The legalities of British military action in Syria may be as controversial as the moralities of doing so.
A choice with so much at stake has landed on the shoulders of another prime minister. This time the question relates to Syria, a troubled state beset by a complex and gruesome war. A recent use of chemical weapons against citizens during the conflict has sparked further debate as to whether military intervention by the West is now necessary. “Use of chemical weapons cannot go unchallenged,” said Theresa May this week, shortly before joining the US and France in launching air strikes on Syrian chemical weapons depots.
There are three distinct preliminary issues which need to be addressed on this matter. The first is a domestic one, that is to say how the UK may seek to municipally authorise the use of force against the Syrian state. The second is whether such a use of force may be permitted on the international legal plane. Once these questions of legality are resolved, the final issue is whether the use of force should be used at all, which is more of a question of morality than legality.
Historically, the British constitution has vested the power to wage war solely with the government. This is due to the existence of the royal prerogative powers, which are a set of powers previously belonging to the Crown and now utilised by the government. These powers exist only residually; their existence is now largely dependent on Parliament since the legislature can limit, control or abolish them if it wanted to.
However, more recently, foreign military intervention has been subject to a vote in Parliament. This was the case in 2013 when the House of Commons voted against military intervention in Syria, a move which also led to the US quitting such plans. This may suggest that the power to declare war is one that can no longer be exclusively exercised by the government, but requires parliamentary consent.
Yet this is not totally accurate. The government is actually under no constitutional obligation to follow Parliament’s view. So even in 2013, Cameron and his government could have, in theory, ignored the vote in Parliament and go ahead with military action. However, such action may be deemed rather undemocratic even if it is not technically unconstitutional. Tony Blair even thought it unconscionable in 2006 to go to war without a parliamentary debate barring exceptional circumstances in which the UK’s security was at stake and speedy action was required.
It seems likely that Theresa May will make use of the prerogative to deploy troops into Syria alongside French and American forces. One could question why the Prime Minister appears to be siding with this method as opposed to following the precedents set by Blair and Cameron. The answer may be that due to the lack of a Conservative Party majority in the House of Commons, combined with a Labour Party which seems opposed to military action in Syria (especially its front bench), Mrs May perhaps fears that a vote in Parliament would not go her way. She may not want to follow in Cameron’s footsteps.
But the next issue that would need to be addressed is whether the use of force by the UK, France, the US and possibly others against Syria is permissible under international law. Superficially, the use of force by states is prohibited under Article 2 of the UN Charter. This also reflected in Article 1 of the North Atlantic Treaty. There are, however, a number of exceptions to this prohibition. One of those is that of humanitarian intervention. This argument suggests it is the duty of states to suppress vulgar acts conducted in other states. The use of chemical weapons in Syria, which were allegedly deployed by the Syrian state on its own citizens, would constitute as one of those acts.
A similar justification was used in respect to the military action in Kosovo in 1999, in which it was argued by the UK government that action had to be taken to circumvent the humanitarian catastrophe taking place there. But two main problems arise. Firstly, it is not absolutely clear that the Syrian state was behind the use of the chemical weapons. The state has been accused of such acts numerous times since it became engulfed in conflict, but the consensus appears to be that it is almost certain that the Syrian state is to blame. Russia has consistently rejected such a claim.
The second problem with the justification is that its legality is somewhat questionable. It is not a firmly established legal exception to the use of force under international law, and it as a basis for military intervention in other states has been criticised as unlawful in the past. This was the case with the intervention in Kosovo, of which states such as China, Russia and India opposed at the time.
But apart from the legalities of the debate, the next issue is perhaps the most contestable one of them all: would it be just to militarily intervene in Syria? A central theme of international relations in recent times has consisted of States trying to do ‘the right thing’, whatever that may be. Such a task is never easy, but it appears unlikely that the West will turn a blind eye to the atrocities taking place in Syria. Various considerations will have to be made, from the kinds of forces which could be used to how further escalation may be avoided. The threat of Russia also looms, which will make the decision all the more fraught with danger. If military action is taken, it will prove a significant turning point in the Syrian conflict, and one that will hopefully be for the better.