Written evidence from the Human Security Centre

Evidence by:

Julie Lenarz: Executive Director             

Daniel Wand: Director

Dr Rowan Allport: Senior Fellow

Simon Schofield: Senior Fellow

Michelle McKenna: Junior Fellow

Rebecka Buchanan: Research Assistant

The Human Security Centre

1. The Human Security Centre (HSC) is an international, independent, not-for-profit foreign policy think-tank based in London, United Kingdom.

2. The purpose of the HSC is to address, and to formulate solutions to, current and emerging threats to human security. The HSC aims to promote and help create an international society in which individuals and communities everywhere are able to live free from fear, free from want and free from indignity.

3. To achieve this, the HSC promotes the concept of human security as a tool to facilitate better understanding of the complexity and interrelatedness of threats and as a central pillar of foreign policy in the twenty-first century. Building on the human security discourse, it advances people-centred, multi-sectoral, comprehensive, context-specific and prevention-oriented solutions, working across many sectors to integrate the agendas of peace and security, development and human rights.

Foreword

4. Formed in 2006 as an umbrella organisation of al-Qaeda, the Islamic State of Iraq and Syria (ISIS), now self-styled as simply ‘The Islamic State’, poses one of the greatest modern threats to international security. Believed to have over 30,000 fighters across Iraq and Syria[1],  not to mention gaining support outside the Middle East, it has become famous for its brutal tactics, including the beheadings of Western journalists, and, as well as killing thousands, has driven millions from their homes in Iraq, Iraqi Kurdistan and Syria.

5. For a little over three months, the US-led coalition has been conducting airstrikes against ISIS. With the support of local forces, significant victories have been scored against the jihadists, inter alia, the end of the siege on the Yazidis of Mount Sinjar, the ISIS retreat from Mosul Dam and the prevention of massacres in the cities of Amerli and Kobane. However, the physical reality of current UK strategy is one of containment rather than elimination.

5. With regards to the ultimate aim of British involvement, the Prime Minister David Cameron told the House of Commons immediately prior to the vote on taking military action in Iraq that, “we want to see ISIS degraded and then destroyed as a serious terrorist force”.[2]  Airstrikes alone are insufficient to defeat the group and, over time, ISIS will likely develop asymmetric schemes to strike back - potentially against the UK itself. Our efforts to empower local forces on the ground facing ISIS have so far been derisory compared to the capabilities the UK could potentially offer. As such, this inquiry is very timely and provides an opportunity to help shape a new way forward where Britain’s actions are more in keeping with its stated policy.

6. It is the strong belief of the HSC that the crises in Syria and Iraq must be seen as one war and we recommend that the British Government expands its military campaign into Syria. ISIS does not respect the concept of nation states. The caliphate has no borders and they will advance as far as we allow them to. The next targets are likely to be Turkey, Lebanon and Jordan. Consequently, our strategy against ISIS must be driven to a large degree by our regional strategy. We cannot address Iraq’s problems adequately without finding a long-term solution to the Syrian civil war.

7. It is the view of the HSC that the elimination of ISIS is tied to the downfall of the Government in Damascus. President Assad, responsible for hundreds of thousands of deaths, has lost all legitimacy and must be removed from power. Any strategy that foresees the cooperation with the Syrian Government in the fight against ISIS, in part or in whole, must be dismissed as morally reprehensible and self-defeating. The civil war has been the primary catalyst for the surge of extremist groups, and to give legitimacy to the Government in Damascus would mean to support the very same actor that has helped give rise to ISIS in the first place.

8. The HSC also notes that airstrikes alone seldom result in a comprehensive victory. The US-led coalition’s campaign has arrested ISIS’ advance, but the war will ultimately be won on the ground. The Iraqi army has proven unable to stop ISIS; the Assad regime has proven unwilling; and the Kurds have been proven willing and able but have not been given adequate assistance. With few exceptions, the jihadists still hold the same territory as they did before the start of airstrikes. Recent weeks have seen a considerable escalation of US involvement on the ground in mentoring Iraqi forces, but the UK has so far failed to make more than a token effort in this direction. We understand and acknowledge the lack of public support and political capital for another military escalation in the Middle East, but nonetheless recommend that the UK gives serious consideration to increasing its level of military involvement - including the potential use of ground troops in a support and/or stabilising role.

