Written evidence from Anthony Paphiti[1] (RTP0004)

 

Executive Summary

 

Background

  1. The R2P concept was devised to address the international community’s failure to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity. The impetus came in the wake of the large-scale genocide in Rwanda. Its reasoning is that, where a State fails to protect its populations or is in fact the perpetrator of crimes, the international community must be prepared to take stronger measures, including the collective use of force through the UN Security Council.[2] There is, therefore, no unilateral right to conduct R2P operations without UNSC authorisation.
  2. It is often conflated with the so-called contentious concept of "humanitarian intervention", which features nowhere in the UN Charter and is an interventionist argument that can only be employed under a doctrine of "Might is Right" It operates without any supervision by the Security Council.

 

The Law

  1. The use of force in international law is lawful in only three situations, when a State:

1. Is authorised under article 2(4) of the UN Charter; or

2. Acts in self defence, in accordance with article 51 of the Charter; or

3. Responds to a request by another state for assistance,[3] for example as a result of a treaty arrangement or through Regional Arrangements, such as NATO.

  1. The so-called right of anticipatory self-defence is controversial and, in any event, applies only to those cases where a Government must show

"a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of [the state on whose territory the invading force is based],- even supposing the necessity of the moment authorized them to enter the territories of the [state where the attack takes place] at all,-did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it."[4]

  1. In 1949, the International Court of Justice set down a clear principle in relation to military intervention, when it decided the Corfu Channel Case. The UK government contended

a new and special application of the theory of intervention, by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task.[5]

  1. In response to the UK's argument of a right to intervention, the Court held

the Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself.[6]

  1. This decision, and its dicta concerning the principles of non-intervention and the right of every sovereign State to conduct its affairs without outside interference, breaching sovereignty and international law, was confirmed in the case of Nicaragua –v– United States.[7] The court discussed how the principles had since been reflected in numerous declarations adopted by international organizations and conferences, citing the General Assembly resolution 2131 (XX),[8] and the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. [9]

 

  1. It is clear that there is no right to direct or indirect forms of interference threatening the sovereign personality and the political independence of States, or to effect "regime change". Thus, the crime of aggression, punished at Nuremberg, has now become a specific offence under article 8bis of the Rome Statute, although none of the P5 members has ratified the amendment.[10] It comes into force on 17 July 2018.[11]

 

To what extent have UN member states fulfilled their commitment made in 2005 to protect civilian populations from genocide, war crimes, crimes against humanity and ethnic cleansing? Has the UK fulfilled its commitment?

  1. These are grave crimes, most of which occur within the context of armed conflict, whether internal or international.
  2. Insofar as the United Kingdom is concerned, the military intervention in Libya is often cited as an example of the successful implementation of the Responsibility to Protect. This use of force, authorised under Chapter VII of the Charter, was set out in Security Council Resolutions 1970 and 1973, the latter specifically authorising a No-Fly Zone and the use of force "to protect civilians and civilian populated areas under threat of attack". The allegation at the time was that Muammar Gaddafi was threatening a genocide against rebels in Benghazi, although this has been actually doubted by experts. The incitement of the international community was achieved through a warning by Libya's Deputy Ambassador to the United Nations, Ibrahim Dabbashi.[12]
  3. The earlier intervention in Kosovo, in 1999, was not authorised by the UN Security Council, although the Kosovo Commission subsequently described it as "illegal but legitimate"; a moral imperative to respond to a threat of genocide.

"It was illegal because it did not receive prior approval from the United Nations Security Council. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule." [13]

 

  1. It is often cited as a successful example of Humanitarian Intervention. The subsequent UNSC Resolution setting up KFOR and its deployment to Kosovo could arguably be seen as a form of retrospective legitimisation.[14] It could also be argued that this step was a pragmatic attempt to deal with the status quo, rather than conferring legitimacy.
  2. The intervention in Afghanistan in October 2001, in response to the September 11 terrorist attacks on the US, was without UN authorisation, although a number of Security Council Resolutions quickly followed.[15] It was initially successful but, over the succeeding years has failed to achieve the stability intended, nor has it removed the Taliban. The lack of success was due to the will of the international community not being matched by the resources assigned to task. Objectively, one would not describe this as a successful intervention. But this begs the question, how does one measure success?
  3. In contrast, the UK intervention in Syria in April was not authorised by the United Nations Security Council, did not fall within the ambit of any defence of self defence, was not in conformity with our own subjective criterion of alleviating "overwhelming humanitarian suffering", nor was it remotely within the controversial Caroline principles. Our presence there is aimed at "Her Majesty’s Government ... taking military action, specifically airstrikes, exclusively against ISIL in Syria"[16] under the authority of the UN Security Council.[17] UK forces are not authorised to engage Syrian government forces or infrastructure, or to act in protection of any section of the Syrian people or terrorist movement against the government. This illegal unilateral action by airstrikes in April harms the cause of those promoting UHI and concomitantly damages the cause of R2P.

