A. Introduction
This short article considers the two primary legal frameworks that can operate to control decisions by a State, in this case the UK, to deploy troops to conflict or post-conflict zones—British constitutional law and international law, and how they have both been thrown into sharp relief by the continuing debate about the possible adoption by the House of Commons of a non-statutory war powers resolution.
Historically the role of Parliament in such decisions has been more significant politically than legally, in that the ‘prerogative’ nature of the decision to go to war has meant that legally speaking it belongs to the Crown, which nowadays means the executive branch of government (in the UK the Cabinet, or often a small group within the Cabinet known as the ‘War Cabinet’, more pejoratively the ‘Sofa’ government under Prime Minister Blair).Footnote 1 Politically though, for the Government of the day, it is often important to have Parliament on its side, particularly if it has decided to prosecute a controversial war that may become unpopular over time, so that in Kosovo, Iraq and Afghanistan Parliament was significantly involved in debates over the war aims as well as the international morality and legality of the interventions, both during and often before the wars started. It is argued here that this dynamic, where formal constitutional legal constraints are few, but international legal constraints are applicable (in terms of rules governing both the use of force and the conduct of hostilities),Footnote 2 means it is international law that should play an increased role in helping to shape such decisions. However, as shall be seen, this role is played out in political fora and in non-judicial mechanisms of accountability and review rather than in the Courts.
The Government appeals to international law to garner support for, and bolster the legitimacy of, its military interventions, but in so doing it opens itself up to counter-arguments about the legal basis of the war. This article considers in general terms such Parliamentary debates and the role of international law within them. Furthermore, this greater Parliamentary involvement has culminated in current reform proposals that would in a sense formalize and constitutionalize the need for prior Parliamentary approval of decisions to deploy. As will be seen, however, the recent proposal for a resolution to be adopted by Parliament embodying this procedure is a weak affair, unlikely, if it were to be adopted, to radically change current practice, and unable to provide Parliament with more objective legal advice on the international legal basis of the operation, something that is strongly argued for here. In addition, the proposal will not lead, by itself, to the development of a right of review by the British Courts.
B. The Prerogative Power to Deploy Troops
AV Dicey defined prerogative powers as ‘historically and as a matter of actual fact nothing else than the residue of the discretionary or arbitrary authority, which, at any given time, is in the hands of the Crown’.Footnote 3 The presence and exercise of prerogative power has two serious consequences for the rule of law and democratic accountability. First ‘while Parliamentary approval is not generally needed before action is taken, Ministers [remain] responsible to Parliament for their policies and decisions’.Footnote 4 Second, the Courts have no power to review the decisions of the Crown on the disposition and use of the UK's armed forces.Footnote 5 Given that prerogative powers by-pass normal methods of democratic control, there is a need to re-evaluate the balance between the necessity of allowing the effective prosecution of war and the demands of democratic accountability in the modern era. There is certainly a strong view that the deployment of troops and the waging of war, or more generally ‘the exercise of the physical might of the modern state’ should be subject to greater democratic control.Footnote 6 It is argued in this article that a major factor in the increasing pressure for reform is greater political and public awareness and advocacy of international law.
