9
Written evidence from Professor Sir Adam Roberts
1. I am Senior Research Fellow in International Relations at Oxford University; and Emeritus Fellow of Balliol College, Oxford. My main academic interests and publications are in the fields of international security, international organizations, and international law, including the laws of war. Although I am not by training a lawyer, my work has touched on a range of international legal issues arising from armed conflicts and military occupations, not least in the Middle East. I have previously given evidence to the House of Commons Defence Committee in 2002 (Inquiry into the New Chapter to the Strategic Defence Review) and 2013 (Inquiry into UK Armed Forces Personnel and the Legal Framework for Future Operations). This evidence is submitted at the invitation of the Committee.
2. This evidence addresses the lawfulness under international law of the ongoing UK military action against the forces of the Islamic State (henceforth IS) in Iraq, and potentially the lawfulness of such action in Syria. At the request of the Committee, it also takes into account the UN-supported principle of Responsibility to Protect (henceforth R2P). It looks briefly too at the application of the law governing the conduct of armed conflict. Finally, this evidence touches on the overall character and purpose of the coalition. The main conclusions from this evidence are:
3. As one of the former colonial powers in the region, the UK is frequently blamed for a variety of sins, including setting up separate states with borders that artificially divided the Arab peoples, failing to administer the League of Nations mandate in Iraq effectively in the 1920s, cutting and running when the going got tough in Palestine in 1948, invading Suez in 1956 in collusion with the French and Israeli governments, supporting pro-western regimes regardless of their record of oppression, occupying Iraq on the basis of poor assessment of evidence and without a serious plan for the administration of the country, being insufficiently critical of certain Israeli actions including in the 2014 Gaza War, and so on.
4. The UK record in the region is by no means all negative. It includes a long record of defence and foreign policy cooperation with states in the region; playing an important part in the UN-authorized coalition war in 1991 to expel Iraq from Kuwait; and helping to create a largely successful ‘safe haven’ in northern Iraq in 1991, enabling Kurdish refugees to return to their homes from the mountains on the Turkish border to which they had fled.
5. The result of this mixed record is that British actions in the region tend to be viewed in a sceptical or even hostile light. This is a problem for the operations against IS, and I will revert to this issue when I discuss the question of what the coalition is trying to achieve in the region.
6. A related concern about the UK approach is the dogma that was fatefully accepted as general truth by the UK government in 2002: ‘Experience shows that it is better where possible to engage an enemy at longer range, before they get the opportunity to mount an assault on the UK.’[1] In evidence to this Committee in October 2002 I set out reasons why the history of counter-terrorist operations suggested no such clear conclusion.
7. Under the international law of the UN era, the use of force in international relations is prohibited, subject to certain limited exceptions.
8. There has been no explicit UN Security Council (UNSC) authorization of force against IS and related bodies. However, UNSC Resolution 2170 of 15 August 2014, which dealt with both Iraq and Syria, condemned the activities of the Islamic State in Iraq and the Levant (ISIL) and the Al Nusrah Front (ANF) and called for action against them. Invoking Chapter VII of the UN Charter, in paragraph 6 it:
Reiterates its call upon all States to take all measures as may be necessary and appropriate and in accordance with their obligations under international law to counter incitement of terrorist acts motivated by extremism and intolerance perpetrated by individuals or entities associated with ISIL, ANF and Al-Qaida and to prevent the subversion of educational, cultural, and religious institutions by terrorists and their supporters.
9. Important as UNSC Resolution 2170 is, the absence of an explicit authorization of force throws the spotlight on the other bases on which the use of force can be justified. Under international law, the other conditions that have to be satisfied if a use of force is to be considered justifiable include an exercise of ‘the inherent right of individual or collective self-defence’ as recognized in Article 51 of the UN Charter. In addition, there are some other circumstances that can provide a justification for uses of force. One such circumstance, quite widely accepted in particular cases but is still a matter of contestation as a general principle, is extreme humanitarian emergency.
10. The right to use force in self-defence is not confined to circumstances in which one state attacks another. There is a long-recognized right of states to use force against rebels – e.g. in a civil war – and also against certain non-state entities, such as pirates; and, subject to a qualification mentioned below, states have a recognized right to seek external assistance in using force in such ways.
