House of Commons - Intervention: Why, When and How?

Intervention: Why, When and How? - Defence Committee Contents

2 Strategic rationale for intervention

National Security Strategy and the UK's place in the world

8. A key starting point for any consideration of intervention strategy is the Government's strategic vision of the UK's place in the world, and the level of influence it might realistically exert. This has been an area of contention that commentators have raised with us throughout this Parliament, questioning particularly the coherence of the vision outlined in the 2010 National Security Strategy (NSS) with the subsequent decisions on the manpower and capabilities of UK Armed Forces in the 2010 Strategic Defence and Security Review (SDSR). The 2010 NSS stated that "any strategy for national security must begin with the role we want Britain to play in the modern world"[17] and that the UK's strategy was "to use all our national capabilities to build Britain's prosperity, extend our nation's influence in the world and strengthen our security".[18] The Government claimed that the NSS represented a "whole government approach"[19] and that its intention was to use all the instruments of national power to prevent conflict and avert threats beyond the UK's shores, including UK Embassies and High Commissions worldwide, the international development programme, the intelligence services, defence diplomacy and cultural assets. The NSS said the top priority was countering the threat from terrorism in the UK and abroad and that the UK would:

[...] maintain the defensive and offensive capabilities needed to deploy armed force to protect UK territory and its citizens from hostile action and to meet our commitments to our allies.[20]

9. In 2010, the Government set as its priority the reduction of the UK's budget deficit. In their foreword to the 2010 NSS, the Prime Minister and Deputy Prime Minister saw the ability to meet current and future national security threats as depending on tackling the budget deficit. They added:

Our national security depends on our economic security and vice versa. An economic deficit is also a security deficit. So at the heart of the Strategic Defence and Security review are some tough choices to bring the defence budget back to balance. Those choices are informed by the risks, analysis and prioritisation set out in this National Security Strategy.[21]

10. Although the Government saw reduction of the budget deficit as its main priority, in terms of the UK's influence in the world the NSS stated that "the National Security Council [NSC] had reached a clear conclusion that Britain's national interest requires the rejection of any notion of the shrinkage of influence".[22] The NSC's statement was controversial. Air Chief Marshal Lord Stirrup, Chief of the Defence Staffat the time of the NSS and SDSR, told us during our 2011 inquiry into the SDSR and NSS that this statement had caused much debate in the NSC:

Personally, I did not buy it, and my view is that if the priority is to eliminate the deficit over the course of a Parliament, the rather drastic action that will be necessary means a period of strategic shrinkage. That is my personal view, but that was not the view that prevailed in the production of the document. As I said, what we sought to do was reverse that strategic shrinkage over the second half of the decade, but that is still an open question.[23]

Other witnesses to this inquiry were also critical of the statement and told us that the UK's influence was shrinking.[24]

11. Our 2011 Report on the National Security Strategy and the Strategic Defence and Security Review acknowledged that not reducing the budget deficit would have implications for maintaining the nation's security.[25] However, we concluded that, although influence should not just be measured in military hardware or capability, given the Government's declared priority of deficit reduction, a period of strategic shrinkage was inevitable.[26] We were concerned that the Government appeared to believe that the UK could maintain its influence while reducing spending, not just in the area of defence but also at the FCO. We concluded that if the UK's influence in the world was to be maintained, the Government should demonstrate in a clear and convincing way that these reductions had been offset by identifiable improvements elsewhere rather than make imprecise assertions of an increased reliance on diplomacy and 'soft power'. We warned that if the Government could not do so, the NSSwas in danger of becoming a 'wish list' that failed to make the hard choices necessary to ensure the nation's security. Our Report also raised concernsthat the impact of defence cuts on the UK's influence, defence commitments and role within NATO and other strategic alliances did not appear to have been fully addressed. UK defence does not operate in a vacuum and decisions taken in the UK have repercussions for the spending commitments and strategic posture of allies and alliances.[27]

12. Our concerns were also shared by the Joint Committee on the National Security Strategy (JCNSS) who said that a key point of the NSS was to set priorities, and to guide choices in an era of diminished resources and that although the NSS might contain aspirational elements it must also be realistic. The JCNSS found that NSS's simultaneous recognition of the rise of new global powers, shifts in the centres of economic activity, and reduced resources in the UK, while at the same time asserting "no reduction in influence" was wholly unrealistic in the medium to long term and the UK needed to plan for a changing, and more partnership-dependent, role in the world.[28]

13. In its response to our Report, the Government said:

Global influence is not just about the size or even the capability of a country's armed forces. […] the UK exerts influence in a variety of ways: diplomatic and economic, development assistance, and technological and cultural exchanges, in addition to our capability and willingness to use military force. Through the work of the NSC, the NSS, and the SDSR the Government has sought to coordinate these different aspects so the sum of the whole is demonstrably greater than the sum of the individual parts, reflecting the judgment, […] that we have to exert ourselves to ensure that the UK's influence does not automatically shrink as our proportion of the world's economy and population naturally reduces.[29]

14. Notwithstanding the Government's response to our 2011 Report, we have continued to call for the next NSS and DSR to include a realistic assessment and statement of the UK's place in the world and its level of global influence. Our Report on Towards the next Defence and Security Review: Part One called for a vision of the UK's place in the world to be articulated in the next NSS and for this to form the basis for the consideration of the next DSR.[30] In its response to our Report, the Government said it had noted the recommendation but that the scope of the next NSS would be decided at the time of the next review. The response said that the Prime Minister had stated that the 2010 NSS had helped set the context for what the Government wanted to do in defence and security and that the strategy should inform decisions on these matters. It also emphasised the Government's contention that the 2010 NSS "set out for the first time a clear over-arching vision to use all our national capabilities to build Britain's prosperity, extend our nation's influence in the world and strengthen our security. It needs to be refreshed rather than subjected to a complete overhaul".[31]