 

 

Is the concept of R2P being effectively implemented through UN mechanisms?

  1. R2P exists to deal with humanitarian crises that fall within defined criteria (see above, on page 1). At present, these criteria do not explicitly refer to the use of Chemical Weapons. While states may be willing to politically condemn the proven use of CW by another state on its own people, they may be reluctant to view the matter as one of "overwhelming urgency" when viewed within the general scale of violence taking place. R2P looks at the overall severity of the situation in respect of responding to "the most heinous crimes known to humankind". Put bluntly, do the deaths of a few, allegedly by chemical weapons, justify invoking R2P?
  2. The UN Security Council showed, in the case of Libya, that it was prepared to come together to take action to deal with a serious crisis. Even though the vote was close, with only 10 nations voting in support of resolution 1973,[18] crucially no nation exercised a veto.[19] However, it appears that the manner of the interpretation of the mandate provided by the Security Council has dealt a severe blow to future R2P operations. It has been said that the coalition/NATO force exceeded the clear authority to protect civilians and became a de facto air force for the rebel force,[20] attacking Gaddafi’s forces wherever and whenever they could be found, as deliberate targets and targets of opportunity. In criminal law, exceeding the lawful use of force is a criminal offence in itself. It can be argued that the same applies to those blatantly exceeding a UNSC mandate.

 

Could the concept of R2P be reformed to make it more effective? If so, how?

  1. R2P can work successfully if, as the Libya process shows, implementing/enforcing nations do not manifestly breach the provisions of the authorisation given by the Security Council. At present, so much confidence in the process has been lost as a result of the way the Libya intervention was prosecuted, that huge diplomatic efforts will be needed to restore it. This will require working with Russia and China rather than alienating them. Insisting on any policy which fails to take into account the geopolitical and strategic interests of Russia and China is building-in failure.
  2. R2P  requires UNSC authority. The authorisation rests properly within the Security Council, rather than the General Assembly, as it is the SC that holds the legal powers necessary to implement R2P. The frustration at the exercise of a veto by a member state on the P5 is not a reason ipso facto for abolishing or removing the veto. Indeed, as Sir Mark Lyall Grant recently pointed out in a BBC discussion on Syria,[21] the chances are that the US, Russia or China would walk away from the UN entirely if that were the case.
  3. Some commentators suggest that The "Uniting for Peace" procedure,[22] should be employed to overcome any deadlock in the Security Council. It should be recalled that, when this was voted on in 1950, the membership of the UN was much smaller, standing at 58 nations, from which 52 voted in favour of the Resolution. Since then, some of those nations no longer exist (for example, the USSR), or have changed (through separation, for example, Czechoslovakia), and membership stands now at 193 nations, namely, more than three times the original membership. In the event, it is unclear whether a vote taken so long ago, on such an important matter, by so few nations relative to the current membership, still carries any authority.
  4. The UfP procedure is tantamount to a change to the UN Charter, as the General Assembly arrogates to itself the authority to take "collective measures" to maintain international peace and security which means, in any case where there is a "breach of the peace, or act of aggression, the use of armed force when necessary to restore international peace and security". [A1]. These powers in the Charter are actually reserved to the Security Council. Article 39 makes it clear that it is the SC's responsibility to "determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." There is no reference to the General Assembly being able to exercise these powers. Indeed, article 12(1) of the Charter stipulates,

While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

  1. Moreover, it must be noted that the UfP process has not actually authorized military intervention and use of force during the emergency sessions it has had. The most it is empowered to do is make recommendations to the Security Council. So, using the UfP procedure to authorise force is, in fact, unconstitutional. As was noted by Andrew J. Carswell,[23]

"However, [the UfP Resolution] went too far when it assigned to the Assembly a role that effectively usurped the primary role of the Security Council in the maintenance of international peace and security. When P5 members realized that it potentially restricted their respective sovereign interests, it was relegated to obscurity."

