House of Lords - Constitution

Select Committee on Constitution Fifteenth Report

CHAPTER 2: Political and legal factors influencing the deployment power

20. Historically, the British constitutional arrangements for deploying armed force have been an unconstrained instrument of foreign policy, to protect, promote—or even, in the nineteenth century, expand—British overseas interests; to play a part in maintaining the balance of power in Europe; and to punish those who sought to thwart those purposes. Today, certainly since the Second World War, and perhaps since the Kellogg-Briand Pact (Paris 1928) by which states agreed to renounce war as an instrument of policy, there are treaty restrictions on this freedom.

21. Nevertheless, although the nature of war may have changed, resort to military force remains an instrument of policy. Some wars, for example of self-defence (like the restoration of sovereignty in the Falklands), serve precisely the same purposes as they ever did and have been described as "wars of necessity". But the phenomenon of military intervention for reasons other than to preserve the state's own vital territorial interests, sometimes called "wars of choice", could only be categorised as being waged in the national interest if that "interest" is given a very broad definition. In evidence, Professor Freedman described this "discretionary" approach to intervention in civil conflicts in third countries as "a very difficult choice that faces government so that sometimes you get involved, belatedly in Bosnia, more quickly on Kosovo," and contrasted the American use of force in Somalia, where "they got burnt," and the consequent lack of it in Rwanda.[15]

22. Professor Freedman also told us that unlike wars of necessity, which arise from attack or an imminent threat of one and often require instant use of the deployment power, the decision to engage in wars of choice frequently evolves more slowly, allowing governments to weigh up the factors involved before deciding whether and how to intervene.[16] The justification for such interventions varies—to relieve an occupied state, peacekeeping or peace enforcement, to mitigate or prevent a humanitarian disaster, or rescue nationals. On the other hand, Sir Lawrence categorised the "pre-emption" in Iraq in 2003 as "quite unique … a decision on the basis not that there was an immediate threat but that if they did not act a threat could develop."[17]

23. We conclude that there are two broad considerations which might influence the decision to use the deployment power in a "war of choice." One is a sense of political, even moral, obligation to take action (for example over Kuwait in 1991, Sierra Leone in 2000). The other is a judgment that circumstances at the time created a pressing security need to act (destroying the Taliban in Afghanistan after 9/11; it was also at least part of the Government's case for action against Iraq in March 2003).

TREATY AND OTHER INTERNATIONAL OBLIGATIONS

24. We were assured that "wars of obligation really do not exist." Ms Elizabeth Wilmshurst added that Article V of the NATO Treaty was so broadly drawn that "no country would consider that it had to produce its military if its Parliament did not want to."[18] Professor Greenwood agreed. We note that Article V of the NATO Treaty, which is the core of the alliance's commitment to collective self-defence, only commits an individual signatory to take "such action as it deems necessary" in the event of an attack on another. Similarly, Ms Wilmshurst told us, "it is not conceivable that the Security Council would impose an obligation on the United Kingdom." We believe this means that while the UNSC can authorise willing states to use force for the purposes and on the conditions established by the Council, it cannot compel them to do so.

25. We include in Volume II a summary, compiled for us by the Foreign and Commonwealth Office, of formal commitments to consider military assistance to other states which might request it. In a written submission[19] the Foreign and Commonwealth Office provided us with details of formal commitments of a defence related nature with other states. Not all of the texts of the treaties are readily available, but Dr Howells'[20] covering letter says none of them creates a legal requirement automatically to provide military support to other countries since every deployment ultimately requires a separate and independent decision by the United Kingdom government. Dr Howells also emphasised that "there is, of course, a difference between a legal requirement to deploy military forces created by international treaties, and a political expectation of military deployment". He considers that there are four treaties which probably create the strongest sense of general political expectation, namely the North Atlantic Treaty, the Treaty of the European Union, the UN Charter and the Brussels Treaty establishing the WEU, but all four "preserve the fundamental principle that the United Kingdom armed forces cannot be deployed without a sovereign decision by the United Kingdom government." Many other agreements which might be regarded as creating a political expectation of deployment are with former colonies and concern their security within their own region, for example with Belize, from its independence in 1981 until 1994; although there is no longer a treaty basis for consultations, British governments have made it clear that they would take very seriously any threat to Belize.