15. As we discussed in our Report, Towards the next Defence and Security Review: Part One, this debate has increased in importance due to the potential implications of a US strategic pivot, or rebalancing, to the Pacific and the implications of the associated expectation that Europe should take on greater responsibility for its own security.[32] The Secretary of State for Defence acknowledged in evidence to us that this would be the case and that this would require an increase in the proportion of GDP that European NATO countries spent on defence, which he thought unlikely in the short term, necessitating more effective defence spending by these countries.[33] The Secretary of State described what the UK might do in the context of its European strategic relationships, and the implications for the future of NATO:

The North Africa, Middle East, Horn of Africa area is certainly an area of focus for bilateral joint operations, particularly with the French, but it is also an area for European NATO to consider as, if you like, a subset of an organisation. As you will be aware, there is a tension within European NATO about the relative focus that there should be on the defence of the NATO homeland against a currently non-existent but potential future threat from Russia versus the creation of expeditionary capabilities to forward defend Europe's interests in areas such as the Middle East and North Africa.[34]

16. We concluded in our Report, Towards the next Defence and Security Review: Part One, that there could be few developments more fundamental to the UK's strategic position than the US's intention to focus more on the Pacific region.[35] The Government's thinking on the implications of this for the country's broader security and for the military capabilities that the UK would require is a matter of vital interest for Parliament and the public. Our Report concluded that the development of the next NSS should be a vehicle for the Government to seek to engage both in this debate. In a March 2014 speech in Washington on the "special relationship that exists between the UK and the US", the Secretary of State for Defence was keen to emphasise the Government's planned future investment in UK Armed Forces and the benefit that it could bring to the UK's relationship with the US:

With a fully integrated force of 190,000 regulars and reserves, retaining our ability to deploy into the field a division-size force, our cutting-edge, broad spectrum conventional capabilities, our world class Special Forces, and our unique intelligence network, the UK will continue to be able to project and sustain military power around the world.

We will remain the most capable and most interoperable ally of the United States of America.[36]

ADAPTABLE POSTURE

17. The 2010 SDSR stated that, based on the NSS, the NSC has decided on an "adaptable posture" (although this phrase does not appear in the NSS).[37]The principal elements of the "adaptable posture" included tackling the four tier one risks identified in the NSS (terrorism, cyber security, natural hazard or accident, and an international military crisis drawing in the UK). In addition, the SDSR envisaged this posture would enable the UK to deter the "low probability but very high impact risk of a large-scale military attack by another state […] including through the nuclear deterrent and by ensuring, in partnership with allies, the ability to regenerate capabilities given sufficient strategic notice".[38] It would also include the means to respond to growing uncertainty about longer-term risks and threats, by pursuing an over-arching approach which:

· identifies and manages risks before they materialise in the UK, with a focus on preventing conflicts and building local capacity to deal with problems;

· maintains a broad spectrum of defence and other capabilities, able to deterand contain, as well as engage on the ground, developing threats;

· ensures those capabilities have in-built flexibility to adjust to changing future requirements;

· strengthens mutual dependence with key allies and partners who are willing and able to act, not least to make our collective resources go further and allow nations to focus on their comparative advantages; and

· coordinates and integrates the approach across government, achieving greater effect by combining defence, development, diplomatic, intelligence and other capabilities.[39]

18. The then Secretary of State for Defence told us in 2011 that in adopting an "adaptable posture", two other postures had been advocated to the Government but these had been rejected. The first was the establishment of "Fortress Britain", withdrawing closer to the UK and investing in appropriate assets to sustain this posture. The second posture was a "highly committed" one with the assumption that conflicts of the future would be similar to Afghanistan, with perhaps, for example,a large number of deployable land forces and no requirement for widespread maritime capabilities.[40]

19. The 2010 NSS stated that, since the September 2001 terrorist attacks, the national security apparatus had focused on non-state actors and that the current main national security threat was from international terrorism.[41] The NSS set out three tiers of risks to UK national security in order of priority, but also acknowledged that over the next 20 years the UK could face threats from a variety of sources rather than having one clear type of threat on which to focus.[42] Preventative measures, such as conflict prevention, international aid and defence diplomacy, were recognised as major objectives, but the ability to identify threats at an early stage and be adaptable to them remained a crucial component of the NSS.[43]

20. In our 2011 Report on the SDSR and NSS we supported the adoption of an adaptable posture.[44] Recent events such as those in the Ukraine would appear to support this decision. Indeed, in his evidence for our inquiry, Towards the next Defence and Security Review: Part Two, General (retired) Sir Robert Fry suggested that the period 1991-2012 (where many interventions had involved combat with non-state actors) had the look of an historical aberration and that it could be anticipated that there would be a return to state versus state scenarios.[45] He told the Committee:

It may also be that we can anticipate a return to classical strategic mores in the future. Transnational terrorism will not go away but may look a minor chord in international affairs in comparison to, say, a Sino-Japanese conflict in the South China Sea or an Israeli attack on Iran. And, while the centennial echoes of 1914 may have invited over-literal comparisons between the United Kingdom at the beginning of World War One and the US as a 'weary titan, staggering under the too vast orb of its fate'and bound to share imperial decline, great power relationships look set to return as the currency of strategic exchange. The instruments of engagement will fit the Twenty First Century and might include the use of cyber or currency weapons, but the strategy which calibrates those instruments in pursuit of a defined outcome is likely again to have a recognisably classical form.[46]

21. A strategic and well-articulated vision of the UK's position in the world would lead to more rational decisions on whether or not to intervene as well as a better public understanding of the rationale for any future decision. It would also assist in identifying the strategic objective of such operations, contributing to a more coherent UK foreign, defence and security policy.