The weaknesses of the British constitution on matters of deployment of troops have been exposed by recent conflicts. It is true that the Bill of Rights of 1689 asserted constitutional superiority over the armed forces when it declared that the ‘raising or keeping of a standing army within the Kingdom in time of peace, unless it be with the consent of Parliament’, was against the law. However, the purpose of this part of the Bill was to prevent the King establishing his own army. Parliamentary authority was asserted over the standing army, not over each deployment of troops. The Parliamentary power to withdraw authority for the maintenance of an army is not a realistic control in the modern age. Although regular legislation is required to renew Parliamentary authority, it is adopted as a matter of course.Footnote 7
The reality of the exercise of prerogative powers in the areas of foreign affairs and the disposition of armed forces is shown by the exchange in the House of Commons in 1982 when negotiations were taking place for the settlement of the Falklands conflict in the period between the Argentinian invasion and the arrival of the British task force to defend the islands. The leader of the Opposition, Neil Kinnock, claimed that ‘the House of Commons has the right to make judgment on this matter before any decision is taken by the Government that would enlarge the conflict’. In response, the Prime Minister, Margaret Thatcher, declared that ‘it is an inherent jurisdiction of the Government to negotiate and reach decisions. Afterwards the House of Commons can pass judgment on the Government’.Footnote 8
The method by which the lower house passes judgment on the Government can vary, either by unamendable procedural motions which may be voted upon, and occasionally by an amendable substantive vote; the choice being one for the political judgment of the Government and not one dictated by legal requirements. There were substantive votes in the Korean conflict, Suez and the Gulf Conflict of 1991; but not in the case of the Falklands or Kosovo.Footnote 9 The debates prior to the invasion of Iraq in 2003 did culminate in a substantive vote in the House of Commons on 18 March, two days before the invasion. On the other hand, there has been no vote in Parliament concerning the deployment of British troops in Afghanistan.Footnote 10
In summary, in the British political system as it relates to decisions to deploy troops overseas, the democratic deficit is so severe that we might question whether we have a system that is little different from that which surrounded the king in the 14th and 15th centuries. FW Maitland portrays the monarch of that time as ‘the ruler of the nation, the commander of its armies and its fleets’, advised not by parliament (which did exist in a very early form) but by the king's council, the members of which ‘can be dismissed by the king whenever he pleases; they are sworn to advise the king according to the best of their cunning and discretion’. ‘The function of the council … is to advise the king upon every exercise of the royal power’.Footnote 11 It would be easy to compare the modern Prime Minister and his ministerial colleagues in formal or informal War Cabinets to the King and his Council, but it is not necessarily as straightforward as that. Indeed, although the medieval King had untrammelled power on paper, there were increasing pressures from Parliament, from his subjects (soldiers and civilians), and from his treasury that meant that in political terms waging war was not as simple as might appear from the constitutional framework.Footnote 12 In modern times, there are similar pressures, and although the British constitutional legal framework is still limited, there is increasing pressure for reform—an issue that will be returned to.
Furthermore, in the era of globalization it is true to say that ‘national democratic politics cannot be understood without reference to international forces’,Footnote 13 no more so than in decisions to deploy combat troops to foreign lands. It must not be forgotten that Britain has since 1945 become part of a wider international institutional and legal order, which may affect its ability to wage war. In different areas of decision-making, sovereignty has been limited by European law, both of an economic nature from the EC (now the EU), and of a human rights kind from the Council of Europe. The question of whether these and other international legal frameworks and institutions have restricted the Government's prerogative powers in military matters is the issue to be considered next; first by looking at their impact in the House of Commons, and then before the Courts.
C. International Law on the Use of Force before the House of Commons
With British constitutional law providing little by way of legal limitation on the prerogative powers of the Government to deploy troops, the spotlight turns on international law as a means of restricting decisions of government. Methods of enforcement at the international level are limited, particularly when bearing in mind the fact that Britain possesses the power of veto in potentially the most effective executive organ dealing with matters of peace and security—the UN Security Council. Attention therefore turns to whether international law has any role in executive decision-making, or in key Parliamentary votes, at the national level. While the Courts have a limited role in this respect, relatively recent Parliamentary debates on Kosovo and Iraq have been dominated by discussions about the international legal bases of these military actions involving British troops.
