In the Independent, 3 September 2013
Amid all the arguments over whether and in what circumstances military action against Syria might be in accordance with international law, do not forget that there is at present no means of definitively answering the question. There should be an international court to reach a judgment on which everyone could rely.
Richard Laming
London NW2
N.B. the version of the letter sent to the Independent included, in the last sentence, the words “in a timely manner”
In some circumstances the international court of justice at The Hague (no relation) can of course pronounce on points of international law, although its judgements are binding only on those governments that have accepted its jurisdiction.
But the problem with all the various international courts created in recent years (and earlier) is surely the difficulty of enforcing their decisions. The Security Council may make binding decisions under Chapter VII of the UN Charter to enforce compliance with decisions of the international court concerned but it can only authorise member states to take enforcement action, it can’t compel them to take it, and the Council has no military resources of its own. Moreover the Council can act only if at least nine member states vote for the action proposed and even then if none of the five permanent members votes No (contrary to the strict wording of the Charter, abstentions by a P5 member are not treated as vetoes, for purely pragmatic reasons!).
Those complaining that the Security Council is being ‘paralysed’ or otherwise prevented from authorising an American strike against Syria over its government’s alleged use of chemical weapons need to remember that it’s unlikely that the necessary nione votes for granting such authority could in fact be mustered (look at the list of current members) so the question of a Russian or Chinese veto is unlikely to arise.
Moreover those arguing for the legality of some way of circumventing the Council by appealing to some hazy doctrine of a responsibility to enforce the ban on chemical weapons under international customary law, or to act to prevent another humanitarian disaster, need to ask themselves how they would feel if Russia or China were to rely on the same (non-existent) ‘doctrine’ to justify an attack on some troublesome neighbour (Georgia? Tibet? Mongolia?) in defiance of western vetoes. Would the doctrine justify a group of Arab states in attacking Israel for some flagrant breach of international law, in disregard of an American veto of a Security Council resolution authorising it?
In any case there already exists an internationally agreed norm permitting the use of force as a last resort to prevent a humanitarian disaster: namely the Responsibility to Protect (R2P) — which explicitly requires the authority of the Security Council. It’s very sad to hear Cameron and (much more thoughtfully) Obama at their press conferencesw in St Petersburg today after the G20 meeting, both claiming that military action against Syria without UN authority could be legal. It’s even sadder to see Dominic Grieve tendering such grievously (!) flawed advice to the government especially when his full reasoning is kept secret. The Charter is perfectly clear on the requirements of international law. Those who intend to act in breach of it should acknowledge that they will be committing the war crime of aggression, instead of pretending that anyone can flout the need for UN authority with impunity.