22. We remain concerned about the lack of realism in the Government's assertion that there will be no shrinkage of UK influence when resources are still being reduced. We call on the Government to set out in the next National Security Strategy whether it still maintains this assertion and, if so, how it could be achieved.

23. The next National Security Strategy should consider the case for the UK developing a regional strategic focus, particularly in light of new or re-emerging threats to European defence and security.We acknowledge that there will be times when the UK would have to act beyond this regional focus. The next National Security Strategy and the next Defence and Security Review should also include a discussion on the UK's future role in NATO and its resourcing by its members.

24. We continue to support the Government's adoption of an "adaptable posture" in the 2010 Strategic Defence and Security Review. The threats to UK national security remain uncertain and unpredictable and it is important that the Government and UK Armed Forces retain the flexibility to deal with them. The 2010 National Security Strategy said that the national security apparatus had focused on non-state actors and that the current main national security threat was from international terrorism. We agree that these threats remain, but call on the Government to ensure that the next National Security Strategy gives due weight to the likelihood of a return to an increased threat of state versus state conflict and that the force structure, manpower, equipment and capability decisions in the next Defence and Security Review ensure that UK Armed Forces are able to meet all these threats.

THE ROLE OF INTERVENTION

25. In a speech in Chicago in 1999, the then Prime Minister Rt Hon Tony Blair set out his so called "Chicago doctrine" on intervention decisions:

So how do we decide when and whether to intervene. I think we need to bear in mind five major considerations

First, are we sure of our case? War is an imperfect instrument for righting humanitarian distress; but armed force is sometimes the only means of dealing with dictators. Second, have we exhausted all diplomatic options? We should always give peace every chance, as we have in the case of Kosovo. Third, on the basis of a practical assessment of the situation, are there military operations we can sensibly and prudently undertake? Fourth, are we prepared for the long term? In the past we talked too much of exit strategies. But having made a commitment we cannot simply walk away once the fight is over; better to stay with moderate numbers of troops than return for repeat performances with large numbers. And finally, do we have national interests involved? The mass expulsion of ethnic Albanians from Kosovo demanded the notice of the rest of the world. But it does make a difference that this is taking place in such a combustible part of Europe.

I am not suggesting that these are absolute tests. But they are the kind of issues we need to think about in deciding in the future when and whether we will intervene.[47]

26. Military intervention should not be considered in isolation. The 2010 SDSR said that the Armed Forces would "focus more on tackling risks before they escalate, and on exerting UK influence, as part of a better coordinated overall national security response".[48]As part of this approach there would be renewed emphasis on using conventional forces to deter potential adversaries and reassure partners, including through military deployments to demonstrate resolve and capability and through joint exercises with partners.[49]We considered the strategic role of deterrence in our Report on Deterrence in the twenty-first century.[50] Also associated with this is the concept of containment.[51]The SDSR also envisaged greater coordination of civilian and military expertise in both conflict prevention and crisis response in building stability overseas.[52] Defence diplomatic engagement would be focused overseas on where it added most value within the Government's overall approach, for example to support operational activity or, where appropriate, defence exports.[53] Part of this integrated approach would include alternative forms of intervention, such as overseas defence engagement (the use of defence assets and activities short of combat operations to achieve influence),[54]information warfare, and conflict prevention.[55] The MoD told us that the Government was clear in the 2010 NSS that intervention had an important role to play when other means of dealing with threats had failed.[56] The 2010 NSS said:

We will work with others to seek to prevent such crises developing, to deter malign forces and, in the last resort, to intervene militarily. We therefore need preventative and stabilisation activity, including diplomatic action and strategic intelligence capability, the ability to deter, and the ability and will to intervene militarily where absolutely necessary. We would work closely with our allies and partners at all stages of an international military crisis.[57]

27. Therefore one of the eight National Security Tasks in the 2010 NSS was:

Help resolve conflicts and contribute to stability. Where necessary, intervene overseas, including the legal use of coercive force in support of the UK's vital interests, and to protect our overseas territories and people.[58]

28. The ability to intervene was described in the 2010 SDSR under Military Task 6: "Defending our interest by projecting power strategically and through expeditionary interventions".[59] The SDSR also outlined Defence Planning Assumptions which envisaged how the Armed Forces would be sized and the operations they might be required to undertake.[60] It also defined the different types of operations that the Armed Forces might undertake: standing commitments, intervention operations and stabilisation operations and set out the difference between enduring and non-enduring operations. These were intended as guides for the structure and scale of forces and the SDSR acknowledged there could be considerable overlap.

29. The MoD asserted that the 2010 SDSR emphasised a "strong preference against intervention, and stresses that the Armed Forces will focus more on tackling risks before they escalate, and on exerting UK influence, as part of a better coordinated overall national security response."[61] The MoD argued that the NSS made it clear that intervention should only be undertaken in support of the UK's national security interests:

Our strategic interests and responsibilities overseas could in some circumstances justify the threat or use of military force. There will also be occasions when it is in our interests to take part in humanitarian interventions. Each situation will be different and these judgements will not necessarily be easy.[62]

30. The MoD recognised that there were interventions that might be termed "non-discretionary", for example when justified under Article 51 of the UN Charter which confirms the inherent rights of states to collective or individual self-defence.[63] This could include the protection of UK Overseas Territories such as the Falklands or the conduct of non-combatant evacuation operations to protect UK citizens abroad. The MoD also cited international treaty obligations, such as those under NATO, which might require military action in collective self-defence. The MoD added:

To this end, as the 2010 NSS makes clear, the UK maintains "the defensive and offensive capabilities needed to deploy armed force to protect UK territory and its citizens from the full range of threats from hostile action and to meet our commitments to our allies."[64]

However the MoD also acknowledged that there were "discretionary" interventions where there is a political choice about whether or not to intervene, in what way to do so and to what extent.[65]

31. We agree that intervention in its many forms has an important role to play in the UK's national security and maintaining the national interest. We note the MoD's statement that military intervention remains an option of last resort in the UK's national security strategy and should only be considered when other means have failed. Unfortunately, but understandably, the last resort is often seen by the public as the first resort due to the Government's failure to communicate the other means it has employed prior to a decision to intervene. In addressing this perception, the Government should set out how it determines that other means have failed and that intervention is the best option. The Government should consider building on the so-called "Chicago doctrine" from 1999 by including in the next National Security Strategy a statement of the criteria for when and whether to intervene.

