Please note that this piece was published on the UK Constitutional Law Association’s blog on 28 November 2015, and is available here. It has been re-published here with the permission of the author.
By Veronika Fikfak
Next week Members of Parliament will debate and vote on whether to support the Government’s proposal to extend military action against Islamic State (IS) to Syria. On Thursday, the Prime Minister made his case to the House, relying on the new Security Council Resolution to insist that the intervention would be legal. In this post, I analyse the limits of this argument, showing that the Resolution adopted by the Security Council does not unequivocally make the use of force legal. More importantly, however, I make the case that next week MPs should not limit their questions and therefore scrutiny of the Government’s proposals to international (legal) questions but rather turn their attention inwards – to domestic interest, concerns and implications of any future action.
1. The questionable legality of military action under UN Security Council Resolution 2249 (2015)
In his address to Parliament, David Cameron insisted that the UN SC Resolution provides a legal basis for military action. As others have already noted, however, the Resolution adopted by the Security Council is an unprecedented measure. Although the wording of the Resolution suggests some support for the use of force, neither the acknowledgment that IS constitutes a ‘global and unprecedented threat to international peace and security’ nor the unanimity with which it was adopted provide a legal basis for the use of force against IS either in Syria or in Iraq (source). In short, the Resolution does not actually authorise force.
Under the UN Charter, the use of force is legal if it is exercised in self-defence in response to an armed attack (under Article 51 of the Charter) or if it has been authorised by the Security Council under Chapter VII of the Charter. The Council does not have the power to impose an obligation on states to use military action against other states. Instead, once it has established that a ‘threat to international peace and security’ exists, it can authorise the state to adopt measures such as interruption of economic relations and severance of diplomatic relations before any use of force is authorised. Only after these have proved inadequate, the Council authorises states to take ‘all measures necessary’, code for use of military action to respond to the threat to international peace.
In Resolution 2249 the Council adopted the following paragraph. It:
5. Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria.
It is important to note firstly, that the Resolution was not adopted under Chapter VII, although it uses the forms reserved for that chapter, namely the recognition of the existence of ‘threat to international peace and security’ and the phrase ‘all means necessary’. Akande and Milanovic have commented that this is rather novel. From the domestic position, however, what is crucial is that the Council does not use the terms ‘authorise’ or ‘decide’ which are usually attached to Chapter VII measures. In fact, it merely calls on states to do ‘whatever they can already do’ under international law. As Akande and Milanovic conclude:
The Resolution is constructed in such a way that it can be used to provide political support for military action, without actually endorsing any particular legal theory on which such action can be based or providing legal authority from the Council itself. The creative ambiguity in this resolution lies not only in the fact that it does not legally endorse military action, while appearing to give Council support to action being taken, but also that it allows for continuing disagreement as to the legality of those actions.
The resolution is therefore ambiguous and does not provide an uncontroverted legal basis for military action. Even if—as Prime Minister Cameron argues—the Resolution provides an undisputable legal basis for the use of force, by virtue of Articles 25 and 49 of the Charter the only obligation imposed on Members States of the United Nations is to accept and afford mutual assistance in the carrying out of such an authorisation. The resolution therefore does not impose an obligation of military action on the UK. It does not bind the UK to use force—rather, it at most empowers it should it decide to join in.
This is worth repeating: even when the legal basis for the use of force is clear no international obligation to use force arises. It is for each state separately to decide whether it will contribute its forces to the international coalition or not. The ultimate decision to join in—to participate in military action—is therefore a domestic decision, not an international one.
2. The uncertain role for Parliament in the decision for military action
During the last few years, governments have sometimes sought parliamentary support prior to the deployment of troops abroad. The inclusion of Parliament in the process has been hailed as an important constitutional moment, suggesting the creation of a new convention whereby Parliament is consulted prior to the start of military action or deployment of troops. The last time Parliament voted in relation to Syria in 2013, the Government failed to secure support for the intervention due to a revolt from the backbenchers. Cameron—following a promise he had made to the public—said he would respect the vote and decided against military action. According to the newspapers, Parliament had won.
