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  • Nigel D White (a1)

This short article considers the two primary legal frameworks that can operate to control decisions by a State, in this case the UK, to deploy troops to conflict or post-conflict zones—British constitutional law and international law, and how they have both been thrown into sharp relief by the continuing debate about the possible adoption by the House of Commons of a non-statutory war powers resolution.

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1 See Conservative Democracy Task Force, An End to Sofa Government: Better Working of Prime Minister and Cabinet (2006).

2 The jus ad bellum and the jus in bello respectively—see Y Dinstein, War, Aggression and Self-Defence (4th edn, CUP, Cambridge, 2005), and Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP, Cambridge, 2004). For arguments that there is an emerging legal regime to govern post-conflict situations—a jus post bellum—see C Stahn and JK Kleffner (eds), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (TMC Asser, The Hague, 2008).

3 AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, London, 1959) 424–425.

4 AW Bradley and KD Ewing, Constitutional and Administrative Law (14th edn, Longman, London, 2007) 323.

5 China Navigation Co Ltd v Attorney General [1932] 2 K.B. 197 (Court of Appeal). Chandler v Director of Public Prosecutions [1964] AC 736 (House of Lords). See P Rowe, Defence: The Legal Implications (Brassey's, London, 1987) 3. There is a discernible trend to review the prerogative in other areas—L Lester and D Oliver (eds), Constitutional Law and Human Rights (Butterworths, London, 1997) 250.

6 Bradley and Ewing (n 4) 343.

7 S De Smith and R Brazier, Constitutional and Administrative Law (8th edn, Penguin, London, 1998) 217.

8 Hansard, HC vol 23, cols 597–8 (11 May 1982).

9 HC Foreign Affairs Committee, Fourth Report 1999–2000, HC 28-I, para 166 (7 June 2000).

10 HC Research Paper 08/88, ‘Parliamentary Approval for Deploying the Armed Forces: An Introduction to the Issues’ 14 (27 November 2008).

11 FW Maitland, The Constitutional History of England (CUP, Cambridge, 1931) 197–199.

12 ibid 324–329.

13 S Marks, The Riddle of All Constitutions (OUP, Oxford, 2000) 100.

14 Corfu Channel Case (Merits), 1949 ICJ Rep 4 17–22, 35.

15 ND White, Democracy Goes to War: British Military Deployments under International Law (Oxford University Press, Oxford, 2009) 48, n 76. In 1992, the parties to the Corfu Channel case announced that they had settled their differences and in 1996 the Albanian Government settled the British claim for compensation by paying $US 2 million—see Hansard HC vol 284 col 224WA (31 October 1996) in (1996) 67 Brit YB Int L 818–819.

16 On 16 October 1956 at a meeting of ministers cited in A Nutting, No End of a Lesson: The Story of Suez (Constable, London, 1967) 95. On the legal advice given in 1956, see G Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: Legal Advice Tendered to the British Government’ (1988) 37 ICLQ 807, where it is stated that ‘the Law Officers [the Attorney General and the Solicitor General] were considering whether to resign’ given their doubts about the legality of the intervention war as stated by the Lord Chancellor (Viscount Kilmuir) who justified the intervention in the House of Lords as being one of ‘self-defence [which] includes a situation in which the lives of a State's nationals abroad are threatened and it is necessary to intervene on that territory for their protection’—Hansard HL vol 199 cols 1349–50 (1 November 1956).

17 Hansard HC vol 558 cols 311–12 (13 September 1956); Hansard HC vol 558 col 1378 (30 October 1956).

18 White (n 15) 49–53.

19 HC Foreign Affairs Select Committee (n 9), paras 124–144.

20 White (n 15) 225–235.

21 UN Charter 1945, arts 2(4), 42 and 51.

22 W Little, ‘Anglo-Argentine Relations and the Management of the Falklands Question’ in P Byrd (ed), British Foreign Policy under Thatcher (Philip Allan, Oxford, 1988) 138.

23 Hansard HC vol 73 cols 732–836 (18 Feb 1985); White (n 15) 173–182.

24 Hansard HC vol 372 col 814 (8 October 2001).

25 Starting with SC Res 1386 (20 Dec 2001); White (n 15) 200–204.

26 Hansard HC vol 477 cols 485–490 (5 July 1950); White (n 15) 96–104.

27 Hansard HC vol 177 col 883 (7 Sept. 1990); Hansard HC vol 183 cols 743 (15 Jan 1991); Hansard HC vol 185 col 31 (21 Jan 1991).