32. We call on the Government to include in the next National Security Strategy (NSS) and the next Defence and Security Review a description of interventions that it regards as non-discretionary and the rationale behind this view. This would give a good indication of UK intent in terms of its national security interests. We note that the Ministry of Defence recognises that some interventions can be regarded as discretionary. While we understand that the Government will need to be selective in undertaking discretionary interventions, it should consider developing a base criteria for these types of interventions to be included in the next NSS. Such criteria would assist the Government in deciding whether an intervention was in the UK's national interest and also assist in communicating and engaging with the public on intervention decisions. The next NSS should also detail what types of discretionary intervention operations the Government envisages the UK would be able to undertake on its own and those which it would undertake with allies.

NATIONAL SECURITY COUNCIL

33. Following the 2010 General Election, the new Coalition Government established the National Security Council (NSC) with its own secretariat based in the Cabinet Office. The NSC is a Cabinet Committee which, in similar fashion to other such committees, derives its authority from, and ultimately has its decisions ratified by, the Cabinet.[66] The October 2010 National Security Strategy stated that the NSC had been established "to make sure the government takes decisions properly".[67]In its written evidence to our 2010 inquiry into the processes followed in the development of the SDSR, the MoD stated that "the new NSC provides high-level strategic guidance to Departments, co-ordinates responses to the dangers we face, and identifies priorities".[68] We have welcomed the establishment of the NSC in several of our Reports in this Parliament but are conscious that concerns continue to be expressed about its work and role. The Joint Committee on the National Security Strategy has been critical of the NSC's focus on operational matters and short-term imperatives rather than "considering long term and blue skies topics", and its failure to make the contribution it should to "enabling Government to work as a co-ordinated whole".[69]In our Report, Towards the next Defence and Security Review: Part I, we echoed these concerns[70] and in our Future Army 2020Report, we expressed concern that the Army 2020 plan had not been considered by the NSC.[71]

34. We have welcomed the establishment of the National Security Council (NSC) and support its attempts to bring greater coordination and focus across Government on security matters to lead to greater operational effectiveness. National security requires a whole government joined up approach. However,we are concerned that the NSC becomes too involved in operational matters and short-term imperatives rather than giving the strategic lead on questions such as intervention policy.

United Nations Charter and the legal debate

UK LEGAL POSITION

35. Another area to be considered in discussing the strategic rationale of intervention policy is the legal context within which it operates. The legality of intervention is highly controversial and an area of substantial disagreement, not just between nations but also among legal practitioners, academics and commentators. This disagreement has also been demonstrated within the public debate on intervention operations.

36. The MoD defined intervention as "the projection of military force (augmented by other agencies as required) outside UK sovereign territory to achieve an effect in securing, protecting or promoting UK national interests through the use or threat of force".[72] The MoD acknowledged that any military intervention in a sovereign state was likely to be controversial. The Department told us:

Article 2(4) of the UN Charter[73] prohibits the use of force in international relations and it is well-established international law that States are prohibited from intervening in the internal matters of another state. There are well accepted exceptions to that general rule: a state's inherent right to individual or collective self-defence, as recognised by Article 51 of the UN Charter, and the right of the UN Security Council to authorise the use of force to maintain or restore international peace and security under Chapter VII of the UN Charter. A number of states, including Russia and China, both of whom have the power of veto within the UN Security Council, are reluctant to allow the international community to exercise its powers under Chapter VII where it would involve intervention in a third state.[74]

37. In its written evidence, the MoD told us that if there was no UN Security Council resolution for action then "the UK would still be permitted under international law to take exceptional measures in order to alleviate a humanitarian catastrophe".[75] The UK Government's position is that such a legal basis is available, under the doctrine of humanitarian intervention, provided the following three conditions are met:

a) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

b) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

c) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).[76]

38. However, it is unclear to what degree the UK Government's interpretation of the legal position is accepted by either the international community or the general public in the UK.[77] In the following paragraphs we set out the concept of the Responsibility to Protect together with a description of the legal debate on intervention.

RESPONSIBILITY TO PROTECT

39. The Responsibility to Protect (R2P) came about from a report from the International Commission on Intervention and State Sovereignty (ICISS) in 2001.The ICISS wanted to create a right of humanitarian intervention outside the auspices of the UN Charter, but the international community ultimately rejected this. The High-Level Panel on Threats, Challenges and Change in its 2004 reportagreed that the international community had a responsibility to protect populations when their government does not, but limited this to saying that the UN Security Council was the gatekeeper to intervention. The 2005 UN World Summit adopted the concept of R2P, but this was much narrower than that envisaged by the ICISS. It limited application of R2P to situations of war crimes, crimes against humanity, genocide and ethnic cleansing and stated that any action must be taken within the framework of the UN Charter and therefore limited interventions to those authorised by the UN Security Council.[78]R2P was endorsed by UN Security Council Resolution 1674.[79]

40. The R2P asserted that all States have a responsibility to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing and where a State is manifestly unable or unwilling to do this, that the international community has a responsibility, on a case-by case basis, to protect those populations.[80] The MoD told us that "this could include the use of coercive measures, such as sanctions, or the use of force authorised by the Security Council".[81] However, the MoD added that R2P did not alter international law governing the use of force.[82] The Humanitarian Intervention Centre, an independent foreign policy think tank, agreed that the R2P had not changed the legal position on intervention:

Despite widespread hope for the concept following the ICISS report, it [R2P] has not emerged as a developing legal norm, although it has the potential to be. Future interventions still have to be authorised by the Security Council and thus all R2P has done is add more legitimacy to these authorisations to use force. To date, R2P has only been employed in Libya and the Côte d'Ivoire and its advancement has been seriously compromised by lack of application in Syria.

