Euro-Med HR Monitor: International Law and the Protection of Civilians

As part of the ICRD’s seminar on the protection of Syrian civilians, the Euro-Mediterranean Human Rights Monitor prepared a session on pertinent issues of law when it comes to civilians embroiled in the Syrian conflict.

Find below the talk by Sara Pritchett, Spokesperson for the Euro-Med Human Rights Monitor at Parliament on 11 July 2018:

The legality of the airstrikes is the first thing I want to talk about because it can be debated for the rest of the day … who approves of those and who doesn’t. They were illegal. 
 
The justifications provided by the UK was primarily the enforcement of the Convention on Chemical Weapons. That was a humanitarian clause to prevent Syrians and civilians from further attacks and that it constituted self-defence. It was primarily a humanitarian clause but self-defence also formed the argument. 
 
So breaking it down, we just want to look at the self-defence claim because it is a really important one and a dangerous precedent to set if we ignore it. 
 
The United Nations Charter provides two limited circumstances where a state can lawfully use force against another state: with the permission of the United Nations Security Council or in self-defence. Self-defence can only be used in the case of an imminent and definite threat against that state. It can’t be a future threat, it can’t be an ambiguous risk. It has to be a certain direct threat. 
 
As far as enforcing the Chemical Weapons Convention this is another area where legitimacy and law come into play because the convention is a legal test. If you sign the convention you’re able to enforce the convention and people acknowledge that the convention doesn’t contain anything that claims you can act aggressively or punish another state because they did not adhere to the convention. If this was part of the convention then I think there would be very few states who would have signed off to it. 
 
This is another important thing to keep aware of. 
 
The big issue with the humanitarian use of force – the responsibility to protect – this is a very important aspect of that. In the course where the humanitarian use of force is legal and this is in very few cases, it must be objectively clear that there is no practical alternative to the use of force in order to protect civilians – this is the only choice we have available – it’s the most effective choice. 
 
As you know the attacks that happened swiftly after the chemical attacks, whilst destroying the chemical weapons it seem very logical and practical, there’s been no evidence supplied by any of the allied states that this was the best way or that this was the only way. It was one thing but if you look at the situation more widely you will see that there are many many more effective and peaceful paths to take. So, this is another reason why humanitarian use of force doesn’t apply on the international scene. 
 
The death tolls are ambiguous at this time but we can say that the US has just admitted hundreds and hundreds of civilians have been killed by the airstrikes. It raises the questions as to how the UK can only have killed one when they’ve been conducting very much the same kind of attacks. 
 
Just that question alone we don’t even have to verify whether the attacks are legal. If we can ask that question very certainly whether or not there’s been civilian casualties that tells us already that that is not a clearly objective case of the responsibility to protect. 
 
When you look really into it there are standards in place. We already know that these are not approved by the Security Council and there are lobbies in the Security Council with regards to Syria and the use of chemical weapons mainly on the side of Russia and China. Many international actors have argued that this deadlock is a legitimate legal reason to use a limited but forceful punishment as the best way to address the issue. But again we get into the area of illegal but legitimate. If that becomes a functioning, customary form of legality, the … protections which have been in place since the inception of the Charter, which are the foundation of international law become absolutely useless if we can use legitimate but illegal as a standard. We have to admit that we’re mixing two very different areas. We’re mixing law and legitimacy. And legitimacy believe it or not exists outside of any form of verification. 
 
We know that a lot of actions by the UK are not comparable to the Syrian Asad regime but however they use the same justification – illegal but legitimate. So have countries who have committed atrocities, genocides.  
 
When there’s no way to verify this, no standard to compare it to we get into the area of morals mixing with law that’s why it may seem very bureaucratic and harsh but it’s very important not to set a terrible precedent for the future. 
 
And that’s not to say that we should do nothing and that it isn’t legitimate to take action but there are legal pathways.  
 
I just wanted to note that the chemical attacks and the strikes implies that it triggers the responsibility to protect. There is precedent set in the International Court of Justice as well as in the Human Rights Committee where they have put down case law that a state is responsible to provide the rights and ensure rights inside of its territory. If and only if they have effective control of that territory. So, if you have in some cases, have acted … it increases responsibility to protect. What it doesn’t increase is the legitimacy to use force. That exists in the realm of interactions between states, human rights exist separate to that.

 
The R2P provides us with two important contextual considerations. One in relation to refugees and the people on the ground. We have very underused tactics both for international pressure to act and for refugees. 
 
In terms of refugees humanitarian visas is a very important recourse. Humanitarian visas offer a very swift and very orderly and often safe transportation for most people to apply for asylum from the country they are already residing in. It also prevents exploitation – sex trafficking, human trafficking, slavery. If we are processing people in the state that we’re planning to settle and not putting it in the hands of rampant corruption and mafias. It follows that the logistics will be better. 
 
Because they’re not often used they tend to be neglected, because there’s not enough information about them out there. We don’t have enough precedent of people using them to have all the details clarified. This is one area where the UK can really lead the way on this. Another promising and limited option is sponsorship, private sponsorship where communities take on the pathways and the state issues the visa. This does not fulfil the state’s duty in a really complete way toward refugees but it has really worked in Canada, Australia, France, Italy and a number of organisations in the UK have proposed this. 
 
What we’re looking at are multi-conventional ways to approach this. One doesn’t stand alone but if you combine this with this and especially with family reunification and this bill. It is incredibly important …. 
 
Just on legal pathways to help Syrians within Syria. The UN General Assembly voted to establish the very long named International, Impartial and Independent Mechanism into Gross Violations committed in Syria since March 2011. We’re going to call it the triple IM/IIIM. The UK supported this movement and will be donating funds to this mechanism which is voluntarily state funded. It suffers from acute underfunding, the UK’s contribution is fairly marginal. The IIIM has made it further than any other mechanism in getting past the Security Council blockage. This can be very important in prosecuting these crimes so this needs all the support we can give it in order to get past this blockage. 
 
Finally, there was a previous Security Council resolution 377 – the Uniting for Peace Resolution . It allows the General Assembly to consider an issue when the Security Council fails to take appropriate measure. This mechanism exists.  
 
In general, as per the P5 it really needs to work on changing the veto power. This is difficult because the UN Security Council has veto power over the decisions on the UN Security Council’s veto power. So this is a really difficult conundrum that we feel that attacking this from the inside, from the legal pathways is the best way to move forward.