  1. Uniting for Peace has been implemented 11 or 12 times since the adoption of General Assembly resolution 377 (V) on 3 November 1950, depending on how one characterises the decisions on the situation in Korea in 1951. The "General Assembly nonetheless employed language from Uniting for Peace. Moreover, this is the case most frequently associated with Uniting for Peace as resolution 377 (V) was adopted in response to the 6 and 12 September 1950 vetoes by the USSR ".[24]
  2. The mechanism for changing the UN Charter is to be found in the Charter itself, in Article 108, which stipulates,

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

 

To what extent is humanitarian intervention recognised as an exception to the general prohibition on the use of force? Should it be more widely recognised as an exception?

 

  1. The International Coalition for The Responsibility to Protect points out on its website:[25]

"... the invasion of Iraq in 2003, premised in part on an argument of humanitarian intervention, was even more destructive to the advancement of the RtoP agenda. The invasion heightened concerns that RtoP would be used to further erode the sovereignty of smaller developing countries."

  1. R2P is focused on an "international responsibility to protect populations from grave threats". This is a fundamental concern which still resonates today. It is why it rests on a UNSC mandate to authorise intervention.
  2. The United Kingdom is one of only a handful of countries that insists on Unilateral Humanitarian Intervention (UHI) as a right under international law, in contrast to many who oppose it.[26] It completely conflicts with the principle of non-intervention and respect for sovereignty outlined in the Corfu Channel Case and the rejection articulated in the ICJ decision in the Nicaragua case. It is nowhere to be found in the UN Charter. It is an interventionist concept which would support the most egregious breaches of international law. Many legal scholars do not accept that such a right exists.
  3. At the 17th Summit of Heads of State and Government of the Non-Aligned Movement,[27] the Movement’s commitment was re-affirmed

… to enhance international cooperation to provide humanitarian assistance in full compliance with the UN Charter and mindful of the relevant UN resolutions, where applicable, in particular 46/182 and in this regard, they reiterated the rejection by the Movement of the so-called “right” of humanitarian intervention, which has no basis either in the UN Charter or in international law

  1. The airstrikes on Syria, conducted by the US, UK and France, in April 2018, were justified by the United Kingdom on the basis, inter alia, of a right to unilateral humanitarian intervention, " on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering."[28] This is a contentions claim [29] yet, even by its own standard it would appear that the government's case was not made out. Citing as a justification the deaths through alleged chemical usage of a small number of people, however, tragic, against the deaths of thousands from conventional means, does not accord with the justification for averting "overwhelming humanitarian suffering".
  2. A recent survey carried out by Just Security shows that it was only the UK and France that set out a legal justification for the strikes.[30] At the time of this submission, data has been collated from 133 states, only two of which argue a legal justification, namely, UK and France.
  3. A further difficulty is that there is no uniform standard to determine what amounts to a humanitarian crisis, contrary to the standard set out in the R2P concept (genocide, crimes against humanity etc). How much verification and attribution must there be in order to justify a use of force under the guise of UHI? Moreover, it is a subjective assessment of the state(s) that propose intervention. It is not subject to any oversight. As it lacks UN Charter authorization it may amount to the crime of aggression under the Rome Statute, rendering individuals – including government officials – individually liable.[31] While the United Kingdom has not formally ratified the Kampala Amendment on aggression, it has made "positive references to the amendments".[32]
  4. Section 12 of the Armed Forces Act 2006 imposes a duty on a serviceperson to obey lawful orders. The Statute of the International Criminal Court[33] reflects this principle in relation to obedience to superior orders. Such orders will not relieve a person of criminal responsibility where the order is 'manifestly unlawful'. Bearing in mind the paucity of legal support for an order to participate in a war of aggression, such an order could be considered to be manifestly unlawful. Irrespective of the view of domestic jurisdiction, a serviceperson therefore could be exposed to liability under the Rome Statute for obedience to it.
  5. If one looks at the lack of legal restraint mechanisms for UHI, one can see immediately the terrifying potential consequences: a policy of "might is right" judged according to the subjective assessments by the intervening nation of a humanitarian need, with ill-defined objectives and free from supervision. It could be used to justify aggression such as the interventions and occupation of Cyprus, the interventions in Georgia, Crimea and the Donbas region of Ukraine. The potential for further justification of intervention in the Baltic region is palpably obvious. Only states – or coalitions – with powerful militaries can take UHI.
  6. Ultimately, being so much at odds with the Charter, the chances are that pursuing Humanitarian Intervention outwith the mechanisms of the Security Council would neutralize the United Nations and the Charter, resulting in the effective collapse of the institution.