9. The HSC’s evidence breaks into three parts:

1. British priorities
2. Policy Implementations
3. Legal basis

Part One: British Priorities

10. In order for an appropriate strategy for tackling ISIS to be formulated, it is also necessary to establish exactly what the priorities of the British Government are or should be.

11. To this end, the HSC has put together the following list of British objectives to ensure that the ISIS threat is properly addressed:

1. UK Homeland Defence
2. Containment ISIS’s activities to Iraq and Syria
3. Protection of vulnerable minority groups in Iraq and Syria from ISIS predation
4. Roll-back of ISIS in both Iraq and Syria
5. Regime Change in Syria

UK Homeland Defence

12. The defence of British citizens from death, degradation, torture, persecution and other treatment likely to cause suffering is the British Government’s prime responsibility. If a Government can deliver nothing else for those it governs, it should exist to deliver them from harm imposed on them, both internally by criminal elements and externally by aggressive armed states and non-state groups.

13. Fortunately, the UK is not in a position (unlike Lebanon, Jordan, Turkey and possibly Egypt and Israel) where it could well find its own sovereign borders the subject of ISIS incursions and its territory is not at risk of being wrenched away by ISIS conventional forces added to the Caliphate.

14. Nevertheless, there are two key strands of the ‘homeland defence’ objective which are important. These are the defence of British citizens from ISIS terrorist attacks; and the prevention of British citizens going abroad to join ISIS and fight in its ranks, who pose a risk to British homeland security should they ever choose to return home with their extremist ideology and proclivity for extreme violence.

Containment of ISIS in Iraq and Syria

15. ISIS has made rapid progress in Iraq since the fall of Mosul, particularly in Anbar province. Whilst not legitimately recognised as a State, its de facto boundaries reach almost to Aleppo in Western Syria to Jalula in Eastern Iraq; its northernmost areas of control are in Manbij, with a presence as far North as Kobane on the Turkish border, and ISIS controls as far south as Fallujah and Rutba (Iraq).

16. ISIS has built up significant momentum with its territorial gains, which must be halted, as there is a significant risk to regional stability, as well as national stability in Iraq and Syria, should ISIS be able to threaten the security of any of Iraq or Syria’s neighbours.

17. Lebanon is particularly at risk from ISIS at the moment. On Wednesday 12th November, there was a suicide bombing in a hotel in Beirut, for which ISIS has claimed responsibility[3]. ISIS released a statement taking responsibility for the bombing and referred to Hezbollah (Arabic for the Party of God) as ‘the Party of Satan’, claiming this was ‘just the beginning’ and referring to Shia Muslims by the offensive slur ‘Rafida’ – Arabic for ‘those who reject/refuse’. Lebanon has also faced border raids launched by ISIS elements based in Syria.[4] Lebanon’s governance structures are already strained by the massive influx of refugees from Syria as a result of the civil war – over one million refugees have fled to Lebanon. Lebanon now has the highest number of refugees per capita of any country in the world – with almost a quarter of its population now composed of Syrian refugees. Stability has been incredibly difficult to maintain in Lebanon, with ethnic and sectarian issues and a host of political complexities, with scant resources. With ISIS and al Qaeda attacks as well, the country may be on the verge of collapse.

18. Jordan is also a potential ISIS target. In June, a video came to light where Jordanian citizens loyal to ISIS tore up their passports on camera, denounced King Abdullah as a ‘tyrant’ and threatened to ‘slaughter’ him[5]. Jordanian Special Forces attacked ISIS forward bases in Iraq in June[6], preventing a Mosul-style attack inside Jordan for the time being. However, it has recently been flagged that pro-ISIS sympathies appear to be simmering in Jordan, particularly in the southern city of Ma’an[7].  The risk is that if ISIS can get enough support along border areas of Jordan they could well either rush a city or use it as a backdoor through which to stage attacks deeper into Jordanian territory. As another country which has suffered as a result of great refugee influxes from Syria (over 600,000 refugees in Jordan), Jordan is also potentially vulnerable should ISIS be able to muster a significant offensive. Resources, particularly water, are becoming scarce in the country[8]; perhaps not coincidentally, water is particularly short in Ma’an[9].

