Supplementary memorandum by Elizabeth
Wilmshurst
At the Evidence Session of the Committee on
7 December I was asked to provide comments on the Armed Forces
(Parliamentary Approval for Participation in Armed Conflict) Bill
(`the Bill'). I discuss below some questions which I believe are
raised both by the Bill and by any proposal for legislation requiring
Parliamentary approval for certain kinds of military deployment.
FOR WHAT
KIND OF
ACTION SHOULD
PARLIAMENTARY APPROVAL
BE REQUIRED?
1. The scope of a requirement to obtain
Parliamentary approval is perhaps the most difficult issue to
be decided in relation to any future legislation.
2. The Bill requires approval to be obtained
when UK armed forces participate in armed conflict. Conflict is
defined as meaning "any use of force which gives rise, or
may give rise, to a situation of armed conflict to which the Geneva
Conventions of 1949 or the Additional Protocols of 1977 apply".
3. The Geneva Conventions and Protocols
do not themselves provide a definition of conflict and it is notoriously
difficult to decide when violence has reached a threshold where
there is a "conflict" between parties, as opposed to
disorganised violence of low-level intensity. For example, is
there a conflict in all parts of Afghanistan or just in some?
It may be that not all members of NATO would agree on the answer
to that. Is there a conflict in all parts of Iraq, including in
the North? Difficult questions on the existence of a conflict
could no doubt be submitted to the courts on judicial review,
but a clearer trigger for Parliamentary approval would be desirable
if it can be achieved.
4. The approaches of other states have been
examined by the Committee. The German law[142]
requires Parliamentary consent for each military deployment
abroad where soldiers are included in armed operations or
where such inclusion is expected. Specifically excluded from the
requirement are preparatory measures and planning, humanitarian
services and assistance of the army where weapons are carried
solely for self-defence and the soldiers are not expected to be
involved in armed action. The Spanish law requires authorisation
for operations or missions abroad; the wording would seem
to include military observers and assistance with humanitarian
aid. The Dutch have a similarly broad provision.[143]
In Sweden the deployment of Swedish troops abroad, which otherwise
requires Parliamentary consent, has been delegated to the Government
by legislation in the case of peacekeeping forces abroad at the
request of the OSCE or the UN and in the case of participation
abroad in training exercises for peace-enhancing activities.
5. For what kinds of military deployments
is it appropriate to require the approval of Parliament in this
country? The question of principle and policy needs to be answered
before the formulation of any provision is addressed.
— But it may be easier to arrive at
a clearer provision than that in the Bill if an approach similar
to the German one is used: that is, to require approval for all
deployments for armed operations to countries other than the UK,
with certain specified exceptions. Use of troops for military
and training exercises, stationing under status of forces agreements
(eg NATO), advisory functions and defence diplomacy would not
be included in the term "deployment for armed operations".
There would need to be a list of exceptions, but it may be easier
to draft exceptions to a wide category (deployment for armed operations)
rather than to try to draft, as the Bill does, a sufficiently
clear exhaustive requirement (participation in conflict). If such
an approach were to be taken, the following might be included
in the list of exceptions not requiring approval from Parliament:
assistance with humanitarian operations, policing operations in
aid of the civil authority, operations under a UN mandate except
for one authorised under Chapter VII of the UN Charter (for Chapter
VII deployments approval would be required). ("Country"
would have to be widely defined, but it may be useful thereby
to exclude the high seas).
— The legislation might also provide
for adding to the list of exceptions by Order in Council approved
by each House of Parliament. The advantage of that procedure of
course is that Orders could be amended more easily than amending
an Act, if the kinds of military operation, or views on them,
change in the future.
6. The timing of a request for Parliamentary
approval has to be considered along with the trigger for the request.
To ask for approval for participation in a conflict may risk exacerbating
a situation by debating the matter in Parliament at a difficult
time; to choose a time which is neither too early nor too late
may not be easy. It is however difficult to see how to avoid this
potential problem; it does not seem possible to remove it by the
manner of drafting.
7. In relation to almost any requirement
for Parliamentary approval the issue of the use of special forces
will need to be separately considered.
8. The Bill does not provide for Parliamentary
approval for UK participation in a conflict other than by its
own forces: that is, approval would not be required for use by
an ally of UK airfields to launch an attack against another country.
Should it?
WHAT SHOULD
BE THE
LEGAL CONSEQUENCES
OF FAILURE
TO OBTAIN
APPROVAL?
9. The formulation in the Bill ("shall
be unlawful...") has the consequence that troops themselves
are acting unlawfully if the government fails to obtain Parliamentary
approval. Is that desirable? An alternative approach would be
to impose a duty on the government to obtain Parliamentary approval,
and to specify elsewhere that no provision in the Bill renders
the military liable if approval is not obtained. Clause 8 of the
Bill would have to be revisited if this approach were to be followed.
10. In discussing legal consequences in
this context, there needs to be care not to confuse different
questions of law.
(i) Whether or not an armed conflict is lawful
in international law has to be assessed independently from the
question of legality under domestic law. (Consequently the reference
in clause 2(b) to legal authority should be amended to make clear
that it is a reference to international law.) If Parliament approves
participation in a conflict, that in itself does not mean that
it is internationally lawful; if Parliament disapproves, that
does not answer the question whether the UK may lawfully participate
in the conflict in accordance with international law.
(ii) Whether or not Parliamentary approval
is obtained, the troops in a conflict must comply with international
law and domestic law regarding the conduct of the conflict: that
is, they must not commit war crimes.
WHAT PROCEDURE
SHOULD BE
USED?
11. Careful consideration needs to be given
to whether the approval of both Houses of Parliament is required.
Should the Lords be given a veto in circumstances in which there
is no provision for the Parliament Acts procedure to be used,
so that the veto would be a veto indeed?
12. Secondly, the Bill provides for the
same procedure to be used whether or not the conflict is a major
one. The only exception to the requirement for prior approval
relates to matters of urgency. In cases of urgency, Parliament
would have to be recalled if not in session, even where the conflict
in question was a small one, or where it was uncertain whether
disorganised violence would develop into a conflict under the
Geneva Conventions.
— The German Act provides for a form
of simplified procedure for consent where deployment is of "low
intensity and importance"; consent is deemed to have been
granted unless Parliament takes action within seven days after
having been informed. A deployment is defined as of low intensity
and importance if the number of soldiers is small, it is of low
importance and if it is not participation in a war.
— Consideration might be given to such
a simplified procedure.
Caveat
13. This paper does not purport to give
views on all the points of drafting which arise from the Bill
and which may need consideration. Clause 4, for example, points
up the difficulties of reconciling Parliamentary control with
the realities on the ground, and would need to be considered in
detail at some stage.
January 2006
142 For this information I rely on the evidence given
to the Committee by Dr Ziegler. Back
143
For information on Spanish and Dutch legislation I rely on evidence
given by Professor Bell. Back
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