 

In the case of the use of weapons of mass destruction against civilian populations what rules in international law should apply?

  1. The current international regulatory system is to be found in a number of international documents such as The Biological Weapons Convention; The Convention on the Prevention and Punishment of the Crime of Genocide;[34] and The Geneva Protocol.[35] These legal documents provide no mechanism for unilateral action in case of  a breach. The Chemical Weapons Convention, [36] for example, makes clear that all disputes between States parties shall be settled by peaceful means. Moreover, if the General Assembly permits, a reference of the dispute may be made to the International Court of Justice for an advisory opinion.[37]
  2. Article 8  of The Rome Statute does provide for prosecution of Grave breaches of the Geneva Conventions, which include wilfully causing great suffering, or serious injury to body or health and intentionally directing attacks against civilians.
  3. The question about what rules should apply, is really already answered in the form of the UN Charter and the R2P Coalition. The problem, it is suggested, is getting states to agree to use existing powers under the UN Charter. The difference in views of Security Council members in agreeing common principles and what amounts to a threshold for action is yet to be resolved.[38] Much of that resolution will depend upon the rebuilding of confidence after what Russia and China[39] saw as a serious abuse of the mandate in the Libya intervention.[40] It is suggested that the graver the trigger event eg acts of genocide or crimes against humanity, the greater the likelihood of a consensus in the Security Council. The fear of genocide was the trigger for the Kosovo intervention which, in the end, included Russian participation as part of the Kosovo Diplomatic Observer Mission and, subsequently, KFOR.[41]
  4. The UK position to justify attacking Syria, "to alleviate overwhelming humanitarian suffering",  was not made out, as the pretext was an alleged CW attack where responsibility and motive were not proven,[42] which allegedly killed or injured a small number of civilians.
  5. The problem is in nations themselves defining "humanitarian intervention" in such a liberal way that it is tantamount to a licence to intervene. That is contrary to the Charter. Despite the UK's position on UHI, it has little support internationally or in opinio juris.
  6. Building trust between states, acting honourably and with integrity are vitally important to repair the deficit of trust currently apparent in the Security Council. Just because a state disagrees with the way in which a particular situation is defined cannot be a reason for that state to act unilaterally when not authorized by the Security Council itself. The interests of other P5 members must be considered. There must be adequate, reliable and impartial evidence of guilt in support of any accusation. To act unilaterally undermines the entire rationale of the United Nations process, breaches international law and, in the words of the ICJ, "might easily lead to perverting the administration of international justice itself".[43]

May 2018

[1]   Called to the Bar in 1975 (Inner Temple) and practised in London (Crime and general Common Law) until joining the Army Legal Service in 1981 as a lawyer, undertaking principally a role as a prosecutor before courts-martial. Service included two operational tours and 4 years with NATO.  Latterly, responsible for the day-to-day running of the Army Prosecuting Authority.  Author of the Military Justice Handbook for Court Martial Practitioners, 2013. On retirement from the army, after 25 years service, returned to the Criminal Law as prosecutor before establishing the Aspals Consultancy, focusing on military law.

[2] International Coalition on the Responsibility to Protect: http://responsibilitytoprotect.org/index.php/about-rtop Embedded video of Dabbashi's genocide warning.

[3] Russia's assistance to the Syrian government is in response to its request and falls within this principle.