11. It is important to establish that any UK military involvement in Iraq and Syria be justifiable in international law. Failure to address this matter satisfactorily could have a negative effect on potential coalition partners, on public opinion in the UK and internationally, and indeed on the safety of members of UK armed forces. It could also provide a propaganda gift to adversaries. The last thing the UK should be doing is giving the impression that it can ride roughshod over the principle of state sovereignty without careful consideration of the circumstances and of the reasons for taking action.
12. There is a minority, but still worrying, view that international law simply does not matter. For example, in an article in The Spectator, Douglas Murray has suggested that air strikes against Syria might not be legal, but we should not let that discourage us. He also asserted that the campaign to save the Kosovar Muslims had been ‘“illegal” under international law’, but ‘was still the right thing to do.’[2] Murray’s article is based on an unjustifiable simplification of history. In fact, despite the absence of a UN Security Council Resolution specifically authorizing the use of force, serious legal arguments were advanced for NATO’s use of force in the Kosovo war of 1999, based mainly on overwhelming humanitarian necessity and the threat to international peace and security.[3]
13. Despite the lack of specific UN Security Council authorization, there is a strong legal case for the use of force against IS in Iraq. This case is based on the existing law regarding the justifiability of resort to force (jus ad bellum), as set out in the UN Charter and in the customary and accepted practices of states. The twin basis for any use of force specifically in Iraq could be the Iraqi government’s right to use force against rebels, and its right of self-defence against foreign incursion. In the event it has been the second argument that has predominated. In a letter to the UN Secretary-General on 25 June 2014, the Iraqi foreign minister, on the grounds that there had been attacks on Iraq by the IS, requested ‘urgent assistance from the international community’.[4] And in a further such letter on 20 September 2014 his successor stated:
On 15 September 2014, at the Paris conference, the international community attested to the fact that ISIL represents a threat to Iraq. We welcome the commitment that was made by 26 States to provide the new Iraqi Government with all necessary support in its war against ISIL, including appropriate military assistance through the provision of air cover in coordination with the Iraqi armed forces and in accordance with international law, without endangering the safety of civilians, ensuring that populated areas are not struck and respecting Iraq’s sovereignty.[5]
14. There are certain possible legal counter-arguments. Two are mentioned here:
(a) The first might rely on a general claim that arming rebels and governments in civil wars is a breach of the principle of non-intervention.[6] However, this claim has not been advanced in the debates over Iraq and Syria, partly because it is obvious that what is happening in Iraq is not just a civil war.
(b) A second possible counter-argument might be that the Iraqi government has lost support among Iraq’s Sunni communities to such an extent that it is not entitled to seek to ensure its own survival by appealing for foreign military support. A similar line of argument has been used by Western countries in a number of cases, including in criticism of Russia’s support for Syria since 2011. An awareness of the Iraqi government’s mishandling of its relations with the Sunni subjects helps to explain the US concern, evident in summer 2014, to delay initiating a general campaign of military action against IS (as distinct from a limited campaign to save the Yazidis in the mountains) until a less sectarian government was installed in Baghdad, which finally happened on 14 August.
15. The notably short UK legal advice on military action in Iraq, issued on 25 September (the day before the House of Commons debate on Iraq) is exclusively confined to the matter of ISIL sites and military strongholds in Iraq.[7] In moving the resolution in the House of Commons the next day, the Prime Minister again kept the focus on ISIL, but put great emphasis not only on the legal case for supporting Iraq’s self-defence, but also on the need to ‘keep the British people safe from the threat posed by ISIL.’[8]
16. The post-2003 history of the alienation of the Sunni population of Iraq raises the question of what the legal situation would be if the UK, along with coalition partners, were asked to carry out air strikes in Iraq, not against IS forces as such, but against local Iraqi Sunni groups. A predictable official response might be that such action against rebels is permissible in international law anyway, and would be all the more justifiable to the extent that the rebels were acting in conjunction with IS. Yet this would be a very difficult question, calling attention to the chronic failures of the outside involvement in Iraq since 2003, and requiring a legal justification distinct from the IS-centred one provided so far.
17. In general, there has been remarkably little dissent from the proposition that military action against IS within Iraq in support for the Iraqi government is lawful under existing international law. Parliament appears to have accepted that claim when it voted 524–43 on 26 September 2014 to support UK participation in military action against ISIS in Iraq.
