THE LEGAL CASE FOR BRITISH MILITARY ACTION IN IRAQ AND SYRIA [T]he resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al’Qaeda and the 44 Taliban in Afghanistan [emphasis added]. The Syrian regime has claimed both a willingness and ability to challenge IS. On 25 August 2014, for example, Syrian Foreign Minister Walid al Moallem told Western news agencies that, “Syria is 45 ready to cooperate and coordinate on the regional and international level in the war on terror”. The US-led airstrikes, however, have not been co-ordinated with the Syrian regime.46 Similarly, the UK is highly unlikely to solicit consent from President Assad for political reasons, given that the UK Foreign Secretary Philip Hammond stated on 16 July 2014 that President Assad has “zero legitimacy” and should not remain in power.47 For the use of force to be legal, the UK would need to demonstrate that, despite claims to the contrary, President Assad’s regime remains unwilling and/or unable to effectively challenge IS within its territory. This is credible given President Assad’s long-standing permissive attitude towards IS and allegations by Western intelligence agencies that the regime has been buying black 48 market oil from IS militants. It is also consistent with: the stated position of both the British government, which considers President Assad a “source of terrorism in Syria”;49 and, the US government, which believes that he “created the conditions that allowed ISIL [IS] and other 50 terrorist groups to gain ground and terrorize [sic.] and slaughter the Syrian population”. The existence of intelligence-led military and strategic assessments by those involved in intervention that the Syrian regime’s stated willingness is actually not in good faith would permit the use of force in collective self-defence to degrade IS, subject to the criteria of necessity and proportionality. Additionally, immediate Syrian state responses to the US airstrikes on 22 September 2014 may legally constitute consent. In the aftermath of the first airstrikes, for example, Syrian state television reported statements from the foreign ministry, including one which appears to confer consent: “Syria supports any international effort that aims at fighting 51 terrorism, whatever the terrorist group – IS, al-Nusra Front or any other one”. 44 Bethlehem, D., ‘Principles Relevant to the Scope of a State’s Right of Self-defense against an Imminent or Actual Armed Attack by Nonstate Actors’, The American Journal of International Law (2012), vol, 160:000, available at: www.un.org/law/.../Bethlehem%20-%20Self-Defense%20Article.pdf, p. 3. 45 ‘White House won't commit to asking Congress for Syria strike’, The Hill, 25 August 2014, available at: http://thehill.com/policy/defense/215905-white- house-wont-commit-to-asking-congress-for-syria-strike. 46 ‘TRANSCRIPT: Hagel testifies to the Senate Armed Services Committee on the Islamic State’, The Washington Post, 16 September 2014, available at: www.washingtonpost.com/world/national-security/transcript-hagel-testifies-to-the-senate-armed-services-committee-on-the-islamic- state/2014/09/16/a4909e26-3dab-11e4-b0ea-8141703bbf6f_story.html. 47 ‘Assad inauguration has no legitimacy, says Foreign Secretary’, Foreign & Commonwealth Office Press Release, 16 July 2014, available at: www.gov.uk/government/news/assad-inauguration-has-no-legitimacy-says-foreign-secretary. 48 ‘Syria’s Assad accused of boosting al-Qaeda with secret oil deals’, The Telegraph, 20 January 2014, available at: www.telegraph.co.uk/news/worldnews/middleeast/syria/10585391/Syrias-Assad-accused-of-boosting-al-Qaeda-with-secret-oil-deals.html. 49 ‘Assad inauguration has no legitimacy, says Foreign Secretary’, Foreign & Commonwealth Office Press Release, 16 July 2014, available at: www.gov.uk/government/news/assad-inauguration-has-no-legitimacy-says-foreign-secretary. 50 ‘Assad inauguration has no legitimacy, says Foreign Secretary’, Foreign & Commonwealth Office Press Release, 16 July 2014, available at: www.gov.uk/government/news/assad-inauguration-has-no-legitimacy-says-foreign-secretary. 51 See the BBC newsfeed at 10:38: ‘US begins air strikes against Islamic State in Syria’, BBC News, 23 September 2014, available at: www.bbc.co.uk/news/world-middle-east-29321236. 8