The Humanitarian Intervention Centre believes that the UK could become the leading nation in championing the Responsibility to Protect doctrine. If the UK is firm in emphasising the fact that sovereignty is conditional on protecting your population and that they will take action if the state fails to protect, then they can use R2P to legitimise interventions in the future. The application of the responsibility to protect in the Libya conflict is a prime example of when the principle should be used in practice.[83]

41. The Henry Jackson Society added:

Unfortunately, the decision regarding the use of force under R2P resides with the UN Security Council, and as such any action can be vetoed by one of the Permanent Five members. Moreover, whilst R2P does impose a moral obligation to use force if both necessary and authorised, it does not make intervention a legal requirement.[84]

42. UNA-UK suggested that the R2P affirmed by UN member states differed from the common conception of humanitarian intervention in a number of respects and that several points needed to be considered in this regard:

· It relates specifically to the prevention of and response to four crimes based in international law: genocide, war crimes, ethnic cleansing and crimes against humanity;

· All states have a primary responsibility to protect their populations from these crimes at all times: there is never a case in which R2P is not applicable;

· R2P calls specifically for the prevention of these crimes and their incitement;

· Measures in the UN Charter, under Chapter VI, VII and VIII are to be used only when prevention fails or is thought likely to fail; and

· Military force, akin to what is commonly known as 'humanitarian intervention', is endorsed by R2P under Chapter VII but it must be authorised by the Security Council.[85]

THE LEGAL DEBATE

43. The legal status of intervention is a major area of dispute. The United Nations Association-UK (UNA-UK) told us that "contemporary international law may be read as either permitting or prohibiting international intervention for humanitarian reasons".[86]Intervention for humanitarian purposes has been defined as "forcible military action by an external agent in the relevant political community with the predominant purpose of preventing, reducing or halting an ongoing or impending grievous suffering or loss of life."[87]

44. UNA-UK defined intervention as:

'Intervention' has generally referred to the external deployment of a one-nation or multination military force into another country (or its airspace or national waters) with or without the prior consent of (a) the country in question or (b) the international community as represented by the United Nations. Such variations are mirrored in the purpose and goal of the interveners but, in basic terms, may be held to be the alleviation of civilian suffering by securing or facilitating food, shelter and water and so forth; by protecting civilians through the provision of secure geographical areas or by attacking a party or parties to the conflict directly.[88]

45. UNA-UK added that as:

stated in the Background Research Essays of the International Commission on Intervention and State Sovereignty's (ICISS) 2011 report, "The definition of 'humanitarian,' as a justification for intervention, is a high threshold of suffering. It refers to the threat or actual occurrence of large scale loss of life…massed forced migrations, and widespread abuses of human rights. Acts that shock the conscience and elicit a basic humanitarian impulse remain politically powerful."[89]

46. Although events could be shocking and the desire of the international community would be to alleviate suffering, humanitarian intervention remains controversial, even when recognised as being the most extreme of the options available to prevent and halt threats against civilians. The UNA-UK told us that the controversy arose from a "disconnect between the understanding that, beyond an explicit agreement arrived at between the 'intervening parties' and the nation-state in question, the only legitimate intervention is one mandated by the international community through the United Nations Security Council, and which is outlined in the United Nations Charter".[90]

47. The primary legal obligation to the UN Charter has been supplemented by a number of international conventions such as the 1947 Convention on the Prevention and Punishment of the Crime of Genocide, the four Geneva Conventions in 1948 and subsequent protocols, and the 1998 Rome Statute of the International Criminal Court.[91] However, there is still a major debate on whether military measures should be used to enforce the conventions and also how they relate to a State's overriding obligation to the UN Charter.

48. Our witnesses have highlighted that a consistency of response was unlikely as UN Security Council agreement was dependent on the vested interests of the Permanent Five members being satisfied or those countries would use their vetoes.[92] There were also concerns that military intervention was seen as a threat to state-sovereignty, especially where the intervention was seen to be aimed at regime change rather than the protection of civilians.[93] Professor Mary Kaldor, Professor of Global Governance, Civil Society and Human Security Research Unit, London School of Economics and Political Science, suggested there was an argument for developing a legal mechanism, with appropriate safeguards, for exceptions to UN Security Council authorisation.[94] The Oxford Research Group called for Parliament to work with data providers from the intelligence community and legal communities as well as civil society to understand the availability and limitations of data on conflict and issues such as weapons of mass destruction as a means of establishing the evidentiary threshold that would be necessary and sufficient for UK Armed Forces to be committed to combat.[95]

49. The legal justification for military intervention will continue to be controversial. We note the Government's statement that when there is no UN Security Council Resolution for action, there is a legal basis available under the doctrine of humanitarian intervention which would permit the UK under international law to take exceptional measures in order to alleviate a humanitarian catastrophe providing certain conditions are met. We question whether the Government's position is generally accepted by the international community or the British public. The Government should set out in detail in the next iterations of the National Security Strategy and the Defence and Security Review the principles of its legal position, including its relationship with the UN Charter, international law and the concept of the Responsibility to Protect, on the deployment of UK Armed Forces for intervention operations. This would assist with providing the public with greater information on, and understanding of, the Government's position on the use of UK Armed Forces rather than waiting to the heat of debate immediately prior to a potential deployment.