18. The lawfulness of any use of force against IS in Syria is the subject of more contention. In the debate in the House of Commons on 26 September the government asserted that such measures would be lawful. However, certain questions about its lawfulness have been raised in parliament, and also by some academic lawyers – for example by Philippe Sands QC;[9] and by Louise Arimatsu and Michael Schmitt.[10] Grounds for concern have included:
19. Because of these concerns, some have proposed that it would be better to seek a UN Security Council resolution authorizing military action in Syria.[11] The attempt might be worth making, but the chances of success are very low. Two of the permanent members of the Security Council, Russia and China, would be likely to veto such a resolution.
20. The debate at the intergovernmental level has taken little account of the three concerns listed above. It been cast in much simpler terms, as fundamentally a question of Iraqi self-defence. In his letter to the UN Secretary-General on 20 September 2014 the Iraq foreign minister referred to the Syrian aspect of Iraq’s security problem:
As we noted in our earlier letter, ISIL has established a safe haven outside Iraq’s borders that is a direct threat to the security of our people and territory. By establishing this safe haven, ISIL has secured for itself the ability to train for, plan, finance and carry out terrorist operations across our borders. The presence of this safe haven has made our borders impossible to defend and exposed our citizens to the threat of terrorist attacks.
21. Similarly, the US ambassador to the UN wrote as follows to the UN Secretary-General in September 2014:
Iraq has made clear that it is facing a serious threat of continuing attacks from the Islamic State in Iraq and the Levant (ISIL) coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq, to protect Iraqi citizens, and ultimately to enable and arm Iraqi forces to perform their task of regaining control of the Iraqi borders.
ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders. In addition, the United States has initiated military actions in Syria against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies. [12]
22. This statement appears to be based on a reasonable assumption that the self-defence of Iraq and states in coalition with it is an adequate justification for the action being taken in Syria, and that, in this particular case, any humanitarian justification for the use of force relates to parts of the action, but not to its totality.
23. The US military action in Iraq in 2014 began because of an urgent humanitarian issue, when the Yazidis were targeted by IS as part of its campaign against non-Islamic influences. President Obama, in a televised address on 7 August 2014, said that the US ‘cannot turn a blind eye’ when it has the capability to prevent genocide, and that he had authorized the US military to conduct air strikes. Despite this the US, as noted above, did not subsequently put prime emphasis on humanitarian considerations as the basis for its military actions in Iraq and Syria.
24. One can surmise that there are solid reasons why the US and the UK have chosen not to rely primarily on any general doctrines of R2P or humanitarian intervention to justify their overall use of force in Iraq and (in the US case) Syria. These reasons include the following three:
(a) Self-defence, which is plainly involved in this case, is a stronger legal ground.
(b) The doctrine of R2P, as enunciated in the 2005 UN World Summit Outcome Document, assumes that any military action is under the auspices of the UN Security Council – not likely to be obtained in this case.[13] There is room for doubt about the extent to which R2P can be seen as a formal legal doctrine of such standing that it can, in the absence of a Security Council resolution, be an independent basis for military action.
(c) Any general doctrine of humanitarian intervention that risks obliging states to take military action in foreign countries in a wide variety of situations is bound to be viewed with a degree of scepticism by some states. The US has a history of being sceptical because it would be expected to do much of the intervening. Such a doctrine cannot be a substitute for prudent policy-making taking into account all aspects of a given situation. In Syria, to act on the basis of R2P would be especially problematic, as it would immediately provoke the question: why are you acting against IS but not protecting the other oppressed peoples in Syria?
25. What could make some form of humanitarian intervention legally justifiable in a particular case, in the absence of a UNSC authorization? First, evidence of urgent humanitarian necessity, as with the Yazidis in Iraq. Second, evidence that an intervention has approval and participation of a number of national governments and regional organizations. Third, there must be a serious plan for improving the situation of those under threat. In some cases one could add the existence of a major threat to international peace and security as part of the justification for intervention on humanitarian grounds.