One case involving the UK that was litigated before the International Court of Justice concerned events in the Corfu Channel in the immediate post-war period; a case brought by the UK against Albania in 1947 following the mining of British warships in the Channel a year earlier. The case shows the UK challenging the international legal rules governing the use of force by claiming that its minesweeping operation, taken in response to the loss of its ships, threatened neither the territorial integrity nor the political independence of Albania and therefore did not breach article 2(4) of the Charter. The Court dismissed the argument, but found for Britain on the issue of the destruction of the warships.Footnote 14 Though in effect found to be in breach of international law itself, both the Government and the House of Commons were only concerned with the task of recovering compensation from Albania, something that was finally achieved in 1996.Footnote 15
Though older forms of waging war (gunboat diplomacy, armed reprisals, punitive expeditions, humanitarian interventions …) were outlawed in the post-1945 era, Britain was still prepared to use a form of gun-boat diplomacy in the Corfu Channel. Furthermore, in 1956 it launched with France what was arguably a punitive expedition to secure the Suez Canal against Egyptian nationalization. The Government argued that it was lawful as a form of protection of nationals, against the advice of the Government's Law Officers, forcing Prime Minister Anthony Eden to declare ‘lawyers are always against us doing anything. For God's sake keep them out of it. This is a political affair’.Footnote 16 As the operation developed and the wider conspiracy (with Israel) revealed, there was increasing criticism of the Government's policy, and though it did narrowly survive votes in the House of Commons before the deployment of forces,Footnote 17 the mounting criticism (especially by the United States) of the intervention and its legality, contributed to the Government's decision to withdraw and accept a UN peacekeeping force.Footnote 18
While protection of nationals was an unconvincing justification for the Suez operation, humanitarian intervention to protect the Albanian population of Kosovo in 1999 was convincing enough, although the Government had to continually reassure the House of Commons that the bombing campaign was justified and above all was working. Interestingly the House of Commons Foreign Affairs Select Committee reported a year after the bombing campaign that it viewed the war as illegal though morally justified,Footnote 19 when at the time of the bombing the vast majority of the House of Commons were convinced by the argument that humanitarian intervention in support of Security Council resolutions was both morally and legally justified, resulting in a lack of political will even to vote on procedural motions in the House. There was plenty of debate in Parliament and in the country at large, but no opportunity was fashioned to reflect this in a formal vote in the House of Commons in support of the bombing campaign.Footnote 20
Thus in the modern era the UK has a track record of relying on controversial (often pre-UN Charter) legal justifications for its military interventions. While the UN Charter prohibited the threat or use of force, it did allow for States to defend themselves from armed attack, as well as take military enforcement action under UN Security Council authority given under Chapter VII.Footnote 21 The UK relied on more solid legal grounds of self-defence in taking military action against Argentina in 1982 to remove it from the Falklands. There was no question of any significant criticism of the (often brutal) military campaign in Parliament or in the country, nor more profoundly the British right to the islands. The Argentinian invasion deepened the House of Commons' will not only to defend the islands, but also not to negotiate on the issue of its sovereignty. Only the sinking of the Argentinian warship the General Belgrano outside the exclusion zone proved to be a thorny issue that undermined Parliament's conviction that this was not only a war conducted in accordance with international law, but was above all a just war.Footnote 22 No vote in the House of Commons was taken on the issue of the prosecution of the war despite heavy losses, and none was really necessary given bipartisan support. In 1985, after lingering disputes about the necessity and legality of the sinking of the Belgrano, the Government won a vote in Parliament endorsing its decision.Footnote 23
The justification of self-defence and the need to eliminate a substantial terrorist threat also proved sufficient for the Government to carry the House of Commons without a vote being forced in the war in Afghanistan launched in October 2001 in response to the attacks on the United States of 9 September 2001 (‘9/11’). The claim of self-defence was not as clear cut as in the case of the Falklands, being both a collective one—to act alongside the United States—and one directed at a state where the terrorist organization responsible for the attack was based. However, the numerous debates on 9/11 and Afghanistan in the House of Commons have not revealed any significant dissent and there have been no concerted challenges or votes on the matter. In 2001 the Prime Minister, Tony Blair, spoke about defending civilised beliefs against the terrorist threat and acting in a just cause.Footnote 24 The continuing presence of British troops is consistently linked back to the attacks of 9/11—to prevent Afghanistan from becoming once again a source of terrorist attacks—even though the legal basis for the presence of British troops has (largely) changed from that of self-defence to Chapter VII authority from the Security Council, combined with the consent of the Government of Afghanistan.Footnote 25
Chapter VII authority has proved sufficient in the past to carry the Government's decisions to go to war both in Korea in 1950 and the Gulf in 1991, though in both cases decisions to deploy troops to aid South Korea and Kuwait alongside the United States were already made on the basis of collective self-defence. Thus in Korea troops had already been sent when a substantive vote was held;Footnote 26 whereas in the case of Kuwait in 1990–1991, the long interval between the invasion by Iraq and the use of force to liberate Kuwait, meant that the Opposition in the House of Commons had more of a chance to test the government on its strategy, including the legal basis of the operation, and in part succeeded in persuading the Government to help secure a Security Council resolution (Resolution 678 of November 1990), at least as an ‘additional’ legal basis to that of collective self-defence. The Government readily won a procedural vote in September 1990 and another immediately before the hostilities on 15 January 1991, though a substantive vote was not held until four days after hostilities had commenced on 17 January.Footnote 27
