an utter loss as to what aspect of international law this opinion is based on. However from the talk of deterring or disrupting the future use of chemical weapons this appears to be a reference to the 2005 UN doctrine of "Responsibility to Protect (R2P)." To use the correct legal parlance this is Cr*p for the simple reason that R2P is not part of international law. Instead it is a set of internal UN guidelines detailing the circumstances under which the UN Security Council (UNSC) can issue a Chapter 7 resolution authorising the use of military force. It considers the UNSC to be the sole body that can authorise the use of military force and most certainly does not permit nations to take military action without a UNSC resolution. In fact R2P was largely introduced to prevent a repeat of NATO's little adventure into Serbia in 1999. Although it has no application in these circumstances I will consider the UK's discussion of the criteria laid out in R2P but only to explain why there will be no UNSC resolution on Syria under the current circumstances;

The first requirement is that there is compelling evidence accepted by the international community (UNSC) that there is humanitarian distress on a large scale. This condition has clearly not been met. Although the JIC summary is scant on detail I gather that the UK's evidence rests of three pillars because the US the and Israel are not sharing their intercept evidence with the UK. Those pillars are video evidence, witness statements and social media reports. I am considering witness statements and social media reports to be the same thing for obvious reasons.

Although I'm not disputing the video evidence the assertion that it could not be faked is simply incorrect because there are a host of drugs that can induce seizure like symptoms and irritation to the eyes and frothing at the mouth can be induced by simple household soap. The witness statements severely lack credibility because the attack took place at around 03:00 (local). Due to the fighting in Syria there is no street lighting or electricity grid to speak of so the attack took place in pitch darkness. It also took place amid an artillery bombardment which are so traumatic and disorientating it is well documented they can drive people insane. Finally Sarin gas is both odourless and colourless so even during perfect daylight a person could no more tell you were it had come from than the air they breath daily. So will I appreciate that in these circumstances it is unreasonable to apply the same burden of proof as you would apply in a civilian criminal trial if a witness who has great incentive to lie is claiming to have seen something that it is physically impossible for them to have seen we really have to ask if they're telling the truth.

If the available evidence were to some how magically strengthen to the point it at least indicates the Syrian government rather than the SQIA were responsible the events in Jobar of August 21st (21/8/13) still represent a isolated or sporadic incident meaning that the 1998 Rome Statute covering Crimes Against Humanity and R2P cannot and do not apply.

The second requirement is that it has to be objectively clear that there is no alternative to the use of military force. This is simply not the case in Syria because alternatively the UNSC could pass a resolution prohibiting the supply of weapons and other equipment to the unlawful combatants of the SQIA or requiring that the SQIA stop hiding in civilian areas. It could also begin to supply the Syrian government with weapons and tactical advice making it better able to defeat the SQIA while minimising civilian casualties.

The third requirement is that any military force is proportional and strictly limited to relieving the humanitarian need (the use of chemical weapons). Obviously this is quite difficult to asses without it being declared exactly what military action is being considered. However even the nations that are proposing military action have made clear that they would not be able to target chemical weapon stores without spreading them across a wide area making the humanitarian need much worse. The UK's plan use Cruise missiles to knock out Syria's air defences including its air-fields is definitely out. Destroying air defences will have no impact on the Syrian governments ability to use chemical weapons and seems to be a precursor to regime change which R2P does not authorise. Similarly attacking air-fields or any other military hardware such as artillery positions seems to be a precursor to regime change and is actually likely to increase the Syrian governments need to use chemical weapons by reducing their ability to use conventional weapons.

As such the criteria of R2P have not been met so the UNSC will not be passing a Chapter 7 resolution. I strongly recommend that the UK Parliament respects the UN a votes down today's flawed and unlawful motion.

(Originally Posted) 17:45 on 29/8/13.