26. In any military action, there is a need to ensure observance of the law of armed conflict (jus in bello, or international humanitarian law). This has been recognized in a number of official statements. The defence minister, Michael Fallon MP, said on 26 September, after the House of Commons vote: ‘You will not see an immediate series of particular hits. This is going to be a long campaign of weeks and probably months to drive out IS. We will be very careful to avoid civilian casualties. Each of these missions will have to be personally authorized by me and there are clear rules of engagement.’[14]
27. There are reasons for observance of the law of armed conflict even against an adversary neglecting or abusing these norms. A coalition needs to act on the basis of agreed principles. A campaign such as the one undertaken involves some particular risks of violations of the law of armed conflict.
(a) Military operations with an anti-terrorist purpose frequently result in legal violations, because identifying legitimate targets in real time is inherently difficult, and the adversary is often hard to distinguish from the general population.
(b) In such conflicts, treatment of detainees is a crucially important matter, on which there were serious and deeply damaging infractions by US and UK forces in Iraq following the 2003 invasion. In this case, with no US or UK combat operations on the ground, the coalition partners will be largely dependent on Iraqi detention facilities and Iraqi compliance with international norms. They will need to put serious efforts into ensuring such compliance.
(c) Damage to, and looting of, cultural property is a risk in this conflict, and one likely to cause repercussions. In this connection, and in light of terrible experience of the looting of museums and archaeological sites in Iraq in 2003, it is embarrassing that the UK has still not ratified the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict. In 2008 a draft Cultural Property Protection (Armed Conflict) Bill passed through parliamentary scrutiny with only minor revisions suggested. Ratification has both all-party and interdepartmental support, and ministers of successive governments have pledged their commitment to ratification as soon as parliamentary time can be found.
(d) Ultimately, it is possible that some coalition forces may find themselves in control of certain areas of Syria, for example if IS rule collapses in a part of the country, or a safety zone of some kind is established to enable refugees to return. In such a case there will be a need for clear thought about administrative responsibility for the area, including the application of international rules applicable in military occupations.
28. In the House of Commons on 26 September, the Prime Minister rightly asked the question: ‘And above all, do we have a clear idea of what a successful outcome will look like, and are we convinced that our strategy can take us there?’[15] This is the most important and difficult question that must be faced. It is a key part of the overall issue of the justifiability of the use of force. It involves something more than legal claims based on self-defence or humanitarian emergency: it is about the wisdom or otherwise of using force in the particular circumstances that are faced, and the best means of doing so. It raises key issues that relate to the composition of the coalition, about its military methods, and about whether there is a clear concept of what it is aiming to achieve. Notes on each of these three considerations follow.
29. The coalition’s composition. It would be disastrous if any coalition action in Iraq or Syria came to be perceived as simply another chapter is what is presented as the long story of the West v. Islam. The US and UK were right during the summer to see this problem and to work on building up a coalition before the US commenced military action in August 2014. As for the UK, in light of our history in the region, there will be no shortage of poisonous interpretations of our role. We may be seen as latter-day crusaders; as oily ex-colonialists; as members of an anti-Sunni front; or all of these things at the same time. For the UK as well as the US, having an effective role depends on the existence of a convincing coalition with active local partners. So far, the participation of regional states in military operations in Iraq and Syria has been limited. More participation is obviously desired by the coalition leaders. While it is illusory to hope that all Arab states will see threats in exactly the same way as the UK does, it is particularly urgent to maintain as close contact as possible with the Arab League; and with Turkey, which has deep knowledge of the region and faces some understandable difficulties regarding its role in this conflict.
30. Military methods. There is a long history of anti-terrorist campaigns being undermined by their choice of military methods. The perception of external incursion as military occupation is the basis of much propaganda by terrorist movements, and has even contributed to their formation and to their choice of extreme methods.[16] That other form of military action undertaken by the UK and many other coalition powers – the use of air power – is both limited and controversial. It poses problems at least as great as boots on the ground. Will the present campaign be any more successful than the pioneering British uses of air power in the doomed attempts to control Iraq in the 1920s?[17] It is true that bombing from the air has changed out of all recognition in the past half century, but it is still very limited in what it can achieve against a terrorist movement, even when the latter is holding territory and constitutes a state of sorts. What has been achieved by coalition military actions since August is a slowing of the IS military momentum, and the saving of certain threatened people, including the Yazidis. However, it is likely to be perceived more as threat than rescue; it is likely to arouse nationalistic responses; and it may also be helping Assad to concentrate his military effort against the Free Syrian Army. As is widely agreed, air power will have only a limited role in the overall coalition campaign against IS: military action can only be one part of a multi-faceted campaign that also includes economic measures and use of the media.