Protection of minorities

19. This priority is somewhat self-explanatory. Under the Responsibility to Protect, the United Kingdom, as a leading member in the international community, has a specific duty to prevent genocide and mass atrocity crimes committed against minorities in Iraq and Syria. There is a moral obligation to protect those innocent civilians who cannot protect themselves, and whose Governments are either unwilling (Syria) or unable (Iraq) to defend them.

20. Groups particularly at risk are Shia Muslims, Yazidis, Kurds and Christians.

Roll-back of ISIS in Iraq and Syria

21. This is the quintessential ‘beat ISIS’ component of the identified objectives. Once they are contained, ISIS should be squeezed territorially by forcing it out of population centres and economically by dispossessing them of assets such as oil fields and refining facilities in both Iraq and Syria. This will put constraints on their labour force, their potential conscription base, their supply of hostages and victims, their resources (particularly oil revenue) and reduce their influence.

22. As well as literal territorial rollback, ISIS also needs to have its capabilities degraded, its resources and advantages denied and its systems (information, network, communication etc.) disrupted in order that they might ultimately be destroyed. This includes degrading their military equipment by dispossessing or destroying weapons caches, heavy weapons systems and any improvised WMD they might possess.

23. Additionally, ISIS should be tackled on the personnel level with an intensive targeted killing campaign against ‘functional nodes’ in the ISIS network which are difficult to replace – ideologues, financiers, snipers, leaders, bomb-makers, intelligence operatives etc. Whilst there are a number of these, there are far fewer of these than there are footsoldiers, suicide bombers, prison guards and executioners. As demonstrated by successive Israeli targeted killing campaigns and the drone strike policy directed against al Qaeda in Waziristan, Pakistan, where targeted killing campaigns are carried out effectively, with minimal collateral, such campaigns can have significant impact on a group’s operational capabilities.

24. The rolling back of ISIS will also require action outside of Iraq and Syria. Recent analysis has demonstrated that ISIS is the wealthiest terrorist group in the world.[10] Although this income is in large part derived from the oil assets we have already highlighted that it possesses in Syria and Iraq, together with money generated from various criminal enterprises, ISIS also receives funding from a number of wealthy individuals living in the Gulf States.[11] As ISIS is deprived of domestic economic assets via air strikes and territorial losses, such external financial support will increase in importance. As a result, a concerted effort should be made to interdict such funding.

Regime Change in Syria

25. President Assad is responsible for the rise of ISIS to a significant extent, having emptied his prisons of violent jihadists who swelled their ranks[12], signed secret oil deals to fund them[13] and agreed non-aggression deals with them. Having done this and intentionally created an environment in which the kind of inclusive and stable Government required to defeat ISIS is impossible, it can only be concluded that Syria cannot be restored to peace without removing the Assad regime from office, one way or another.

26. Assad has used ISIS as a strategic pawn to help him win his war on those Syrians who dared to ask for democracy. Assad’s strategy has been two-fold: to create another belligerent in the conflict, who would also fight against the Free Syria Army (FSA) and other rebels, and also to create a bogeyman against which to contrast himself, allowing him to be portrayed as a stoic hero, taking on the evil jihadist terrorists. When seen in this light, one can see that ISIS and Assad are mutually reinforcing evils, and that to truly remove one, it is necessary to tackle the other.

27. Assad is a strong ally to Iran, whose destabilisation efforts in the region, including efforts to corrupt the Iraqi Government[14] and the ongoing nuclear standoff, both of which already threaten the stability of the fragile Middle Eastern political environment. Syria acts as an Iranian staging ground, where Hezbollah and Quds Force agents sow discord and violence with impunity, and from here Iran reaches its tendrils into Lebanon and Iraq and beyond. We already know that at least two Iraqi Government officials are on the Quds Force payroll[15].