ATTORNEY GENERAL'S LEGAL ADVICE ON MILITARY ACTION

50. Although the Government has not committed to do so on every occasion, ithas published notes summarising its legal position on the possible deployment of UK Armed Forces, for example in respect of Libya and the potential use of force in Syria. We welcomed this practice in our Report on operations in Libya together with the Government's commitment to consider publication of an updated summary should significant developments occur that necessitated a reassessment of the Attorney General's advice.[96] In respect of the advice published on Syria, Dr Arman Sarvarian, Director, Surrey International Law Centre, was concerned that the summary of the legal position was not attributed to the Attorney General, unlike that for the Libya deployment which stated that he had been consulted. Dr Sarvarian told us:

The note published by the Office of the Prime Minister ('the Note') does not constitute legal advice in the true sense of the term, namely, as an independent opinion produced by a lawyer who accepts professional responsibility for it. It is not signed by the Attorney General and is not attributed to him. It is consequently best-treated as the collective view of the Cabinet, or alternatively as the individual view of the Prime Minister. Although it is not clear to what degree the Note is based upon legal advice provided by the Attorney, its value as a definitive statement of the legal position of the United Kingdom is diminished by the fact that the Attorney (unlike in the case of Lord Goldsmith concerning Iraq) did not undertake personal responsibility for it through a ministerial statement to the House of Commons.[97]

51. We welcome the Government's publication of summaries of its legal position on the deployment of UK Armed Forces. We note the Government's view that the confidentiality of the Attorney General'sfull legal advice needs to be upheldand that legal privilege is an essential component of the UK's legal system. We hope that the publication of summaries of the Government's legal position on the deployment of Armed Forces will continue to be regarded as normal and best practice. We recommend that these notes should always state how this position was formulated and who was consulted. We further recommend that the Government should undertaketo continue to publish its legal position on the deployment of the Armed Forces.

Role of Parliament

52. The role of Parliament in decisions on the deployment of UK Armed Forces has been the subject of contentious debate over a number of years.The 2007 Consultation Paper set out the previous Government's view of the current constitutional position:

The constitutional position of the UK Armed Forces is that their government and command are vested in Her Majesty. Direct control of the armed forces under the Sovereign is divided between the Government and the Defence Council. Parliamentary control of the armed forces is based primarily on the need for annual renewal by Parliament of the Acts which govern enlistment and discipline in the armed forces. Acts of Parliament also affect the use of armed forces within the United Kingdom.

For overseas operations, the political decision to deploy the Armed Forces rests with the Prime Minister or Cabinet through their exercise of the Royal Prerogative. It is the Defence Council which has the power of command over the members of the Armed Forces and the power to make appointments within the Armed Forces.The Defence Council is also responsible for such matters relating to the administration of the armed forces as the Secretary of State directs.

In theory the prerogative powers could allow the Government to send Armed Forces into armed conflict abroad without any Parliamentary discussion or debate, or without Parliamentary consent. In practice it is inconceivable that any government could make such an important decision without the support of the House of Commons as the executive is dependent on the support of Parliament for its survival and it is fully accountable to Parliament. […][98]

53. Successive Governments have undertaken to involve and inform Parliament, both in the decision to use force and the progress of military campaigns. This has been primarily through statements to the House, questions and debates. In recent years a convention has developed that the House of Commons should have the opportunity to hold a debate on conflict decisions. The Government has acknowledged this development. In March 2011, the then Leader of the House of Commons, Rt Hon 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.[99]

54. On the occasion where a vote on the deployment of the Armed Forces has been held, it could be argued, that were the Government to be defeated, it would be under no constitutional obligation to change its policy given its prerogative power in these matters. However, such a defeat would indicate the view of Parliament,and the Government would be under political and public pressure to take that view into account.

55. There have been several consultations and proposals put forward by Governments, Opposition parties, Parliamentary Committees and others to formalise the role of Parliament in the authorisation of military action. The previous Government proposed a draft parliamentary resolution on war powers in a White Paper in 2008, but the House did not have an opportunity to consider such a motion before the General Election in May 2010. The 2008 White Paper said:

While not ruling out legislation in the future, the Government believes that a detailed resolution is the best way forward. This will take the form of a House of Commons resolution which sets out in detail the processes Parliament should follow in order to approve any commitment of Armed Forces into armed conflict. The resolution could be underpinned by a specific standing order, but that is ultimately a matter for each House and not the Government. The uncertain nature of military deployments and likelihood that the lead up to each conflict or potential conflict situation would not necessarily conform to any pattern would require a high degree of flexibility from the proposed mechanism. A resolution will define a clear role for Parliament in this most important of decisions, while ensuring our national security is not compromised by the introduction of a less flexible mechanism.[100]

56. In March 2011, the Foreign Secretary went further in the debate on the deployment of UK Armed Forces to Libya when he said the Government would "enshrine in law for the future the necessity of consulting Parliament on military action".[101] However, no legislative proposals have been brought forward by the Government amid reports that Government officials were unable to draft appropriate legislation whilst maintaining the Government's ability for rapid decisions in an emergency.

57. Throughout this Parliament, the Political and Constitutional Affairs Committee of the House of Commons has scrutinised this question and published reports on the role of Parliament in conflict decisions.[102] The latest of these Reports was published in March 2014 and included a draft parliamentary resolution setting out the process that should be followed to consult Parliament on conflict decisions. It saw this as an interim step towards enshrining Parliament's role in conflict decisions in law.[103] The Committee summarised the key points of its Report as:

· The Government needed to make a clear statement of how it intends to honour the Foreign Secretary's commitment of 2011, and give a specific Minister responsibility for making progress on this.

