UK House of Commons debate on the use of force in Iraq, 26 September 2014

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On September 26th, the UK House of Commons will debate a Parliamentary motion which seeks to authorise:

Her Majesty’s government, working with allies, in supporting the government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq.

The motion expressly states that it does not endorse air strikes in Syria, the authorisation for which would require a separate vote in Parliament, and that the government will not deploy UK troops in ground combat operations. The text of the motion is here. The UK government’s legal position is that there is “a clear and unequivocal legal basis for deployment of UK forces”.  A summary of this position is here.

So what do you think?

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  • Armed Conflict
  • Iraq
  • Terrorism
  • Use of Force

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    Jordan says

    September 25, 2014

    I suspect that you mean Sept. 26th. In any event, this is what I think about the legality of collective self-defense in Iraq and Syria:

    New posting at JURIST is available here: http://jurist.org/forum/2014/09/jordan-paust-war-lawful.php

    Jordan says

    September 26, 2014

    This is the relevant portion of the Jurist essay:
    Under international law, it is the fact of war that compels the legal conclusion that war exists and, importantly, that the laws of war apply. At this moment, the United States is engaged in an international armed conflict in Iraq and Syria to which all of the customary laws of war apply as well as several treaty-based rules of war. Under international law, the United States is also engaged in measures of collective self-defense with the consent of Iraq against ongoing ISIS armed attacks on the Iraqi government that also happen to be partly planned and emanate from Syria. The Russians are wrong that these measures of collective self-defense are not lawful under the United Nations Charter and that the U.S. must have authorization from the U.N. Security Council. Article 51 of the United Nations Charter expressly recognizes the inherent right of member states to engage in responsive measures of self and collective self-defense if an armed attack occurs. Quite clearly, ISIS is engaged in armed attacks against Iraq and, because the attacks are partly planned and partly emanate from Syria, selective use of force against ISIS in Syria as a matter of collective self-defense is also permissible and the United States did not need special consent from the Assad government and is not at war with his regime.
    Further, if the United States was not participating in what is known as an international armed conflict in Iraq and Syria, U.S. military personnel would be placed in harms way. It is only during such an armed conflict that U.S. military personnel would have pow status, combatant status, and combatant immunity for lawful acts of war. Claiming that the U.S. is not participating in an international armed conflict would be against common sense, contrary to international law, and remarkably inconsistent with the national security and foreign policy interests of the United States.

    Barrie Sander says

    September 27, 2014

    Is this an opportunity for international lawyers to resist the traditional pull of focusing on the legal basis for military action and to refocus the debate instead on other more systemic issues, such as what conditions led to the rise of ISIS/ISIL, as well as on more strategic issues, such as what are the objectives of military action, are these objectives best achieved through military engagement, and is there a plan for the aftermath?

    As David Kennedy put it, with respect to the last military action with respect to Iraq, "[O]pponents of the Iraq war were themselves blown off track by their humanitarian expertise. The war would not have made any more sense, after all, had it been approved by the United Nations apparatus. More importantly, the Charter scheme had the unfortunate effect of changing the subject. [...] In political terms, humanitarian expertise gave progressives an easy and irresponsible way out. We never needed to ask: how should the regimes of the Middle East - our regimes - be changed? Is Iraq the place to start? Is military intervention the way to do it?" In other words, those opposing the last war in Iraq asked the wrong questions, focusing on the "is it legal?" question rather than the "is this is a good idea?" question.

    Yes, the context and nature of military action proposed today is different, but the magnetic force of the traditional questions asked by the vocabulary of international law remains; to focus on the legal basis for war may have a similar obscurantist effect.

    [For those interested, the Kennedy reference is: D. Kennedy, 'Challenging Expert Rule: The Politics of Global Governance', 27 Sydney Law Review (2005) 5, at 25-26]

    Lorand Bartels says

    September 27, 2014

    Barrie, call me narrow-minded, but I wouldn't ask an international lawyer those questions any more than I would ask an architect or an electrician. I would by contrast ask an international lawyer about the legality of a military intervention. Nor would I assume that international lawyers are necessarily for or against any given policy - although I suppose I would go as far as to expect that they would probably prefer legal to illegal activities. Lorand

    Hemi Mistry says

    September 29, 2014

    Barrie, Lorand - perhaps the more appropriate question for international lawyers to consider is to what extent (if at all) the law as it has operated contributed to the conditions that gave rise to ISIS/ISIL, rather than the more general question of 'what are the systemic reasons that gave rise to ISIL/ISIS?
    And on that basis - should there be any change to the law, and if so, the nature of that change?

    Jordan says

    September 30, 2014

    Hemi, et al.: these are important questions, although I tend to agree with Lorand.
    In any event, did the U.N. Charter contribute to the rise of ISIS? Did the veto power in the Security Council? Did the general acceptance of the Assad regime (and all other anti-democratic regimes around the world) within a U.N. process contribute? Did the lack of adequate effectuation of human rights for all persons as guaranteed in Articles 55(c) and 56 of the U.N. Charter? Did the lack of adequate effectuation of self-determination of peoples that has a basis in the U.N. Charter? Did the lack of adequate prosecution of most who are reasonably accused of crimes against humanity and war crimes (even including the former President and Vice-President of the United States and their entourage)?