28. With such a Government in Damascus, stability will not be able to return. Even the Alawite minority, to which Assad himself belongs, is beginning to grow critical of the regime[16]. A Government which intentionally abrogates its Responsibility to Protect its citizens to the degree that it is responsible for hundreds of thousands of deaths of Syrians, Palestinians, Jordanians, Iraqis, Kurds and several other groups must be held accountable. As an international community we looked on horrors like the Holocaust and the Rwandan genocide and say ‘never again’. Now is an opportunity to make ‘never again’ a reality, not just a concept.

Part Two: Policy Recommendations

28. Having presented the policy options facing the UK, we will now examine their implementation. As in the previous section, we have structured the approaches on an escalating scale of resources required and have assumed that each additional step will be in addition to, as opposed to instead of, the preceding step(s) of lower intensity.[17]

Homeland defence

29. The UK currently has a historically broadly effective multi-layered system in place for dealing with the Islamist terrorist threat. Post-Sept 11th, the UK’s counter-terrorism strategy (CONTEST) has been built upon four pillars: preventing the radicalisation of individuals; pursuing suspected terrorists; protecting likely targets; and preparing to deal with an attack.

30. It appears that the Government currently envisages that efforts to deal with the domestic threat ISIS poses will centre on a modified version of the existing approach to CONTEST. Specific alterations appear likely to include limited powers to temporarily confiscate passports, enhanced Terrorism Prevention and Investigation Measures (TPIMs), new obligations for airlines to provide passenger information and a requirement for all known or suspected jihadists returning from Syria and Iraq to undergo de-radicalisation programmes. It also appears that consideration is being given to barring the return of some UK citizens who have fought for ISIS, although the HSC cautions that this may create more problems than it would solve.

Containment of ISIS in Iraq and Syria[18]

31. Current efforts to contain ISIS can be divided into two categories: preventing the group’s conventional territorial expansion moving beyond Iraq and Syria, and halting its efforts to establish a more covert presence outside of these countries. Territorially, Lebanon and Jordan have the most to fear. The US, France, Iran and Saudi Arabia amongst others are currently providing military aid for the purpose of countering ISIS border incursions. Jordan may ultimately face the need to counter similar attacks.

32. The UK’s primary route to containing the territorial ambitions of ISIS should be through the support of states neighbouring Syria and Iraq. In relation to security efforts, this would take the form of intelligence sharing, force training and - where appropriate - the transfer of certain military systems. Politically, there is a requirement to ensure that the Governments of the states in question move to address internal political and social issues that may result in their respective populations becoming receptive to ISIS’s ideology

33. The risk of ISIS establishing a more limited but operationally meaningful presence beyond Syria and Iraq is arguably more relevant from the perspective of the UK, as the threat Britain faces is from individuals and small groups of ISIS members. It would be possible for Britain to provide human and technical resources to upgrade efforts by Iraq and Syria’s neighbours to police their borders. However, the historically porous nature of the region’s boarders - together with the endemic corruption amongst many security personnel - means that attempting to limit the movement of ISIS members is likely to yield poor results.

Protection of vulnerable minorities in Iraq and Syria from ISIS

34. Current efforts to protect minorities in Iraq have two strands: the provision of humanitarian aid and direct and indirect military support for local forces in a position to protect the vulnerable groups in question. In Syria, the UK’s aid effort to support those impacted upon by ISIS has been a component of an already multi-year programme to support civilians caught up in the country’s wider civil war. In Iraq, provision of aid is a more recent effort that has specifically arisen from the rise of ISIS, and has included several military air drops to isolated communities. Although the US has conducted air strikes against militants directly threatening minority groups in Iraq and Syria, British efforts have evidently not consciously focused in this direction. [19]

35. The protection of vulnerable minorities is a policy option that could benefit substantially from the deployment of ground troops in a combat role. A limited effort which saw Special Forces deployed to provide situational awareness and target identification would - working in conjunction with local forces and air support - likely be adequate to halt the advance of ISIS in key areas. However, it must be recognised that this course of action would be inadequate to halt ISIS’s persecution of minorities in areas it already controls.