26. British forces have in the past been deployed in answer to requests from treaty partners, such as the support given to Malaysia in the "Confrontation" with Indonesia from 1963. Professor Freedman drew our attention[21] to a report published by the Human Security Centre[22] demonstrating that since the end of the Second World War Britain has been involved in more military operations than any other country, including the United States. The report notes that "only a minority of the wars that [former colonial powers] waged were against anti-colonial independence movements—most were either interstate conflicts or interventions in intrastate wars."[23]

27. The Ministry of Defence (MOD) helpfully supplied us in confidence with details of more than sixty British deployments since 1990. Most were actions in cooperation with other states and/or under UN authorisation (although deployments in Iraq and in the former Yugoslavia were made without UN authorisation). The majority were operational deployments subsequent upon initial major decisions to deploy in response to particular international situations which included:

In the Arabian Gulf and Iraq: in response to the Iraq invasion of Kuwait in 1991; the enforcement of the no-fly zones in Iraq; and the coalition operations in Iraq since March 2003.
In the Balkans, contributions to the UN Protection Force (UNPROFOR); the NATO-led implementation force (IFOR) and the subsequent stabilisation force (SFOR); and to NATO operations in former Yugoslavia, Kosovo (KFOR).
The Sierra Leone evacuation of British nationals following internal rebellion, and subsequent support for the UN and Sierra Leone army.
In Afghanistan, operations against al-Qa'eda and the Taliban in support of the USA, following terrorist attacks on 11 September 2001, and the recent deployment to southern Afghanistan as part of the UNSC authorised operation, the International Security Force in Afghanistan (ISAF).

There were numerous other minor deployments including very small numbers of personnel deployed, for example as a part of the cease-fire monitoring force sent under UN auspices to Western Sahara. In the period from 1991 to 2005, there was no action in self-defence against an attack against United Kingdom territory. Where action was taken by British decision and British forces alone, it was almost always for the protection of British nationals. The operations involved all three services, sometimes acting together. Forces were sometimes sent out, especially naval vessels, in anticipation of a need for action (usually evacuation) which did not materialise. The information provided by the MOD did not include information about Special Forces operations, the strategic deterrent and routine maritime policing, or about training missions and humanitarian (disaster relief) operations. The MOD was unable to identify what procedures had been followed to inform Parliament of the deployments summarised in its list, but it seems to us that nearly all could have been subject to prior parliamentary notification without jeopardizing the security of the deployments.

DEPLOYMENT AND DOMESTIC LAW

28. As noted in paragraph 15 above, the United Kingdom's courts have taken the view that the exercise of the deployment power is neither justiciable nor subject to review in domestic courts. In consequence, not only is the exercise of the power immune from judicial review, but such actions are legal as a matter of domestic law. This in turn means that acts by individual members of the armed forces, of whatever rank, in the execution of a deployment order are themselves lawful. A serviceman is protected from legal liability for the discharge of his orders: a killing in action in the course of the conflict will be justifiable homicide not murder; certain detentions will be lawful and not amount to false imprisonment. This also means, however, that it is not open to a member of the armed forces to rely on domestic law to refuse to obey an order consequent upon a deployment, because such orders are lawful.[24] The present position holds out certainty for troops about their individual liability in conflict situations.

29. In chapter 4 we consider the legal implications of putting the deployment power on a statutory footing. It is worth noting here, however, that some witnesses were concerned that the introduction of legal standards by which to judge the lawfulness of a deployment could undermine the legal certainty mentioned above. Professor Rowe, for example, said that "if the law is changed or the constitutional arrangements are changed so as to make the situation less clear to the soldier, I think that is a retrograde step."[25]

INTERNATIONAL LAW

30. Given the absence of legal restraint on the deployment power under domestic law, the rules of international law on the use of force take on an enhanced significance as the only apparent limitation on the prerogative. Domestic legality does not pre-empt international law. In other words action, which may not be unlawful under domestic law, could be in violation of international law. In this context, it is necessary to make a distinction between those rules which regulate the right of states to use military force and those—the laws of war or International Humanitarian Law (IHL)—which govern the conduct of hostilities and certain other matters, such as the occupation of foreign territory. As regards deployment powers, the centrepiece of international law is the United Nations Charter, which states that "all Members shall settle their international disputes by peaceful means" (Article 2(3)), and that "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" (Article 2(4)). Article 51 allows for "the inherent right of individual or collective self-defence".