Though the UK helped shape the development of coalitions of the willing acting under Security Council authority, it stretched that loose system beyond breaking point in 2003 when it joined the United States in invading Iraq because of the failure of Iraq to disarm in accordance with Security Council Resolution 687 adopted following the conflict in 1991. The inadequacies of Resolution 1441 agreed in November 2002, and the frightening prospect of supporting an American doctrine of pre-emptive defence, led to much greater pressure on the Government in the House of Commons in the lead up to the war, and many attempts at accountability for the decision to invade thereafter, culminating in the announcement of the current inquiry into Iraq made in June 2009.Footnote 28 That inquiry has revealed that the legal advice given to the government was by no means as unequivocal as was made public at the time.Footnote 29 Nevertheless, in March 2003 a substantive vote in the House of Commons two days before the invasion was won relatively easily by the Government,Footnote 30 the House being persuaded by the release of a sanitised version of the Attorney General's advice that there was a legal basis for the invasion in Resolution 678 of 1990, and by the Government's re-assertions that there was a real threat from Iraq.Footnote 31 In reality though the use of force was taken without UN authority and without any real threat being present, making it a violation of the rules prohibiting the use of force in the UN Charter and in customary international law.Footnote 32
International law plays a significant role in Parliamentary debates on wars and post-conflict situations, but the actual decision to deploy troops is, despite the debates and occasional votes held in the House of Commons, a governmental issue, and Parliament has not been prepared to challenge it even when the legal basis of the war is clearly suspect. Though the Attorney General's advice was strengthened for Parliament in the case of Iraq, the House of Commons seemed to accept it, paying no regard to the considerable criticism it received from academics and elsewhere (shown in the fuller version of the Attorney General's advice released in 2005, and the evidence given to the Iraq Inquiry in January 2010). This unwillingness to challenge decisions to deploy troops is also found in the Courts, where, for example, CND's challenge to the legality of the Iraq war was met with incredulity by the Court of Appeal, Lord Justice Brown declaring that is was most unlikely that the Government made a mistake on the law since ‘it has access to the best advice, not only from law officers but also from a number of specialists in the field’.Footnote 33
D. International Law on the Use of Force Before UK Courts
The dismissal of CND's challenge to the legality of the decision to go to war against Iraq is typical of the attitude of British Courts towards the prerogative power to deploy troops. Attempts have been made to indirectly impugn the decision to go to war; for example Margaret Jones defended her involvement in criminally damaging an RAF base on 13 March 2003 on the grounds that she was trying to prevent a greater crime being committed—the crime of aggression against Iraq. The House of Lords agreed that aggression was a crime under international law but stated that it was not part of domestic criminal law; this was bolstered by Lord Bingham stating that the ‘courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of armed services’.Footnote 34
While the courts have accepted that the Human Rights Act of 1998 is applicable to civilians held in detention centres in Iraq,Footnote 35 and in certain circumstances to British soldiers in that country,Footnote 36 they have been unwilling to consider arguments under the Act that could amount to questioning the legality of the conflict. When Rose Gentle, the mother of a soldier killed by a roadside bomb in Iraq, claimed that part of the British Government's obligations under the right to life was to hold an inquiry into the wider circumstances surrounding her son's death, the Law Lords declined her request; Lord Bingham stating that article 2 of the European Convention had never been ‘held to apply to the process of deciding upon the lawfulness of resort to arms’ even though decisions to go to war resulted in loss of life. He did feel, however, it necessary to justify his decision further saying that ‘the lawfulness of military action has no bearing on the risk of fatalities’, citing the effectiveness (from Japan's perspective) of its attack on Pearl Harbour in December 1941—illegal but minimizing Japanese casualties. More importantly he stated that Fusilier Gentle had been killed after ‘Security Council Resolution 1546 had legitimated British military action in Iraq, so that such action was not by then unlawful even it had earlier been so’. Baroness Hale was heavily critical of the Attorney General's advice on the legality of the invasion of Iraq in 2003, and expressed great sympathy with the mothers of dead soldiers, but ultimately decided that ‘the lawfulness of war is an issue between states, not between individuals or between individuals and the State’.Footnote 37
However, with the prerogative in other areas increasingly coming within the purview of the Courts, judicial scrutiny of decisions to go to war may be closer than is commonly thought. Leading constitutional lawyers have written that ‘the need for military effectiveness in the defence of the realm does not mean … that the law of judicial review has no role to play in this as in other areas of governmental activity’.Footnote 38 Though the recent transformation of the Appellate Committee of the House of Lords into the Supreme Court in October 2009 is in many ways simply a change of name, it may embolden the Court to take on the supreme challenge for a constitutional court and take an opportunity to review a controversial future decision to go to war. Fear of this eventuality may partly explain the Labour Government's preference for a non-statutory war powers resolution reviewed in the next section.