[4] The Caroline Case, 1837. Extracted from Yale University Law School's Avalon Project: http://avalon.law.yale.edu/19th_century/br-1842d.asp

[5] The Corfu Channel Case (Merits) Judgment of April 9th, 1949, at p.34: http://www.icj-cij.org/files/case-related/1/001-19490409-JUD-01-00-EN.pdf

[6] Ibid, Corfu Channel Case, at p.35

[7] Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua v. United States Of America), 1986, §202-§203,at p.96-97 http://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf

[8] A/RES/20/2131, 21 December 1965. "Deeply concerned at the gravity of the international situation and the increasing threat to universal peace due to armed intervention and other direct or indirect forms of interference threatening the sovereign personality and the political independence of States": https://www.ilsa.org/jessup/jessup15/Declaration%20on%20the%20Inadmissibility%20of%20Intervention%20in%20the%20Domestic%20Affairs%20of%20States%20and%20the%20Protection%20of%20Their%20Independence%20and%20Sovereignty.pdf

[9] See, General Assembly A/RES/36/103, 9 December 1981: http://www.history.ubc.ca/sites/default/files/courses/documents/%5Brealname%5D/un_resolution_103_0.pdf "Conscious also of the imperative need for any threat of aggression... against sovereign States to be completely ended... No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States."

[10]  Inserted by resolution RC/Res.6 of 11 June 2010: https://treaties.un.org/doc/source/docs/RC-Res.6-ENG.pdf As at 8th December 2017, 35 States have ratified the Kampala amendments on the crime of aggression: https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/ The United Kingdom has made a "positive reference to the amendments". There are 123 countries that are States Parties to the Rome Statute of the International Criminal Court. However, they do not include the USA, China and Russia: https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#C

[11]  ICC-ASP/16/L.10, §1:  http://www.ejiltalk.org/wp-content/uploads/2017/12/ICC-ASP-16-L10-ENG-CoA-resolution-14Dec17-1130.pdf

[12] Daily Telegraph, 23 Feb 2011 https://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8342349/Gaddafi-speech-was-code-to-begin-genocide-against-Libyans.html

[13] Kosovo Report, ibid p.4. Available on-line: https://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf

[14]  UNSCR 1244, of 10 June 1999: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1244(1999)

[15]  1378 (2001) Adopted on 14 November 2001; 1383 (2001) Adopted on 6 December 2001; 1386 (2001)

Adopted on 20 December 2001 (which authorized the International  Security Assistance Force to assist

the  Afghan  Interim Authority); 1510 (2003) Adopted on 13 October 2003 expanded the ISAF mandate to support the Afghan Transitional Authority in areas outside Kabul.

[16]  See: HC Deb, 2 December 2015, col. 323: https://publications.parliament.uk/pa/cm201516/cmhansrd/cm151202/debtext/151202-0001.htm#15120254000002

[17]  UNSC Resolution 2249 (2015), of 20 November 2015: http://undocs.org/S/RES/2249(2015) See §4: "Calls  upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL as well as ANF, and all other individuals, groups , undertakings, and entities associated with Al Qaeda, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the Statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;"

[18] Article 27 requires a minimum "affirmative vote of nine members including the concurring votes of the permanent members".

[19] On the exercise of the veto, see the excellent rejoinder by Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University, " On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan", EJIL Talk!, May 4th, 2018: http://opiniojuris.org/2018/05/04/on-the-legality-of-the-russian-vetoes-in-the-un-security-council-and-the-harsh-reality-of-international-law-a-rejoinder-to-professor-jennifer-trahan/

[20] "NATO’s Operation in Libya - Not a Model for Military Interventions", by Dr Marco Overhaus, SWP Comments 36, November 2011, at p.2, Stiftung Wissenschaft und Politik, German Institute

for International and Security Affairs: https://www.swp-berlin.org/fileadmin/contents/products/comments/2011C36_ovs_ks.pdf

[21] "The Real Story", presented by Carrie Gracie, https://www.bbc.co.uk/programmes/w3cswkcz at 40:43

[22] A/RES/377(V), 3 November 1950, 302nd Plenary Meeting

[23] "Unblocking the UN Security Council: The Uniting for Peace Resolution", Journal of Conflict and Security Law, Volume 18, Issue 3, 1 December 2013, Pages 453–480, https://doi.org/10.1093/jcsl/krt016

[24] See, Security Council Report October 2013 – "Security Council Deadlocks and Uniting for Peace":

An Abridged History: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Security_Council_Deadlocks_and_Uniting_for_Peace.pdf

[25]  http://responsibilitytoprotect.org/index.php/about-rtop

[26] Belgium (https://diplomatie.belgium.be/en/policy/development_cooperation/how_we_work/channels_of_aid/humanitarian_aid ), and Denmark (http://www.un.org/ga/webcast/statements/denmarkE.htm ) are two nations that support UK. UHI was rejected by the Heads of State and Government of the member countries of the Group of 77 and China at their summit in Havana, Cuba, 10-14 April 2000

[27] 17 -18 September2016: http://cns.miis.edu/nam/documents/Official_Document/XVII-NAM-Summit-Final-Outcome-Document-ENG.pdf ibid, §777

[28] "Syria action – UK government legal position", https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position

[29] As per Lord Goldsmith, former Attorney General, advice of 7 March 2003, at §4: "The doctrine remains controversial".