Roll-back of ISIS in Iraq and Syria

36. As with the US, it is presently the policy of the UK to assist in efforts to degrade and ultimately roll-back ISIS in Iraq using a combination of air power and local ground forces, whilst simultaneously addressing the underlying political issues that have, in part, led to the rise of ISIS. Britain has launched air strikes against ISIS militants in Iraq, contributed equipment and a small number of personnel to US training efforts and warmly welcomed the more inclusive Government that was recently formed in Baghdad. The UK’s position on ISIS in Syria is less well developed, although surveillance assets have been deployed in support of the US-led air campaign.

37. The first phase in stepping up the UK’s involvement in efforts to reverse the gains of ISIS is to authorise British forces to undertake offensive air actions against ISIS in Syria. Once this issue has been resolved, the UK could seek to deploy training teams to Syria[20] and Special Forces to support local forces in both Iraq and Syria - with efforts in the latter country directed towards aiding vetted elements of the Syrian opposition.[21] In addition, we believe that serious consideration should be given to the deployment of a combat support force to Iraq - principally in the form of transport helicopters and fixed-wing aircraft - in order to alleviate some of the logistics problems of the Iraqi Security Forces.

38. Diplomatically, there is a requirement for the UK to use its still considerable influence in the Gulf region to help cut off ISIS’s external funding: current efforts have so far been timid - largely out of fear of the economic impact of applying pressure to some of the few Governments in the world that currently have money to spare.

Regime change in Syria

39. Since 2011, it has been the policy of the British Government that President Assad of Syria should step down. Although the UK has refrained from involvement in direct military action, it has participated in extensive efforts to economically and politically isolate the Damascus Government.  US efforts to support the Syrian opposition have been half-hearted, with most of the external aid being donated by the Gulf Kingships and received by groups that are at various points along the Islamist spectrum. Whilst there have been many contributory factors, there can be little doubt that the principal responsibility for the rise of ISIS lies with the Assad Government. Inflicting a comprehensive strategic defeat on ISIS will not be possible without an inclusive Government in Damascus.

40. Any attempt to remove the current Syrian Government would be conditional on the prior defeat of the conventional (as opposed to terroristic[22]) elements of ISIS in Syria, as well as the establishment of a relatively unified political and military command structure in the territory liberated from the group. With this proviso, it would be possible to turn the Western-trained moderate Syrian opposition forces against the Government in Damascus. Such an effort would likely require the West to launch a US-led supporting air campaign similar in nature to that seen in Libya in 2011. There would also likely be a requirement for the deployment of a stabilisation force on the ground for post-conflict operations.

Part Three: Legal Basis

41. In joining the international coalition against ISIS, it is desirable that the UK’s actions are lawful under international law. This section of the Report will outline the legal objectives that the UK must attain if it decides to take more robust action against ISIS in Syria. It will also consider the alternatives to the current Government and international strategy, with a particular focus on the Responsibility to Protect, which should be at the forefront of any British action.

42. The legal basis for attacking ISIS is broken down into several components. Action in Iraq centres on Iraq’s right to self-defence, which is legally sound and accepted by the international community. Intervention in Syria, and elsewhere should the need arise, is more legally complicated as Iraq’s right to self-defence is not against Syria as a state, but against ISIS as a non-state actor, a notion which is contested under international law. However, the HSC maintains that action in Syria is lawful provided strict legal parameters are met, which will be outlined below.

43. Following Parliamentary approval to join the coalition in Iraq, the UK has been actively involved in the fight against ISIS. Whilst this has been somewhat of a controversial decision due to the UK’s previous involvement in Iraq, there is no doubt over the legality of the operation in Iraq or the objectives the coalition is trying to achieve. Following a series of offences by ISIS in Iraq over the summer – particularly the trapping of over 20,000 Iraqi Kurds on Mount Sinjar in August[23] – the Iraqi Government requested international assistance in its domestic fight against ISIS.