On Thursday, the Prime Minister in his statement to the House insisted that he would not put the issue to a vote unless an overwhelming majority supported the action. Yet, whilst the 2013 Syrian vote and subsequent decision of the PM to follow Parliament’s position were encouraging for the institution of Parliament, his statement suggests that Parliament is (mis)used strategically to agree with a decision already having been made; i.e. to act as a rubber stamp of a fait accompli. This, of course, is of concern to the institution of Parliament and its members.
Cameron perhaps believes that parliamentary engagement which supports military action has a symbolic value. It provides support and expresses unity of a nation at a time of war. Lack of an overwhelming support would cause embarrassment to the country when it needs to give the appearance of bi-partisan support and unity. The implicit responsibility of MPs is therefore to ‘rally behind the Crown’, to accept the ‘wisdom of the policy’ which the Government proposes and withhold from unnecessarily pressing the Government on the issue.
Yet, such a position is clearly erroneous and potentially demeans the House. Firstly, the country is not at war or in a situation of self-defence, in which the need would arise to give the appearance of bi-partisanship and unity. In this regard, Syria is unlike the Falklands or Afghanistan. Secondly, Cameron appears to be conditioning the involvement of Parliament in debating and voting on the issue of war and deployment of troops on a positive outcome. Is his position therefore that Parliament’s role in relation to war is limited to legitimising decisions already taken by the government? And is he not—implicitly—undermining the emergence of the consultation convention which was acknowledged by the Foreign Affairs Committee (House of Commons Political and Constitutional Reform Committee, Role and powers of the Prime Minister Report 2014, para. 87)?
The decision to go to war is indeed one for the Government to make. But recent involvement of Parliament suggests that governments are keen to have Parliament support military troops and actions. As one military general put it, without such support, the morale of military personnel would be seriously affected and this would potentially endanger their position on the ground. Yet, if reliance on Parliament is limited to situations in which it agrees with the Government, surely this also undermines the role of Parliament as an institution scrutinising the Government and holding it to account.
3. Parliament’s role in re-defining its position
The Government may be using Parliament strategically. Yet, members of the House do not have to be complicit in this treatment. MPs can actively query the policy of the Government, its long-term strategy, the availability of intelligence and its reliability. These elements have all proven problematic in previous disputes. Most importantly, MPs should consider the question of deployment of troops or war as a domestic political, rather than international legal question.
As a rule, the debate in the House is often limited to queries about the international legality of military action. When no authorisation is forthcoming, MPs usually insist on the Government proving international consensus or seeking unequivocal authorisation under Article 42 of the UN Charter. References to Article 51 and Chapter VII of the Charter are most frequent. When authorisation is provided, the House is usually satisfied that the ‘legality’ is established and the rest of the debate is usually limited to the make-up of the international coalition. This international focus or lens through which disputes and conflicts are viewed necessarily affects the manner in which we approach the issue of use of force. War is about ‘helping friends’, ‘fulfilling commitments’ or ‘international obligations’, avoiding ‘humanitarian catastrophe and disaster’, ‘genocide’ etc.
What is lost amidst all of this international legal discussion are the questions that are purely domestic in nature: what is the risk to military troops, what are the economic and budgetary implications of waging a war or the potential long term effects of intervention, what is the opinion of the home public and finally, what is the direct British interest?
In the 2013 debate on Syria, the focus was on the lack of an international basis for intervention. Due to the Russian veto, the Security Council had failed numerous times to adopt a resolution authorising force against Assad and MPs refused to provide support for deployment of troops without a clear legal basis. Next week MPs will be asked to vote again. This time they will have to decide: (a) whether the international legal basis for intervention is any clearer, (b) whether their institutional role is limited to legitimising decisions of the government, and (c) whether domestic concerns, interests, risks, and opinions should be taken into account before deciding on whether to support the Government’s case for military action. The answers to these questions will have important implications not only for IS, but also for the institution of Parliament and its position in the constitutional landscape in the UK.
Dr Veronika Fikfak is a Lecturer in Law and ESRC Future Research Leader at the University of Cambridge. She is currently co-authoring a monograph on the role of Parliament in relation to war with Dr Hayley J. Hooper entitled Parliament’s Secret War (forthcoming 2016 Hart Bloomsbury). The two have recently discussed Parliament’s role in voting on the Syrian conflict as part of the Law in Focus series at the University of Cambridge, a video of which you can watch here.