31. There is no international court with automatic jurisdiction over states and it would be unusual for action against a state about the lawfulness of a use of force to reach the International Court of Justice—though not impossible: at one stage, the United Kingdom was a defendant in an action brought by Serbia, which argued that the bombing of its territory in 1999 (in connection with events in Kosovo) was contrary to international law. The International Criminal Court (ICC), which has jurisdiction over individuals rather than states, does not presently have jurisdiction over "aggression" (though work is going on to set that up). The UN Security Council is a political body which does not reach authoritative conclusions on the law, though it may, for its own purposes, determine that an "act of aggression" has occurred. The powers of the Security Council under Chapter VII extend to imposing mandatory non-forcible measures against a state (such as a trade embargo) and to authorising States to use force against or on the territory of another state under a mandate established by the Council. Decisions of the Security Council under Chapter VII are subject to the veto of the permanent members, so that authorisation to use force depends on no permanent member being opposed to a proposal to authorise its use.

32. The situation is different, however, in the case of breaches of IHL. The Minister of State for the armed forces told us that "once a conflict actually begins, whatever the legal basis for this participation, it is conduct by all participants as required by the body of law in rules known as the International Humanitarian Law. The four Geneva Conventions of 1949 are a part of that IHL. The United Kingdom is also bound by a number of other conventions and protocols, such as the first additional protocol to the Geneva Conventions … Those are not our laws. We apply them. Those have been defined elsewhere and we simply live within them, so to speak". Mr Ingram added that "all of our personnel are so trained in understanding the basis upon which they are having to conduct themselves in a conflict situation and it is very much part of the whole training process"[26]. Individuals (and in some cases their commanders) suspected of violations of IHL such as killing prisoners of war, the ill-treatment of detainees in occupied territory or the use of prohibited weapons must be considered for prosecution in national courts. The Government has said, in the context of the ICC, that all allegations of this kind would be stringently investigated and, where appropriate, criminal proceedings instigated. This duty, which mainly derives from the Geneva Conventions, has gained in importance following the United Kingdom's acceptance of the Statute of the ICC. The prosecution of those alleged to be responsible for serious violations of IHL is within the jurisdiction of the ICC, but only where the proceedings in national law have been unsatisfactory or non-existent. The Government's position has been that there will never be prosecutions against British servicemen before the ICC because there always will be adequate national investigations, followed, where required, by prosecutions.

33. It is clear from paragraph 32 above that it is difficult if not impossible to adjudicate on the lawfulness of a state's decision to deploy forces into conflict. In reality, judgements are usually political ones taken at the United Nations. General Assembly resolutions have no legal status, but a Security Council decision—whether ordering an aggressor to desist or authorising deployment of force to repel him—has the force of international law. If a government, in the absence of a specific resolution or in doubt about the applicability of an existing one, wished to verify whether contemplated action was consistent with the provisions of international law, it would need to take expert advice. In the case of the United Kingdom, this advice would be provided, confidentially, by the Attorney-General.

34. We consider the provision of legal advice in more detail in chapter 4, in particular the Attorney-General's duty to Parliament, but it is relevant here to note that the Attorney-General's duty to the Government is to offer advice on the facts, not the tactics: Lord Goldsmith emphasised that "it is not the Attorney-General's job to construct a legal case for a policy which in fact does not have a proper legal base … It is the job of the Attorney-General to give his best and honest independent opinion of whether or not the course of action which he is being asked to advise on is lawful or not."[27]

15 Volume II: Evidence, Q 131 Back

16 Volume II: Evidence, Q 124 Back

17 Ibid Back

18 Volume II: Evidence, Q 87 Back

19 Volume II: Evidence, Page 131. Back

20 Dr Kim Howells, MP, Minister of State, Foreign and Commonwealth Office. Back

21 Volume II: Evidence, Q 131 Back

22 Human Security Report 2005: War and Peace in the 21st Century, University of British Columbia, Canada Back

23 Ibid, page 26 and Figure 1.3 Back

24 On 13 April 2006, Flt Lt Malcolm Kendall-Smith was jailed by a court martial for refusing to obey orders relating to his return to Iraq. Kendall-Smith's defence that the attack on Iraq was unlawful under international law was dismissed as irrelevant to the reasons for the present deployment of British forces in Iraq. There was no argument based on illegality in UK law which he could have raised (www.bbc.co.uk/1/hi/scotland/4832282.stm). Back

25 Volume II: Evidence, Q 75 Back

26 Volume II: Evidence, Q 302 Back