Saturday 31 August 2013

House of Commons debate on Syria ~ A glance at some of the legal background

The House of Commons debate on Syria may be seen via the Parliament website.   The debate was notable in that the House of Commons voted against a government motion (HERE) which contained the possibility of a strong humanitarian response from the international community including, if necessary, military action that is legal, proportionate and focused on saving lives by preventing and deterring further use of Syria’s chemical weapons.  The debate concluded with this exchange:

Edward Miliband: On a point of order, Mr Speaker. There having been no motion passed by this House tonight, will the Prime Minister confirm to the House that, given the will of the House that has been expressed tonight, he will not use the royal prerogative to order the UK to be part of military action before there has been another vote in the House of Commons?
Mr Speaker: That is of course not a matter for the Chair, but the Prime Minister has heard the right hon. Gentleman’s point of order, and he is welcome to respond.
The Prime Minister: Further to that point of order, Mr Speaker. I can give that assurance. Let me say that the House has not voted for either motion tonight. I strongly believe in the need for a tough response to the use of chemical weapons, but I also believe in respecting the will of this House of Commons. It is very clear tonight that, while the House has not passed a motion, the British Parliament, reflecting the views of the British people, does not want to see British military action. I get that, and the Government will act accordingly.
Mr Speaker: I am grateful to the Prime Minister for that response.

The law, by means of so-called Royal Prerogative powers, gives the executive immense power in a number of key areas of government: particularly, defence and foreign affairs.  The Royal Prerogative was examined in a House of Commons Library Note of 30th December 2009.  An earlier report was The Governance of Britain (July 2007) and also see the the report of the Public Administration Select Committee (4th March 2004) - Taming the Prerogative: Strengthening Ministerial Accountability to Parliament

The Select Committee wished to see greater parliamentary control over all the executive powers enjoyed by Ministers under the royal prerogative.  This would have included full parliamentary scrutiny of decisions on armed conflict.  At the time of the Select Committee's report, the events of the 2003 Iraq War were highly prominent and controversy continues to rage to this day.  The Chilcot Committee has not yet reported.

Interestingly, the government chose to put its case for Syria to the House of Commons and this has prompted Joshua Rozenberg to ask whether there is a new constitutional convention to the effect that the Commons will usually be consulted - Syria Intervention: is there a new constitutional convention - Guardian 2nd September. 

Another interesting feature about the House of Commons debate is that the government published its view of the the legal position relating to intervention in Syria - HERE.  The government argued that if authority under Chapter VII of the UN Charter was not forthcoming, the UK could act under the 'doctrine of humanitarian intervention'  (discussed HERE).   On this difficult and controversial matter see the article 'The Dilemma of Humanitarian Intervention.'   Global Policy Forum has published an interesting piece - 'Humanitarian Intervention?'  There are arguments that the UK either could not act on the basis of humanitarian intervention or, if it could do so, the necessary conditions have not been met - The Guardian 29th August

Throughout the present situation, the British government has argued that any military objectives were to be focussed solely on the chemical weapon capability of the Syrian government.  However, in practical terms, it was particularly difficult to see how military action could be confined in that way.  Furthermore, the responses of other States to British military action are difficult, and perhaps impossible, to forecast with any certainty.  The future remains unclear and much will depend on the eventual report from Chemical Weapons Inspectors who have investigated the situation in Syria - (OPCW - UN Investigation Team returns to The Hague from Syria).  


a)   Watching the Law - Syria - Chemical Weapons

b)   The idea of 'humanitarian intervention' has a long history and certainly precedes in time the 'responsibility  to protect' but international law is not clear on the matter.   See Wikipedia HERE. and the article by Joshua Rozenberg in The Guardian 28th August - Syria intervention: it may not be wise, but using force may be lawful

c)   It is the UN Charter which creates the Security Council and grants powers to the Council (Ch. 5).  The UN Charter has Chapters addressing the Pacific Settlement of Disputes (Ch. 6) and Action with respect to threats to the peace, breaches of the peace and acts of aggression. (Ch. 7).   

Since UN Security Council Resolution 1674 (2006) a responsibility to protect (R2P) has been developing.  The developing principles of R2P are based on the idea that sovereignty is not a right, but a responsibility. R2P focuses on preventing and halting four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing.

The Responsibility to Protect has three "pillars"

i)     A state has a responsibility to protect its population from mass atrocities,
(ii)  The international community has a responsibility to assist the state if it is unable to protect its population on its own

(iii)  If the state fails to protect its citizens from mass atrocities and peaceful measures have failed, the international community has the responsibility to intervene through coercive measures such as economic sanctions. Military intervention is considered the last resort.

Resolution 1674 noted - "that the deliberate targeting of civilians and other protected persons, and the commission of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict, may constitute a threat to international peace and security, and, reaffirms in this regard its readiness to consider such situations and, where necessary, to adopt appropriate steps; ..."

Resolution 1674 cannot be read as if the Security Council opted to handover its responsibilities under the Charter to those States which choose to act as policemen.  Res. 1674 was preceded by the World Summit Outcome Document of 2005 and paragraphs 138 and 139 are clear that action against States has to be coordinated via the UN Security Council.  Res. 1674 reaffirms the provisions of paragraphs 138 and 139 of the outcome document.

d)   For further material:

i)   Responsibility to Protect

ii)  Responsibility to Protect

iii) Article by Eve Massingham in International Review of the Red Cross Vol. 91 No. 876 December 2009 - Military Intervention for Humanitarian purposes

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