Attacking Syria: War Crime And Aggression

Supremacy of Parliament in the UK means that Acts adopted by it apply to everybody including Parliament itself.

WAR CRIMES

In 1957 Parliament promulgated the Geneva Conventions Act incorporating the Four Geneva Conventions of 1949 into domestic law. In 1995 the Geneva Conventions (Amendment) Act was adopted incorporating the 1977 Additional Protocols to the Genevan Conventions in UK Law.

Section 1 of the Geneva Conventions Act 1957 (as amended) states:

“1. Grave breaches of scheduled conventions.

(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions, the first protocol or the third protocol shall be guilty of an offence.

Paragraph 3 of Article 85 of Protocol I reads as:

  1. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:

……

(c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2(a)(iii);”

In 2001 Parliament adopted the International Criminal Court Act 2001 (ICCA 2001) which encoded the customary international law of war crimes, crimes against humanity and genocide crime into UK Law.

Article 8 of Schedule 8 of the ICCA 2001 reads as:

“2 For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

……

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

Any attack on a site potentially containing WMD would inevitably lead to widespread damage to people and the natural environment through the dispersal of material from the destroyed site.

It would be easy to prove in a court of law that the UK Government, which declared that it attacked chemical weapons production and storage facilities in the Syrian Arab Republic, committed a war crime contrary to para (4c) of Article 85 Protocol I, and Article 8 Schedule 8 of the ICCA 2001.

AGGRESSION

The international political order is based on respect for sovereignty of the state and the promotion of peace and security. The United Nations Charter embodies these principles under the umbrella of International Law in whose development the UK has played a significant role.

International Law recognizes only two exceptions to a secure sovereignty of a state – one being to act in self defence against a real, and not an alleged, attack, and the second when the UN Security Council decides that there is a real threat to peace and security that requires military action, which military action should be done under strict control by the UN as described by the UN Charter and for the specific purpose of eliminating the threat to peace and security in the world. There is nothing in International Law that allows any other action however reprehensible the action of the sovereign state may be.

Aggression as the International Court of Justice (ICJ) has declared is any act in breach of Article 2(4) of the UN Charter and classified it as breach of jus cogens norms of customary international law from which there is no derogation.  Aggression constituted the main crime in the Nuremberg Tribunal. Its definition has been unanimously adopted by the UN General Assembly in Resolution (3314) and incorporated into the Statute of the International Criminal Court. Its criminality in the UK has been established by Parliament in the Human Rights Act 1998 (Article 7.2)

Thus whether the Syrian Arab Republic (SAR) has chemical weapons as the UK insists, despite the OPCW declaring that the SAR to be free of them, or the SAR does not indeed have them, the attack of the UK on SAR on 14 April 2018 is an act of aggression under both International Law and domestic law.

It seems that in the midst of the political waffle we have lost track of the legality of war.

Parliament could not approve an attack on SAR whatever the Government’s argument is. If Parliament were to vote for military action against the SAR with no right of self-defence being established by the UK Government, then it would commit both war crime and the crime of aggression just as it did in 2003 when it voted to invade Iraq.

 

Abdul-Haq Al-Ani (Dr)

Barrister
London

16 April 2018

 

 

 

 

 

 

 

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