Written evidence from the United Nations Association UK (UMF 15)

Public Administration and Constitutional Affairs Committee

The Role of Parliament in the UK Constitution: Authorising the Use of Military Force inquiry

Introduction

1. UNA-UK[1] is pleased to submit evidence to the Committee’s inquiry into the Role of Parliament in the UK constitution: Authorising the Use of Military Force.

2. UNA-UK provided written evidence to the House of Common’s Foreign Affairs Committee’s inquiry into the principles of humanitarian intervention and the responsibility to protect.[2] In that evidence (paras 33-56) we outlined the applicable elements of international humanitarian law and the global norms around the use of force.

3. Article 2 (4) of the UN Charter prohibits the use of force for any reason other than self defence unless authorised by a Security Council resolution as permitted under Article 42 of the UN Charter. The use of force in other circumstances is prohibited under international law.

4. However, the United Kingdom has been at the vanguard of efforts to have the doctrine of humanitarian intervention be recognised as an exceptional circumstance in which force could also be used. Customary international law consists of customs developed from state practice, and so the United Kingdom could lead the development of this exception, but only if it was able to persuade a significant other number of nation states of the validity of its argument. The UK has, thus far, made little effort to persuade the international community in this regard, and mechanisms for doing so (such as the Uniting for Peace process for seeking approval from the General Assembly)[3] have not been explored.

5. Particularly now that the Kampala amendments to the Rome Statute of the International Criminal Court have come into force, allowing prosecution for the crime of aggression, any deviation from clearly established customary international law comes at a significant cost to the UK’s international political capital and credibility, particularly as a custodian of a “Rules Based Global System” - in the words of the UK’s National Security Strategy.[4] This cost needs to be weighed against the costs of taking no action or a different form of action. This can frequently be a difficult balance in which it is vital that Parliament play a key role.

6. Parliamentary debates in such matters can also help in the development of new global norms around the use of force, by clarifying the Government’s position with respect to relevant international standards and laws, and the legal basis for its decision.

7. It would therefore be good practice for the Government to publish its legal basis for military action in advance of any parliamentary debate, as it did in April 2018, and in advance of any military action, to allow parliamentarians to scrutinise any deviation from well established international customs and to weigh those costs against other factors.

8. The lesson from the UK’s decision to publish its legal opinion in advance of the airstrikes it undertook in Syria in 2018 is that confident and unambiguous legal argument is helpful in providing much needed clarity on the Government’s approach and understanding of these issues. However, for the UK to overclaim the actions of a very small group of states as already constituting a new standard of customary international law can be perceived as arrogant, particularly when paired with minimal-to-no attempts at developing an international coalition of support for the idea, and dismissal of mechanisms for doing so, such as Uniting for Peace.

9. A presentation by the Attorney General[5] on the legal basis for the use of force would logically form an element of any parliamentary debate on the use of force. Another logical element would be a presentation by the Foreign Secretary on what efforts the Government has undertaken to build support for its position in international forums such as the UN Security Council and the UN General Assembly.

10. There are a number of steps that could be taken to improve the due process of the decision to use force, and so provide opportunities for more meaningful and earlier engagement by parliamentarians. These include:
1. The implementation of the recommendations of the Chilcott Inquiry into the Iraq war, particularly those in Section 7[6] relating to decision-making.
2. The creation of a cross departmental atrocity prevention strategy, with suitable resourcing and staffing, to ensure that any decision to use force for purposes of humanitarian intervention takes place as part of a holistic approach to preventing atrocities and reducing the intensity of related conflict.

11. It would therefore be appropriate for Parliament to ensure that any debate on the use of force considers how this use of force fits in with the Government’s strategy for the prevention of atrocities. A logical element of such a debate would be a presentation by the minister with responsibility for atrocity prevention[7] on this subject.

March 2019