Quick war powers digest

Putting all my writing on parliamentary war powers in one place:

Action or inaction? What are May’s political options? Times Red Box, 12 April 2018: https://www.thetimes.co.uk/edition/news/james-strong-action-or-inaction-what-are-may-s-political-options-pb87brl8f 

Parliamentary war powers: The pros and cons, PSA Political Insight, 12 April 2018: https://www.psa.ac.uk/insight-plus/blog/parliamentary-war-powers-pros-and-cons

Key point: May’s best option in terms of domestic politics is to offer the US logistical and intelligence support, avoiding the need either to bypass parliament or to risk losing a vote. If she wants to do more than that, she’ll have to take significant political risks.

The war powers of the British parliament: What has been established, and what remains unclear? British Journal of Politics and International Relations, February 2018: http://journals.sagepub.com/doi/abs/10.1177/1369148117745767 (non-paywalled pre-publication version here: https://drjamesstrong.files.wordpress.com/2018/04/strong-war-powers-update-rev-final-as-submitted.pdf)

Key point: Parliament has no legal war powers, but most MPs expect a say over future military combat operations. Future governments will face two related choices – do they think they can afford to bypass MPs, and do they think they can win a vote? What they do will depend on how they answer these questions (we’re in scenario 4 right now):

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Interpreting the Syria vote: Parliament and British foreign policy, International Affairs, September 2015: https://onlinelibrary.wiley.com/doi/full/10.1111/1468-2346.12401

Key point: The Cameron government’s defeat over Syria said more about party politics than it did about military strategy. Had Cameron successfully done a deal with Ed Miliband, the 2013 Syria vote could have been won.

Why parliament now decides on war: Tracing the growth of the parliamentary prerogative through Syria, Libya and Iraq, British Journal of Politics and International Relations, June 2014: http://journals.sagepub.com/doi/abs/10.1111/1467-856X.12055

Key point: Cumulative precedents set in parliamentary votes on Iraq in 2003, Libya in 2011 and Syria in 2013 established a convention that MPs should have the chance to veto military combat deployments.

Theresa May’s options for military action in Syria

Tornado-jets
UK Ministry of Defence CC BY-SA 2.0

The prospect of UK military action against the Assad regime has returned to newspaper front pages. In light of parliament’s 2013 decision to block similar strikes, some Conservative MPs have argued that the Prime Minister should avoid a House of Commons vote, and rely on her authority under the Royal Prerogative to order British involvement. In this short post, I consider the different options available to May from a domestic politics perspective. I don’t touch on the strategic and legal difficulties with intervention against the Assad regime, but suffice to say these are considerable and largely unchanged since 2013.

Bypassing MPs is certainly an option, but it is not a straightforward one. A tentative convention has developed since MPs authorized the Iraq War in 2003 that parliament should sign off on the use of military force. It is recognized in the Cabinet Manual and has been endorsed by May’s own spokesman since she entered Downing Street. Many MPs do not even realize that their involvement in decisions on military action in Libya in 2011, Syria in 2013 (which they vetoed), Iraq in 2014 and Syria in 2015 derived from convention rather than law. Ignoring them would have political costs. May should not take this path without accepting that it might further undermine her shaky position in parliament, and without being willing to risk consequences up to and including a motion of no confidence.

Asking MPs for prior approval before joining US-led strikes also looks like a problematic option. It would be consistent with the War Powers Convention. But it seems highly likely that the government would struggle to win, just as David Cameron did in 2013. The government lacks an overall majority. While the DUP has supported military action in the past, it is not bound by the terms of its confidence-and-supply arrangement to support it in future. Its MPs have consistently argued that any use of force must be focused on upholding the national interest, and there is no direct British national interest at stake in Syria, at least as far as the Assad regime is concerned. The main opposition parties – Labour and the SNP – are likely to oppose further intervention in Syria. Labour leader Jeremy Corbyn has a strong track record of voting against military action – he was, for example, one of just thirteen MPs who opposed intervention in Libya. Though Labour split over action against Da’esh in 2015, with Shadow Foreign Secretary Hilary Benn leading 60+ Labour MPs in supporting the government, the party looks more united now and the moral case for action is weaker.