E. Reform Debate
After the invasion of Iraq in 2003 the greater pressure within the UK is not for review of decisions to deploy troops by the Courts, but for these decisions, to paraphrase the House of Commons Select Committee on Public Administration, to be more profoundly anchored in the consent of Parliament.Footnote 39 The current convention that Parliament be consulted on issues of troop deployment, it is argued, is simply inadequate when lives are at stake.Footnote 40 Since Iraq there have been a number of Draft Bills suggested and put before Parliament, which, if any had been adopted, would have produced binding legislation requiring that troops should only be deployed to armed conflicts if their participation had been approved by Parliament, and, importantly, that the Government, in seeking such approval, must present reasons and legal authority.Footnote 41
In discussing the issue, the House of Lords Select Committee on the Constitution stated in 2006 that in the ‘absence of legal restraint on the deployment power under domestic law, the rules of international law on the use of force take on an enhanced significance as the only apparent limitation on the prerogative’.Footnote 42 This article has shown though that while international law has an influence on debates, it is not sufficiently determinate in the final decision to go to war. Serious doubts about the legality of the Suez operation in 1956 or the invasion of Iraq in 2003 did not stop the Government making its decisions nor did it provoke Parliament into challenging those decisions by voting against them. If clear international legal advice had been put before Parliament, it would have, arguably, been more difficult for Parliament to go along with the decision; or it might, in the case of Kosovo, for instance, have decided that the moral arguments outweighed the legal.
Unfortunately the watered down version of the reform proposal that was due to be laid before Parliament for approval before the general election in May 2010,Footnote 43 was in the form of a non-binding war powers resolution,Footnote 44 giving the Prime Minister maximum flexibility as to the timing of seeking approval from the House of Commons for a Government decision authorising the use of force by British armed forces outside the UK. As with the invasion of Iraq in 2003, this may mean that the timing of the vote would be such as to ensure that it is too late for the House of Commons to realistically say no. In addition, under the draft resolution, there would have been no need for the Government to seek retrospective approval when the operation is urgent or secret. Furthermore, the proposed resolution would not have required that the Attorney General make his full advice available to Parliament, though legal reasons would normally be given. This in reality represented little change from the current constitutional position and had the added advantage, from the Government's point of view, of being in a non-justiciable form thereby making sure that the Courts are not enticed into the debate about the legality of decisions to go to war.
Though concerning the most highly politically sensitive area of a State's foreign relations, international law on the use of force has increasingly penetrated the UK's constitutional structures and in so doing has compensated to a certain extent for the lack of domestic constitutional law on the matter. However, the penetration has occurred not in the Courts but in political fora where governmental control of the agenda and of the information (crucially legal advice) given to the House of Commons (and thereby the country) has arguably prevented MPs from taking a more principled stance on some of the more controversial decisions to go to war. Unfortunately, the proposed war powers resolution that was due be to be laid before Parliament in 2009–10 was unlikely to have changed this, lacking as it did a requirement for clear, full and balanced legal advice to be put before Parliament before a vote is taken on the deployment of troops. Fortunately, the Government ran out of Parliamentary time to put the resolution before Parliament prior to its dissolution on 12 April 2010.Footnote 45 It is only to be hoped that the new Coalition Government formed after the general election on 6 May 2010 will reconsider the form and content of such an important constitutional reform.Footnote 46
