Wednesday, 18 April 2018

In the face of Barbarism (2)

The previous post - In the face of Barbarism (1) - looked at the use of chemical weapons in Syria and the recent air strikes by the USA, UK and France.  The moral position is, to my mind, beyond doubt.  Action was needed to try to degrade the chemical weapon capability available to the Syrian government and, for the future, greater action is needed to resume the Geneva peace-process which was discontinued in December 2017.

The clarity of the moral position is not matched by international law.  The UN Charter requires collective action to deal with threats to peace rather than, as in the past, States deciding to "do their own thing" but a void exists in cases where a permanent member of the UN Security Council will not support proposed action.  Attempts to fill that void have led to States using alternative justifications for the use of force such as "humanitarian intervention."   This has been used by British governments on a number of occasions (e.g. Kosovo) but such alternative arguments are far from universally accepted.  This post looks at this further and then looks at the question of the role of Parliament regarding military action abroad by British Forces. 

International Law on the use of force:

The post World War 2 position:

A starting point has to be the position under the United Nations Charter.

Article 1 - "The Purposes of the United Nations are:   To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ..."

Article 2(4) - "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Chapter VII of the Charter aims to bring "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression" under the control of the UN Security Council.

Hence, Article 39 states - "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

Article 41 permits UNSC to take measures NOT involving the use of force.

Article 42 then states -"Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations." 

Article 51 enables States to act in self-defence - "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Permanent members and the veto:

Article 23 provides that The Republic of China, France, the Union of Soviet Socialist Republics (now Russia), the United Kingdom of Great Britain and Northern Ireland, and the United States of America are the permanent members of the Security Council.  A further 10 non-permanent members are elected.

Under Article 27, Decisions of the Security Council ... shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; ...."  Hence, any one Permanent Member is able to prevent the making of a decision.  This is usually referred to a the "veto" and, in relation to Syria, has been exercised by Russia on several occasions.

In 2013, France proposed a system by which the permanent members would agree to self-regulation of the veto.  Details are HERE.   Such self-regulation would apply where the Council was considering genocide, crimes against humanity and large-scale war crimes.  The proposal has great merit but, to date, has not been implemented.

Expert opinion:

a)  Professor Ben Saul concluded that earlier air strikes on Syria, in response to chemical weapons attacks on civilians, were politically well-received but contrary to international law – raising difficult questions about the adequacy of the law to prevent atrocities, and how to pursue meaningful reform.  Professor Saul's view of 26th April 2017 is here and highlights the inadequacy of the existing legal position.

"The status quo – of maintaining that the UN Charter rules work except in hard cases – looks increasingly untenable. International law loses legitimacy if it is repeatedly powerless to stop atrocities. Law-breakers who save lives may paradoxically grow in legitimacy, at the cost of the international rule of law."

Professor Saul went on to propose a modest option for reform so that unilateral action would be permitted in response to a narrowly defined category of threat such as chemical (or biological) weapons, rather than to open the door to the wider, more ambiguous, riskier category of humanitarian intervention.  He argued that it is always preferable to strengthen collective responses.

"Even if it often seems to be a lost cause, it is essential to doggedly pursue Security Council reform. Doing so is the only way to maintain confidence in the law’s legitimacy and thereby to ensure respect for it."

b)  Professor Dapo Akande - Professor of Public International Law Oxford - prepared an opinion at the request of Mr Tom Watson MP (Deputy Labour of the Labour Party).  This opinion - dated 16th April 2018 - is here.   Professor Akande argued that -" .... the position taken by the government is significantly flawed. The military action taken was not in accordance with the United Nations Charter and international law."  He bases that view on Article 2(4) of the UN Charter.

The British government based its action on "humanitarian intervention" as is stated in the legal position statement of the government (14th April) and in the Statement of the Prime Minister to Parliament on 16th April.  Professor Akande's opinion is clear that international law, as it is, does not recognise that humanitarian intervention permits use of force and, further, the Responsibility to Protect doctrine does not alter that position.

c)  A further view is offered by Charles J Dunlap - former Deputy Judge Advocate-General of the US Air Force - see HERE.  Dunlap notes that international law is not static.  He asks whether we are to be left without any recourse allowing the use of force to prevent even the most egregious breaches of international norms such as the prohibition on chemical weapons.