May could order the use of force, then seek retrospective approval from MPs. David Cameron did this over Libya in 2011 and in authorizing a UAV strike on Syria in 2015. MPs do not, as a rule, like it when governments take this route. Cameron argued it was sometimes necessary, in light of an imminent threat to national security or humanitarian disaster, to act first and ask permission later. It is difficult to see how May could claim either exception to join US strikes against Assad. British national security is not directly threatened, and the humanitarian situation has largely remained unchanged for seven years.

May could, finally, restrict British participation in action against Assad to non-combat roles, such as providing surveillance and logistical support to its US and French allies, or by deploying Special Forces. Neither non-combat actions nor Special Forces operations presently fall under the War Powers Convention, meaning May retains discretion to act as she sees fit. Opponents of further engagement in Syria might, however, push back against this – they managed to prevent the Cameron government offering military support to opposition groups, for example, and one of the benefits of having a War Powers Convention instead of a War Powers Act is that MPs can demand more power over situations they particularly care about.

In sum, therefore, the May government’s best political option is probably not to join direct military action in Syria. Instead, it should offer its allies indirect support, perhaps including the use of Special Forces for reconnaissance purposes. That would enable it to demonstrate a degree of usefulness at a difficult diplomatic moment, without risking either holding, or visibly bypassing, a parliamentary vote.

I discuss these arguments in more detail in my recent article in the British Journal of Politics and International Relations (£).

Questions surrounding the killing of British ISIS fighters in Syria

MQ-9_Reaper_CBPDavid Cameron yesterday confirmed that an RAF-operated Reaper unmanned aerial vehicle conducted a strike near Raqqa in Syria in August that killed two British nationals fighting with ISIS. One, Reyaad Khan, was accused of planning and directing terrorist operations against targets in the UK. He appeared in a prominent ISIS recruitment video last year.

The action raises a number of important issues worth addressing. All three form part of a broader question – was this action legitimate?

First of all, we should ask whether it was actually necessary to use deadly force against these individuals. David Cameron said it was, calling the strike both “necessary and proportionate”. But it seems somewhat odd to suggest that two men travelling in a car through Syria, presumably armed with no more than satellite telephones and AK-47s, posed an imminent and direct threat to British lives or the British state. Here the problem is likely to be one of accessibility. If Khan was indeed directing terrorist plots in the UK, he posed a threat to UK national security. Had he been in the UK, he could have been arrested. But he was in Syria, in territory controlled by ISIS. There was probably no other way of getting at him. At that point we should go back to consider the scale of the threat Khan posed, something we cannot be sure of without access to intelligence evidence.

Secondly, we might consider the legality of a British government killing British citizens abroad, something it is generally not allowed to do at home. Here two issues arise. Firstly, we should ask whether the killing was itself legal. Secondly we should consider how to reconcile it with parliament’s express decision to veto military action in Syria (admittedly against the Assad regime) in August 2013, and its specific approval of action against ISIS in Iraq only in September 2014. As far as the first question goes, the answer points back to the nature of the threat Khan posed. States are allowed to kill people that directly and credibly threaten to kill their citizens. If Khan posed a direct and credible threat to British lives, his killing was legal. There was no prospect of his being arrested and brought to trial, leaving force as the only viable response to the threat. In addition, Khan was physically present in a de facto stateless territory, no longer under control of any recognised government. Britain technically violated Syrian sovereignty by striking Raqqa without the approval of the recognised Syrian government. Since there is no recognised Syrian government, however, the point is moot.