44. Invoking their right to self-defence – enshrined in both customary international law and Article 51 of the UN Charter – Iraq thereby consented to other states using force within their sovereign territory without it violating the prohibition of the use of force contained in Article 2(4) of the UN Charter.[24]  Provided the international coalition maintains the objective of assisting Iraq defeat ISIS without mission creep, the operation will be lawful. Through involvement in this operation, the UK can help protect Iraqi and Kurdish citizens by continuing to provide humanitarian assistance and assisting in training local military in an advisory role without risking British troops on the ground.

45. The objectives of attacking ISIS in Syria are similar: protecting civilians and preventing ISIS spreading. At present the situation in Kobane is similar to that on Mount Sinjar and the risk of ethnic cleansing or genocide is high if no action is taken.[25]  However, the legality of such an operation is more complicated, which is why fewer states have joined the ‘coalition of the willing’ in Syria. Without consent from the Assad Government for outside states to use force in Syria, airstrikes from the international coalition would, prima facie, violate Article 2(4) of the UN Charter, as Iraq does not have the right to self-defence against Syria as a state. However, gaining consent from Assad would be politically unacceptable due to the role the Syrian Government has played in the rise of ISIS.

46. Despite a potential violation of Article 2(4), the HSC contends that actions of the international coalition in Syria are lawful as they are an extension of Iraq’s right to self-defence against ISIS. Whilst traditionally states only have the right to self-defence against an armed attack carried out by another state, the international community has began to accept that the right to self-defence arises from attacks from non-state actors as well, particularly following 9/11 when the UN Security Council issued resolutions affirming America’s right of self-defence against al Qaeda.[26] 

47. In order to be classed as carrying out an armed attack, the non-state armed group must attain the ‘scale and effects’ of an armed attack, which it can do so through the accumulation of events doctrine alluded to in the Oil Platforms case before the ICJ.[27]  Undoubtedly the continued high scale violence against Iraq by ISIS would reach this threshold. Provided action against ISIS is necessary and proportionate – which thus far it has been – and is reported to the Security Council in conjunction with Article 51 of the Charter, Iraq’s right to self-defence against ISIS is engaged, regardless of where ISIS is situated. However, the issue of violating Article 2(4) of the UN Charter is also engaged, with airstrikes violating Syrian territorial sovereignty.

48. The ICJ in the Corfu Channel case set out that a state has a responsibility not to knowingly allow their territory to be used in a way that breaches another state’s rights.[28]  Syria is a safe-haven for ISIS due to the unwillingness and/or inability of the Assad regime to take action against them and, indeed, the lack of control over the remote region where ISIS has its stronghold has enable it to grow, which is the position US lawyers have put forward in support of their airstrikes in Syria.[29] Whilst there is no widespread support for the ‘unwilling and unable’ defence the US have relied on in Syria, UN Secretary-General, Ban Ki-Moon, appears to support the defence noting that air strikes took place in areas no longer under the effective control of the Syrian Government[30],  suggesting that the Syrian Government were unable to respond to threats from ISIS. The Syrian Government therefore has a lack of sovereignty over areas where ISIS operate and the HSC concludes it is lawful for the international coalition, including the UK, to extend its operations to defeat ISIS to Syria.

49. The same legal reasoning will apply and should be considered by the UK Government should the need to tackle ISIS, or another terrorist group, in other states arise.

50. If the international coalition does not tackle ISIS in Syria then it will be impossible to defeat the group and the threat will spread. It is essential that the objective of any mission in Syria is to protect civilians and defeat ISIS in order for the international coalition to maintain its legitimacy. The HSC has put forward earlier in this report that the only way to comprehensively tackle the threat of ISIS is to remove Assad from power. There is no legal basis in international law to support regime change; however, removing Assad may prove to be ‘illegal, but legitimate’, akin to the NATO mission in Kosovo. If the UK pursues intervention in Syria to tackle ISIS, it is essential that all aspects of the mission are carefully considered as it will set a precedent for future conflicts.