28 Prime Minister Gordon Brown announced the establishment of the inquiry in the House of Commons on 15 June 2009, its terms of reference being ‘to consider the period from summer 2001, before military operations began in March 2003, and the UK's subsequent involvement in Iraq up to the end of July 2009. The Prime Minister told the House of Commons: “the Iraq Inquiry will look at the run-up to the conflict, the conflict itself and the reconstruction.” The objective is to learn the lessons from the events surrounding the conflict’—

29 See evidence given to the Inquiry by Sir Michael Wood, Foreign Office Legal Adviser in 2003, on 26 January 2010,; and Elizabeth Wilmshurst, Deputy Legal Adviser at the FCO in 2003— Both considered the use of force to be illegal as a matter of international law. For Lord Goldsmith's (the Attorney-General at the time) more equivocal evidence of 27 January 2010 see The Attorney General's advice released on 17 March 2003 was to the effect that the authority to use force against Iraq given in SC Resolution 678 (1990) was revived by a material breach by Iraq of Resolution 1441 (2002) and earlier disarmament resolutions—see Hansard HC vol 401 col 760 (18 March 2003) when Prime Minister Tony Blair relied on this argument in proposing a substantive vote. The Attorney General's full advice was not released until 28 April 2005, in which, in contrast, he concluded that ‘if the matter ever came before a court’, that court ‘may well’ conclude that Resolution 1441 did require a ‘further Council decision in order to revive the authorization in’ Resolution 687;

30 Hansard HC vol 401 cols 906–11 (18 March 2003).

31 Hansard HC vol 401 cols 760–4 (18 March 2003).

32 White (n 15) 252–264. See also D McGoldrick, From 9-11 to the Iraq War 2003 (Hart, Oxford, 2004) 47–86.

33 The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom [2002] EWHC 2777, para 44.

34 R v Jones [2006] UKHL 16, paras 29–30.

35 The case of Baha Mousa who died while in a British detention facility in Iraq—R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26. The case is pending before the Grand Chamber of the European Court of Human Rights (Application No. 55721/07); and is subject to a public inquiry in the UK established by the Secretary of State for Defence in May 2008;

36 The case of Private Jason Smith who died of heat stroke in a British camp in Iraq—R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner [2009] EWCA Civ 441. The case was heard by the UK Supreme Court in March 2010.

37 R (Gentle) v The Prime Minister [2008] UKHL 20, paras 8, 47, 53–58.

38 Bradley and Ewing (n 4) 343.

39 HC Select Committee on Public Administration, ‘Taming the Prerogative: Strengthening Ministerial Accountability to Parliament’ HC 422, 3 (16 March 2004).

40 ibid 16.

41 ibid 35–36. See also Clare Short's Armed Force (Parliamentary Approval for Participation in Armed Conflict) Bill (22 June 2005) discussed in White (n 15) 277–278.

42 House of Lords Select Committee on the Constitution, ‘Waging War: Parliament's Role and Responsibility’, 15th Report 2005-6, 27 HC 236-I, para 30 (27 July 2006).

43 See statement by Jack Straw MP, Minister of Justice, to the House of Commons on 20 July 2009, which included the section: ‘The Government have already announced that it would ensure that the Commons will have a pivotal position in determining whether the United Kingdom goes to war, by means of a war powers resolution. Drafts of this have already been published and will go before Parliament in the autumn’—Hansard HC vol 496 105 WS (20 July 2009). The draft resolution was not laid before Parliament before its dissolution on 12 April 2010.

44 UK Ministry of Justice, ‘The Governance of Britain—Draft Constitutional Renewal Bill’ Command Paper 7342 (March 2008), Annex A. See further Ministry of Justice, ‘The Governance of Britain Review of the Executive Royal Prerogative Powers’: Final Report, 15 (15 October 2009).

45 Parliamentary debates on the Constitutional Reform and Governance Bill in 2009-10 contained statements expressing regret that the issue of war powers reform was not included in the Bill. For example in the House of Commons, David Howarth MP stated that it was ‘disappointing that the Government’ had ‘chosen not to move on other aspects of the prerogative on which they have promised to move since at least 2007 and earlier, such as war powers...’—Hansard HC vol 506 col 909 (2 March 2010). In the House of Lords, the Earl of Sandwich asked the Government to explain why it has not ‘revised let alone published the draft resolution that would give Parliament a more formal vote in the process of deploying our armed forces outside the United Kingdom’; and went on to say that ‘against the background of the Iraq War, this’ would have been ‘an important concession from the Government; it must not be allowed to disappear just because of the passage of time and when another conflict may be around the corner’—Hansard HL vol 718 col 1035 (24 March 2010). The Government Minister in the House of Lords (Lord Bach) responded that ‘war powers were never in the draft Bill’ being debated, and that the ‘Government had concluded that they should be dealt with by way of parliamentary resolution’ rather than legislation (col 1047). In an earlier debate in the House of Lords on constitutional reform Lord Tyler lamented the disappearance of proposals that would give a statutory right for MPs to vote on decisions to go to war—Hansard HL vol 716 col 1558 (28 January 2010).

46 The Conservative/ Liberal Democrat Coalition Agreement of 11 May 2010 did not mention the issue of war powers reform amongst its wide-ranging provisions on political reform—see

The paper draws upon material in ND White, Democracy Goes to War: British Military Deployments under International Law (OUP, Oxford, 2009), and is based on papers given at the Universities of Maastricht and Uppsala.

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International & Comparative Law Quarterly
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