· A parliamentary resolution would serve as a useful interim step towards enshrining Parliament's role in law, by embedding the current convention and clarifying some of the ambiguities that exist under current arrangements.[104]

58. The tension between the Executive's authority under the Royal Prerogative and the role of Parliament was given greater prominence by the Government's defeat in the House of Commons in August 2013 on the proposal to authorise the potential use of military force in response to the situation in Syria and the use of chemical weapons. The substantive motion put before the House of Commons asked the House to "agree that a strong humanitarian response is required from the international community and that this may, if necessary, require military action that is legal, proportionate and focused on saving lives by preventing and deterring further use of Syria's chemical weapons".[105] The motion also said "that every effort should be made to secure a Security Council Resolution backing military action before any such action is taken, and notes that before any direct British involvement in such action a further vote of the House of Commons will take place".

59. The Official Opposition proposed an amendment to the Government's motion stating that the House would only support military action if and when certain conditions had been met. The conditions included UN Security Council consideration and vote on the matter following reports to it by UN weapons inspectors, a clear legal basis in military law for collective military action, and the Prime Minister making a further report to the House on the achievement of these conditions so that the House of Commons could vote on UK participation in military action in Syria.[106] Both the Government motion and the Opposition amendment were defeated.

60. Immediately following the announcement of the results of the votes, Rt Hon Edward Miliband MP, Leader of the Opposition, raised a point of order asking "the Prime Minister [to] 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".[107] In response the Prime Minister told the Chamber:

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.[108]

61. Some commentators have regarded this as an assertion of the sovereignty of Parliament and a limitation to the Royal Prerogative on these matters. It has been suggested that any significant future military action cannot now be contemplated without prior consultation with Parliament. Professor Malcolm Chalmers from RUSI said:

It is now hard to see how any UK Government could undertake significant military action without the support of Parliament, or indeed of the wider public. And it is difficult to see such support being given unless there is a clear national interest involved, or if military operations are undertaken with the imprimatur of a UN Security Council mandate—at least until the shadows of Iraq and Afghanistan have faded much further from the national consciousness [...]

The UK Parliament and public are no longer prepared to give their Government the benefit of the doubt on military operations, and the Government will be constrained in what it can do in future as a result. The consequences for UK defence and foreign policy will be examined with interest by allies and potential adversaries alike.[109]

62. Former FCO Minister Alistair Burt MP, suggested that the Government's power to launch military action was now in a mess and the role of Parliament should be revisited, including at what stage it should be consulted on a military deployment.[110] In his written evidence to our inquiry into UK Armed Forces Personnel and the legal framework for future operations, Steven Haines, Professor of Public International Law, University of Greenwich told us:

It is an interesting question whether or not the current PM's decision to refer Syria to Parliament has set a precedent that subsequent PMs will find it difficult not to repeat.One suspects this is the case but, as with all such constitutional shifts, we must wait for subsequent experience to either confirm a shift in that direction or mark the Syria decision out as an exceptional departure from a constitutional norm.

Whatever the future holds in that respect, I remain convinced that giving Parliament a role in decision-making of this sort would be unfortunate.It is the role of HMG in our constitution to decide within the law, with Parliament determining what the law should be.Clearly this means that if Parliament decides through legislation that military deployment decisions must be made by Parliament, then future governments will be obliged to comply with that.However, I believe this would grant Parliament inappropriate executive responsibility for matters that it is not appropriately configured to shoulder.[111]

63. However, other commentators have supported the role of Parliament in conflict decisions. Professor Nigel White, Professor of Public International Law at the University of Nottingham, said it was essential. In written evidence to the Political and Constitutional Affairs Committee, he said:

Parliamentary approval for any use of force has become essential primarily because of the anachronism of unregulated prerogative powers. Powers that once belonged to monarchs should not be wielded without proper democratic accountability; indeed they should be effectively regulated/replaced by clear statutory rules.[112]

64. In his March 2014 Washington speech the Secretary of State for Defence said that the UK had not lost its appetite for foreign military interventions despite the rejection of such action in respect of Syria and this should not been seen as implying a retreat from international engagement. He added the UK "remained determined to plays [its] role on the world stage and to do so as an ally and partner of the US". [113]

65. The role of Parliament in conflict decisions is a contentious issue. The House of Commons' decision in August 2013 to reject the potential deployment of military force to Syria (despite provisions in the Government's resolution that would have required efforts to secure a UN Security Council Resolution authorising such action and a further vote in the House of Commons on direct UK involvement) has significantly added to the debate on what the role of Parliament should be in conflict decisions and its relationship with the Royal Prerogative on such matters. The Government should intensify its efforts to resolve this matter. We regard Parliament's role as one of a strategic inquisitor on military deployments.As a first step, we call on the Government to clarify its position on whether it wishes to legislate to formalise the requirement to consult Parliament on military action or whether it favours codifying the role of Parliament in a Parliamentary resolution. We do not consider it appropriate for the Government to wait until the next possible military deployment to resolve this issue.We conclude that, wherever possible, Parliament should be consulted prior to the commencement of military action, but recognise that this will not always be possible such as when urgent action is required. We call on the Government to commit to ensuring that a summary of the legal justificationon military action is available to Parliament in advance of any such debate.