"Let’s recall that the Nuremberg Tribunal concluded that the “law is not static, but by continual adaptation follows the needs of a changing world.”   Is there not a need in today’s “changing world” to demonstrate that international law means something, and that there are serious consequences when it is violated in such a terrible way?"

Nevertheless, as I understand his article, Dunlap does not go further than to suggest that a new norm permitting military action is probably emerging.  He says - "This is particularity so given that we live in a world where the hoped-for mechanism to address these situations – the UN Security Council – is frozen into impotence by the ability of its members (and, notably, Russia in this instance) to veto any action."

d)  Another view is at Spinning Hugo - Legality, Justice and Syria and also Legality, Justice and Syria Part 2

The dilemma:

International Law is therefore against the use of military force apart from (i) when authorised by the UNSC or (ii) in self-defence.  Neither of those justifications can be said to apply to the action in Syria.  Nevertheless, the action taken by the USA, UK and France has met with with considerable international support such as that from NATO on 14th April and, when asked by Russia to condemn the action, the UNSC did not do so - UN News 14th April.  Such general approval does not alter the strict legal position under the UN Charter.

Here then is the dilemma.  International law on the use of force as set out in the UN Charter is preventing action regarding the use of chemical weapons in Syria.  The Security Council could authorise force but that will not happen because of the Russian veto.

Also see Syria strike was not justified by existing law - Nick Miller 28th April 2018 where Lieutenant Colonel Kris van der Meij (as NATO lawyer) rejects humanitarian intervention as a legal a basis for the military action.

The military action - the British justification - Humanitarian Intervention:

In the Statement of the Prime Minister to Parliament on 16th April, Mrs May stated that the action was not about intervening in a civil war and it was not about regime change. It was about a limited, targeted and effective strike that sought to alleviate the humanitarian suffering of the Syrian people by degrading the Syrian Regime’s chemical weapons capability and deterring their use.

The government applied 3 tests -

First, there must be convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief.

Second, it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved.

And third, the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim.

The UK government claimed that the action was lawful under international law on this humanitarian basis.  The full reasoning for that claim may be in legal advice received by the government but any advice has not been published.  An influential article by Professor Christopher Greenwood QC considers, in considerable detail, the case in favour of humanitarian intervention - Humanitarian Intervention: the case of Kosovo

Nevertheless, persuasive as the government's position is, the point remains that force is only permitted in accordance with the UN Charter and no justification based on "humanitarian intervention" exists in the Charter.

Parliament and the Executive:

On 16th April Parliament returned from its Easter recess and debated the use of air power in Syria on the night of 13th/14th April.  See the Prime Minister's Statement to the House of Commons and the Debate on Syria at Hansard Online.  In the evening of 16th April there was an Emergency Debate granted by the Speaker at the instigation of Alison McGovern MP (Wirral South).

At the instigation of the Leader of the Opposition (Mr Jeremy Corbyn MP), a further Emergency Debate was granted.  Mr Corbyn proposed that the House debate Parliament’s rights in relation to the approval of military action by British forces overseas.  The debate was fixed for 17th April 2017 and may be seen at Hansard Online.

These debates brought to the forefront the somewhat ill-defined convention that Parliament should be consulted about military action.  The question of whether there should  be "war powers" legislation to replace the prerogative was also touched upon in the debates.

Britain at War - A history of Parliamentary Votes and Debate

The Convention:

"Conventions" in the sense being used here, relate to how strict rules of law are applied.  For example, in law, the Queen appoints the Prime Minister.  By convention, Her Majesty will appoint the individual best able to command a majority in the House of Commons.

The disposition of the Armed Forces of the Crown is also a prerogative power exercisable by Ministers who are accountable to Parliament  - (particularly, the House of Commons). But should Parliament be involved in the exercise of that power?  Since 2003, a practice has developed of involving the House of Commons and, in 2011, the Government acknowledged the existence of a convention.