31. Aims of military action. In the House of Commons the Prime Minister said: ‘We want to see ISIL degraded and then destroyed as a serious terrorist force. But let me be frank: we should not expect this to happen quickly. The hallmarks of this campaign will be patience and persistence, not shock and awe.’[18] I agree with the emphasis on the long haul, especially in view of the long history of caliphates and the advocacy of them. The ideas and modus operandi behind IS need to be understood and challenged. At the same time, there is a need for more exploration of the ways in which terrorist campaigns actually end. In this case, a question that merits consideration is the likely trajectory of IS. Its universal claims – comparable to the claims for a world-wide communist state that were made after the 1917 Bolshevik Revolution, and for a world-wide Islamic revolution made after the 1979 revolution in Teheran – have the capacity to antagonise all states and populations in the region, Sunni as well as Shi’a. Its need for allies may force IS to make compromises. Its intolerant ideology and authoritarian system of leadership may result in internal schism. It is therefore possible that IS may ultimately implode, or explode. Is the coalition ready for such eventualities, and the administrative responsibilities that may follow? The UK, while pursuing its policies and taking part in the coalition, needs to be explicit that the aim is containment with a view to hastening the movement’s eventual change or collapse.
[1] The Strategic Defence Review: A New Chapter, July 2002 (Cm. 5566), p. 9.
[2] Douglas Murray, ‘Are Syria air strikes legal? Perhaps not, but why should we care?’, The Spectator, London, 23 September 2014.
[3] Adam Roberts, ‘NATO’s “Humanitarian War” over Kosovo’, Survival, London, vol. 41, no. 3, Autumn 1999, pp. 102–23.
[4] Letter from Hoshyar Zebari, the Iraqi foreign minister, to the UN Secretary-General, 25 June 2014, UN doc. S/2014/440, p. 3.
[5] Letter from Ibrahim al-Ushayqir at-Ja’fari, the Iraqi foreign minister, to the UN Secretary-General, 20 September 2014, UN doc. S/2014/691, p. 2.
[6] Briefly mentioned in Syria and International Law: Use of Force and State Responsibility, International Law Discussion Group Summary, Chatham House, London, 30 September 2014, p. 7.
[7] Prime Minister’s Office, 10 Downing Street, Summary of the government legal position on military action in Iraq against ISIL, 25 September 2014, https://www.gov.uk/government/publications/military-action-in-iraq-against-isil-government-legal-position/summary-of-the-government-legal-position-on-military-action-in-iraq-against-isil
[8] Commons Debates, 26 September 2014, cols. 1255 & 1263.
[9] As cited in Mark Leftly and Chris Stevenson, ‘Islamic State: Legal justification for air strikes not even “wafer thin” says expert’, The Independent, London, 14 September 2014.
[10] Louise Arimatsu and Michael Schmitt, ‘The legal basis for the war against Isis remains contentious’, The Guardian website, 6 October 2014, http://www.theguardian.com/commentisfree/2014/oct/06/legal-basis-war-isis-syria-islamic-state
[11] Ed Miliband MP, Commons Debates, 26 September 2014, col. 1270.
[12] Letter from Samantha J. Power, US ambassador to the UN Secretary-General, 23 September 2014, UN doc. S/2014/695.
[13] General Assembly resolution 60/1 of 16 September 2005, paragraph 139, spelt out the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, and indicated that any external action to this end should be ‘through the Security Council’.
[14] Michael Fallon, interview on BBC News, 26 September 2014.
[15] Commons Debates, 26 September 2014, col. 1256.
[16] The close link between foreign military occupations and the rise of suicide terrorism is highlighted by a leading US academic specialist on terrorism, Robert Pape, in Dying to Win: The Strategic Logic of Suicide Terrorism, Random House, New York, 2005.
[17] For a critical view of the British system of imposing colonial rule from the air in Iraq in the 1920s, see Priya Satia, ‘Air Control in Iraq and the British Idea of Arabia’, in Wm. Roger Louis (ed.), Penultimate Adventures with Britannia: Personalities, Politics and Culture in Britain, I.B. Tauris, London, 2008, pp. 77–92.
[18] Commons Debates, 26 September 2014, col. 1264.