An act of war - but what response?
have heightened the desire for further military action against Islamic State though one article in The Guardian states that, whilst Islamic State's actions may be an act of war, retaliation might be unlawful because IS is not actually a State in international law - The Guardian 16th November. Such an argument that ought not to withstand serious analysis since it would provide the perfect loophole for murderous "non State" groups all over the planet. I believe that a complete refutation of such an argument is available and is set out in a paper by Sir Daniel Bethlehem QC (Legal Adviser to the Foreign and Commonwealth Office May 2006 to May 2011) - Principles relevant to the scope of a State's right of self-defence against an imminent or actual armed attack by non-State actors
This article concludes that - "Armed action in self-defence may be directed against those actively planning, threatening, or perpetuating armed attacks. It may also be directed against those in respect of whom there is a strong, reasonable, and objective basis for concluding that they are taking part in those attacks through the provision of material support essential to the attacks." Bethlehem also argues that the word "imminent" has to be assessed by all the relevant circumstances. The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent.
Of course, one would expect stable States to take action against those seeking to launch terrorism from within the State's territory. In the present circumstances in Syria and elsewhere that may not be realistically possible but this should not render potential victim States impotent to act.
Fast-tracking investigatory powers:
Extensive terrorism law and general criminal law:
The UK has extensive Terrorism Legislation and this is kept under review by the Independent Reviewer (Mr David Anderson QC). These powers are strong but there are continual calls for additional or stronger powers - see Jack of Kent blog 15th November. Terrorism offences are in addition to our extensive criminal law.
The UK government has Royal Prerogative powers available to it. For example, it is clear enough that the Armed Forces may be deployed to maintain the peace in support of the Police. The Crown also has power to requisition certain ships and this was done in 1982 in connection with the military campaign to recover the Falkland Islands.
The memorandum also claims that - "it is likely that the courts would be willing to recognise a wide range of necessary responses by the Executive to an emergency as authorised under the prerogative in the absence of a clear statutory basis."
The Civil Contingencies Act 2004 (CCA) could be invoked in the event of an emergency occurring in the United Kingdom - see previous post of 14th April 2011. Part 2 of the CCA deals with "Emergency Powers" and the term "emergency" is defined in section 19. A power to make emergency regulations is conferred by section 20 but this power is subject to certain conditions - section 21 . Regulations could be exceptionally extensive in scope - (section 22) - and permit actions such as the requisition or confiscation of property (with or without compensation); control of movement and transport; deployment of the armed forces etc. Certain limitations apply to the powers which can be granted - section 23. Further sections deal with the appointment of Regional and Emergency Coordinators and for Parliamentary scrutiny of any regulations (sections 27 and 28). Basically, emergency regulations last for 30 days from the day on which they are made but further regulations can be made.