[30] "State Reactions to the Syria Strikes of April 2018": https://i0.wp.com/www.justsecurity.org/wp-content/uploads/2018/04/Map-PNG-1.png?ssl=1 See also the pie chart data, updated, at: https://www.justsecurity.org/55790/update-mapping-states-reactions-syria-strikes-april-2018/

[31] Article 25 and Article 27

[32] Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, as at 8 December 2017: https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/ It is not known what the UK's "positive reference" is, or what it means.

[33] See, ibid, Article 33, "Superior orders and prescription of law"

[34] Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. "Convention on the Prevention and Punishment of the Crime of Genocide", http://www.hrweb.org/legal/genocide.html Article 8 provides for a Contracting Party to call upon the "competent organs of the United Nations" to take such action under the UN Charter as they consider appropriate.

[35] Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, And of Bacteriological Methods of Warfare: https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/assets/WMD/Bio/pdf/Status_Protocol.pdf

[36] Chemical Weapons Convention https://www.opcw.org/chemical-weapons-convention/

[37] Ibid, article 14(5)

[38] See the excellent discussion in " Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention", by David Hughes and Yahli Sherehshevsky, Opinio Juris, May 7th, 2018: http://opiniojuris.org/2018/05/07/something-is-not-always-better-than-nothing-against-a-narrow-threshold-justification-for-humanitarian-intervention/

[39] "Russia, China Accuse West of Exceeding UN Resolution, Making Libyan Crisis Worse", CNS News, March 29, 2011: https://www.cnsnews.com/news/article/russia-china-accuse-west-exceeding-un-resolution-making-libyan-crisis-worse

[40] See, for example, "Putin’s rationale for Syria" , by Mary Dejevsky, The World Today, February & March 2018, at p.45: https://www.chathamhouse.org/system/files/publications/twt/Putin%E2%80%99s%20rationale%20for%20Syria%20Dejevsky.pdf "Much of the rest of the world, however, sees humanitarian intervention as a self-

interested excuse for interfering in other countries’ internal affairs. And legally, Russia is in the stronger position... Russia also argues that the West exceeded the UN mandate it received for its intervention in Libya."

[41] "NATO's role in relation to the conflict in Kosovo": https://www.nato.int/kosovo/history.htm and also, "The Kosovo Report", The Independent International Commission On Kosovo, 2000, at p.96: https://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf

[42]  Although the British press and media were ready to attribute blame to Syrian Government forces, their view was not shared by a more skeptical foreign press. For example, the veteran German reporter, Uli Gack, " Douma Chemical Weapons? ZDF Report, 20 April, by Uli Gack", who reported a different version related to him by witnesses: https://youtu.be/9A8yNtpZRXg See also the ARD (German) discussion of "Fake News" which questioned the motive for the attack, " 'Giftgas' in Duma - ARD rudert zurück", https://youtu.be/ZYbQ1-zBYX0 This scepticism was shared by UK veteran award winning reporter, Robert Fisk, in his article in the Independent, "The search for truth in the rubble of Douma – and one doctor’s doubts over the chemical attack", 17 April 2018: https://www.independent.co.uk/voices/syria-chemical-attack-gas-douma-robert-fisk-ghouta-damascus-a8307726.html The question of motive and military logic was profoundly questioned by two very senior former military officers, Lord West, interviewed by the BBC: https://youtu.be/BROMV0nJvyE and Major General Jonathan Shaw, on Sky News: https://youtu.be/Uxi_XajCe5Y . See also the interview with Senator Richard Black, a former US Military criminal lawyer and now State Senator for Virginia, who pointed out the absence of motive for the Douma gas attack and why it made no military sense. He posed 6 questions journalists should have asked about: https://youtu.be/nUXDEvt2bfw?t=711

[43] See Corfu Channel Case, supra on page 2.