Non-intervention

66. As well as considering the strategic rationale and legal framework for taking intervention action, our witnesses told us there would also be consequences from a decision not to intervene. The Humanitarian Intervention Centre said:

military intervention is always associated with a risk that conflict might spill out across the country subject to intervention and into neighbouring states. In this regard international intervention may have potentially destabilising effects on a region. But on the other hand, non-intervention may similarly lead to regional destabilisation, especially where terror networks spread out across porous borders and into neighbouring countries that are often powerless to prevent this.[114]

67. In her evidence, Professor Mary Kaldor told us that while there was considerable and understandable reluctance to intervene in the aftermath of operations in Afghanistan and Iraq, the current situation in Syria demonstrated the dangers of non-intervention:

The current situation in Syria, characterised by massive human rights [violations] including the shelling of civilians, forcible population expulsion, sexual violence, the provocation of sectarianism, the growth of jihadism and ofcriminality, the use of chemical weapons, not to mention the risk of the spread of this type of violence, illustrates the perils of non-intervention.[115]

68. Witnesses have suggested that non-intervention could have wider global implications than merely in the current area of concern.[116] In this regard, non-intervention can be related closely to a failure of deterrence, for whilst the capability to intervene might exist, the lack of will to intervene undermines the ability to deter. For example, the question arises whether the decision not to intervene in Georgia or Syria might have encouraged the current Russian action in the Ukraine.

69. General Sir Peter Wall, Chief of the General Staff, discussed this point in his March 2014 speech at Chatham House.[117] He suggested that the political tensions regarding, and the experiences of, previous deployments over the last decade such as in Iraq and Afghanistan had fuelled a political and public reluctance to use military force in the future, particularly in committing land forces. General Wall said that a "sense of what some have described as moral disarmament in the West, after ten years of politically awkward campaigns and a false sense of negligible threats, may already be a factor in others' expectations of our reaction to provocation". He added that in the domestic context, the political inclination for the UK to be involved in new operations was currently low. He suggested that "the Syria vote, a preference for stand-off engagement with precision weapons with limited land engagement which we saw in Libya, are indications of this reticence. In the case of the latter we now understand better the limitations of such an approach" and he warned that the UK should be prepared for potential adversaries to exploit this and noted a danger of over correcting due to the experiences of the last decade. He concluded that "ultimately history tells us that in some circumstances committed land forces may be the only way to achieve decisive outcomes in support of our strategic objectives." It should be noted that this debate is not limited to the UK. For example, there is a growing debate in Germany on the future of its Armed Forces and whether they should play a greater role in resolving international conflicts and whether this would mean a higher level of deployments.[118]

70. We understand and acknowledge the current lack of appetite for military operations given the experiences and tensions of the past decade for operations in countries such as Afghanistan and Iraq. However, it is also necessary to understand and acknowledge that there are consequences to decisions by the UK and the international community not to intervene in humanitarian or non-humanitarian situations. Non-intervention decisions have implications for the UK's place in the world and its influence which are as profound as a decision to undertake an intervention operation. Decisions not to intervene could have wide global implications for efforts to deter hostile actions by other states or non-state actors.The Government should be more forthright in stating the consequences of non-intervention when it proposes intervention actions. The next National Security Strategy and the next Defence and Security Review should also include an indication of how the Government balances and decides between these two choices.

SDSR and the use of UK Armed Forces

71. The 2010 Strategic Defence and Security Review (SDSR) set out five principles which would govern the use of UK Armed Forces:

We will be more selective in our use of the Armed Forces, deploying them decisively at the right time but only where key UK national interests are at stake; where we have a clear strategic aim; where the likely political, economic and human costs are in proportion to the likely benefits; where we have a viable exit strategy; and where justifiable under international law.[119]

72. In its written evidence, the MoD asserted that these principles were particularly appropriate to interventions that might be described as 'discretionary' (see paragraph 30 above) i.e. where there was a political choice about whether or not to intervene, in what way and to what extent.[120]

73. An example of a discretionary intervention was Libya in 2011. In our Report on Operations in Libya, we noted the 2010 SDSR's principles for the deployment of UK forces. While accepting that operations should have a clear strategic aim, we recommended that the Government should develop this concept more by undertaking a more detailed, comprehensive and strategic assessment before deciding to intervene.[121] In its response to our Report the Government stated the SDSR's principles governing the use of UK Armed Forces were a "clear benchmark against which [it would] consider any proposed deployments".[122] However, the Government added that the precise form of any analysis would be dependent on the circumstances prevailing at the time, including the urgency, scale and nature of the potential deployment.

74. We welcome the Government's intention that any deployment of UK Armed Forces should have a clear strategic aim. While conscious that deployments will differ and some will be of an urgent nature we repeat our call that the Government should develop this concept by undertaking a more detailed, comprehensive and strategic assessment before deciding to intervene. This should address the strategic ends, ways and means, including generating the necessary parliamentary support. We call on the Government to set out in the next Defence and Security Review how it determines and measures success against the strategic aims set for the deployment of UK Armed Forces. We have seen no sign that its approach has resulted in a more strategic use of the Armed Forces since the 2010 Strategic Defence and Security Review.

17 HM Government, A Strong Britain in an Age of Uncertainty: The National Security Strategy, Cm 7953, October 2010, p 4 Back

18 Ibid, p 9 Back

19 Ibid p 10 Back

20 Ibid p 9 Back

21 Ibid p 4 Back

22 Ibid p 10 Back

23 Defence Committee, Sixth Report of Session 2010-12, The Strategic Defence and Security Review and the National Security Strategy, HC 761, Qq 274-275 Back

24 Ibid, Q 454 [Professor Julian Lindley-French] Back

25 Ibid, para 54 Back

26 Ibid, para 64 Back

27 Ibid, para 65 Back

28 Joint Committee on the National Security Strategy, First Report of Session 2010-12, First review of the National Security Strategy 2010, HL 265 HC 1384 Back