Alternatives to the UK Government’s current responses and the declared strategy of the International Coalition in Iraq and Syria

51. To date the Government has not authorised the deployment of ground combat troops into Iraq, and the Defence Secretary has recently made clear the government has no intentions to do so.[31]  However, the first air strikes against ISIS in Iraq were launched on 30 September, this year, following a majority vote in Parliament on the issue. In addition to RAF air strikes supporting the Iraqi Government in its fight against ISIS, and training to Iraqi fighters[32],   the UK is providing humanitarian aid to Iraq, in the form of humanitarian supplies and humanitarian funding. [33] Although the RAF is engaged in air strikes against Iraq, no action has been authorised against Syria. At present the RAF is gathering intelligence by flying surveillance missions over Syria, however such aircraft are not authorised to use weapons in Syria. [34]

52. In addition to the international coalition’s operation to support the Iraqi Government in its fight against ISIS the US, and some of its coalition partners, are currently carrying out air strikes against ISIS in Syria. Unlike the Iraqi Government[35],   the Syrian Government has not requested assistance to fight ISIS. Air strikes were launched without the consent of the Syrian Government and therefore the legality of such strikes rest in murky legal water.

53. Thus far the UN Security Council has not authorised the use of force against Iraq or Syria, however Resolution 2170 envisaged a collective international response to the threat posed by ISIS. In absence of the Security Council’s authorisation to use force against Syria the international coalition must rely on other legal reasoning to justify its use of force. US lawyers have relied on Iraq’s right to self-defence against ISIS, and the weakness of the Assad Government in Syria as justifications for conducting air strikes outwith Syria’s consent[36], a position which this HSC believes to be the correct approach.

54. The most legally sound route to respond to the threat posed by ISIS would be through SC authorisation to use force against ISIS in both Iraq and Syria, as this would remove any doubts regarding the legality of force used by coalition States. Thus far the SC has not authorised the use of force in either Iraq or Syria, and the possibility seems dubious, as all five permanent members of the SC must reach unanimous agreement. Based on Russia’s criticism of US air strikes against ISIS in Syria[37] it would be unlikely Russia would agree to a Chapter VII Resolution authorising the use of all necessary means in Syria.

55. Although the international community has not found overwhelming support for the concept of humanitarian intervention, the focus has shifted from a right to intervene to a responsibility to protect. The Responsibility to Protect doctrine recognises that the international community has a responsibility to protect where a State is unable or unwilling to protect its population against genocide, crimes against humanity, war crimes, or ethnic cleansing. Inaction of the Government in which mass atrocities are taking place justifies the incursion into that State’s territory without violating their sovereignty and the fundamental prohibition on the use of force. According to the UN Report on the Protection of Civilians in Armed Conflict in Iraq, ISIS’s systematic and intentional targeting of civilians amounts to war crimes and crimes against humanity.[38]  As has been noted previously, the Syrian Government are unable to prevent ISIS attacks; therefore the international community have a responsibility to protect.

56. Regardless of the lack of consensus among MPs, David Cameron believes there are no legal barriers to taking action in Syria, and is prepared for intervention if there is an urgent humanitarian need.[39]  Undoubtedly the most legally sound basis for justifying intervention in Syria is Security Council authorisation, however outwith Security Council authorisation there are other legal avenues the UK could base its intervention on. If an urgent humanitarian need to intervene in Syria arises, the UK could launch air strikes against ISIS based on collective self-defence against ISIS and the Responsibility to Protect. The UK Government should be at the forefront of pursuing the Responsibility to Protect as both a legal and political basis for humanitarian intervention, which the HSC has noted in previous submissions to the Defence Select Committee.

How would the absence of a political or regional solution affect the case for military action?