The Cabinet Manual - see para 5.38 - "In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate."

(I believe this to be a terse statement of the convention.  The word "troops" appears to cover all elements of the Armed Forces).

See Hansard 10th March 2011 (Col 1066) where the then Leader of the House of Commons (Sir George Young MP) said -"

"A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter. We propose to observe that convention except when there is an emergency and such action would not be appropriate. As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed."

On 18th April 2016, a Ministerial Statement set out the government's view of the convention.

“In 2011, the Government acknowledged that a Convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that Convention except where there was an emergency and such action would not be appropriate.

The Prime Minister repeated this commitment in relation to Libya in Parliament on 16 March 2016. The Convention relates to conflict decisions rather than routine deployments of the UK Armed Forces around the world. The exception to the Convention is important to ensure that this and future Governments can use their judgement about how best to protect the security and interests of the UK.

In observing the Convention, we must ensure that the ability of our Armed Forces to act quickly and decisively, and to maintain the security of their operations, is not compromised."

 The 17th April debate:

This was an emergency debate at the instigation of the Leader of the Opposition - see Hansard Online.  The motion was - "That this House has considered Parliament’s rights in relation to the approval of military action by British Forces overseas."

The wording here has a strange appearance.  The Guardian 17th April explains that a vote against the motion would indicate that members did not believe that Parliament had been able to fully consider the matter.  In the event, the motion was passed by 317 votes to 256 indicating the the House was content that its rights had been respected.

The convention to hold a debate in the House of Commons appears to remain basically intact.  Essentially, there would be a prior debate provided the situation under consideration permitted it.  The government retains freedom to act under the prerogative and will not hold a debate in advance when 'emergency' action is required.  The risks of revealing intelligence or strategy were heavily emphasised by the Prime Minister and this will dictate against prior debate when interventions such as Syria 13th/14th April are under consideration.  The precise involvement of Parliament and its timing will therefore depend on the exact situation in question and will have to be managed on a case-by-case basis.

As for a "War Powers Act" it was made crystal clear that the present government does not favour it.  Following the debate of 17th April, the idea is probably dead in the water for at least the duration of this Parliament.  See Political and Constitutional Reform Committee - Parliament's role in conflict decisions: a way forward - 12th report 20th March 2014.

For an alternative view see Defence Brief 17th April - "Off to War"

: In the face of barbarism :

Action is needed to deal with the barbarism of chemical weapons attacks.  The boundaries of international law, as presently generally understood, are inadequate if not seriously deficient. 

The UN Charter governs the use of force.   The "humanitarian intervention" argument for the use of force does not find clear support in the UN Charter though a persuasive case can be made for it.

As Professor Greenwood argued - "International law ought not to require that respect for sovereignty and the integrity of the State must in all cases be given priority over the protection of human rights and human life, no matter how serious the violations of those rights perpetrated by that State."

Nevertheless, a much clearer form of authority is needed if respect is to be maintained for the world order intended by the UN Charter.   Ideally, the Charter would be amended to permit, as suggested by Professor Saul, unilateral action in response to a narrowly defined category of threat such as chemical (or biological) weapons.  Reform is also needed of the workings of the UN Security Council and, in particular, the veto.

Meanwhile, the USA, UK and France were morally right to undertake the limited and carefully targeted action they took on 13th / 14th April and they were legally right but only if one accepts the humanitarian intervention case.

To have permitted chemical weapons to be used unchecked would, as former Attorney-General Mr Dominic Grieve QC MP said in the debate of 16th April, result in "any tyrant, megalomaniac or other person intent on carrying out genocide, if they have the support of an amoral state on the Security Council" being able to do so "with total impunity, even if it were within our power to act to prevent it."

The urgent need to get the Syrian peace process renewed remains as does the need to address the major humanitarian crisis caused by the conflict in Syria.  It is to those matters that governments and the UN must return and the House of Commons would do well to ensure that the UK government plays its full part.

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