57. It is this HSC’s opinion that a political solution to defeat ISIS cannot be achieved. This is because of the diverse political interests in the region, which would prevent any appropriate and feasible political solution being achieved, but also because any such solution would require negotiation and compromise with ISIS. This would not be practically possible given the organisation’s decentralised structure and lack of legitimate and coherent political objectives around which a negotiated solution could be built. Secondly, and most importantly, it is certainly not morally permissible given the organisation’s aggressive and barbaric strategies for extending its territorial control and advancing its wicked ideology based on fear, repression and intimidation.

58. ISIS can only, and must, be defeated through the use of force. The organisation must be eradicated. To do anything else would endorse and legitimise it as an organisation – a consequence which the international community must avoid. It would also be a dangerous and an inappropriate course of action given the organisation’s objectives, purpose and barbaric actions in pursuing its strategy of establishing a Caliphate. ISIS is a terrorist organisation as must be treated as such. It would also set a dangerous precedent to recognise the organisation as anything other than a terrorist group with whom negotiation would not appropriate.

59. The UK’s approach must therefore be a robust one. It must include direct military action to defeat ISIS but also the provision of training and logistical support to the Iraqi army to assist them in their objective of defeating and forcing ISIS from Iraq. It should also include substantial humanitarian assistance to alleviate the human suffering throughout the region caused by the rise and spread of ISIS. This strategy must however be conducted in accordance with international law. This is to maintain political and public support for military action, to ensure its legitimacy (and perceived legitimacy amongst the broader international community) and to uphold the international rule of law. As has been described above, UK military action in Iraq to defeat ISIS is lawful as long as Bagdad continues to authorise such western operations on its territory.

60. Targeting ISIS in Syria, in support of Iraq’s self defence, would also be lawful in those areas that cannot be said to be under the control of Damascus (as in theory no breach of Syrian sovereignty would occur). However, intervention against the Syrian regime, including to defeat the regime, with the objective of stabilizing the region and creating more favourable conditions in which ISIS could defeated more easily and prevented from re-grouping would not be legally permissible without United Nations Security Council authorization. This is because such action would constitute a breach of Article 2 (4) of the UN Charter – removing a regime is undoubtedly an interference with a state’s internal affairs and a use of force.

61. Such authorization is almost certain not to occur. Even if objectively one considers that the existence of the Assad regime allows IS to operate, and even flourish, (and thus the regime in Damascus can be considered to be constructively complicit in the operation of ISIS & inextricably bound with its ongoing survival) and therefore represents a threat to international peace and security, Russia and/or China would very likely veto a resolution that proposed military action against the Assad regime.

62. It would however be difficult to make out technically, in order to satisfy the relevant legal threshold under Chapter 7 UN Charter, that the actions of the Assad regime represents a threat to international peace and security for which military intervention to remove the regime could be authorised. This is because it is ISIS that is the central threat and the focus of military action at the present time. It could be argued that the Assad regime is constructively a threat to international peace and security by allowing ISIS to operate on its territory. This is however a difficult argument to make out and particularly in light of the fact that Damascus is taking action against ISIS, albeit motivated by different political objectives i.e. to protect the Syrian regime. Removing the Assad regime may therefore be a step too far, legally.

63. It could however be morally permissible and legitimate on the basis that, and only if, the existence of the regime in Damascus continues to sustain circumstances in which ISIS can thrive and whilst it continues to exist ISIS cannot be defeated. This argument also takes account of the gross human rights violations that the regime has committed, and continues to commit, against its own people and that it is not a regime which should be able to avail itself of the protection associated with sovereignty i.e. non-intervention. It may however be difficult to find broad political support for this approach and such support its necessary to legitimize it – without broad international support it would be difficult for the UK and any coalition partners to gain support for the action and attract the finding that military intervention against the Assad regime is “illegal but legitimate”.

64. This is however an inherently political decision for the UK Government, it being not technically lawful under international law but perhaps legitimate considering the broader legal objectives of maintaining international peace and security, promoting and protecting human rights including preventing genocide, crimes against humanity and war crimes, and ensuring the security of hundreds of thousands of innocent people within the region at risk of harm from ISIS and the continuing existence of the Assad regime.

November 2014