As far as the second question goes, the key legal point is that parliament’s involvement in decisions on military action remains conventional. In other words, MPs have no legal authority over the use of force overseas. Ministers can act as they see fit using the authority granted to them by the historic royal prerogative. They will probably argue (after party conference season) that this strike should receive retrospective approval as part of a vote on extending the UK’s efforts to counter ISIS into Syria. Whether they will win that argument remains to be seen. It will depend in part on whether Jeremy Corbyn wins the Labour leadership, and on whether he can count on the loyalty of his MPs.

Finally, we should ask whether killing these men was a moral act. I generally take the view that killing people is wrong, therefore the state shouldn’t kill people. These sorts of targeted killings, widely employed by the Bush and Obama administrations in the US, including against US citizens, throw this simple position into some doubt. For one thing, the argument that a killing is morally justified when it is conducted overseas could lead quite easily to the argument that a killing is morally justified even when conducted at home. On the other hand, it is clear that individuals associated with ISIS do pose a genuine threat to life in the UK. I would accept an exception to my broader opposition to state killing in cases where killing was the only way to save lives. And this brings me back to my original point about necessity. Whether it was morally justifiable to kill Reyaad Khan depends on whether killing him was the only way to prevent him killing others, especially British citizens to whom the British state owes a primary duty of security.

We’re going to hear a good deal more about this issue in the coming weeks as the government works to lay the ground work for a vote on fighting ISIS in Syria.

Walzer, Metternich, dictators and R2P

UK Ministry of Defence CC BY-SA 2.0
UK Ministry of Defence CC BY-SA 2.0

Professor Michael Walzer gave the annual Fred Halliday memorial lecture at LSE this evening. Professor Walzer is most famous for his book Just and Unjust Wars. If you’re interested in when it is right to go to war (and when it is not) Walzer’s text is the place to start.

He offered a number of reflections on the responsibility to protect against the backdrop of the ongoing conflict in Syria. Some of the points he raised reminded me of some thoughts I had on the subject but never quite got round to writing down. Spoiler alert: l am a cynical post-doc. The idealists among you will not enjoy what I am about to say. I know because I tested it on one of my students (sorry Brian).

Walzer proposed three criteria for judging when externally-imposed regime change should be considered in response to atrocities in a conflict situation. According to Walzer, an intervening state should:

  • Ensure there is a viable alternative government and support it as it establishes its authority over the state
  • Secure the regime’s weaponry. This may mean co-opting elements within the regime and especially its security forces.
  • Guarantee the physical safety of minority populations within the state.

Walzer noted these three requirements probably mean boots on the ground. He argued against ‘half-assed’ interventions that seem likely to make conditions worse. But he also argued that intervention in Syria could not possibly have been worse for the Syrian people than what has in practice been allowed to take place.

Later in the talk, Walzer argued for an incremental approach to regime change. This means in part achieving peace and security first, and keeping the establishment of liberal democracy as a longer-term goal. It means also getting the international community on board through the UN Security Council, and corralling neighbouring states to contribute their share.

All of these points got me thinking. Walzer’s argument was predicated on the assumption that any intervention in a conflict such as that in Syria (or Libya, say) inevitably meant changing the regime. But what if you relax that assumption? After all, the worst excesses of both the Assad and Gaddafi regimes came after the descent of their countries into de facto civil war. Before the fighting started they were engaged in what Walzer described as the ordinary repression conducted by authoritarian regimes; morally reprehensible, but short of the standard for the responsibility to protect to apply.

I am increasingly of the view that the outside world should indeed intervene at an early stage when an armed uprising threatens the stability of an authoritarian state. But not on the side of the rebels. On the side of the regime.

Prime Minister Tony Blair (UK) meets President Bashar al-Assad (Syria) in the aftermath of 9/11.
Prime Minister Tony Blair (UK) meets President Bashar al-Assad (Syria) in the aftermath of 9/11.

Backing the existing regime would meet all three of Walzer’s criteria. We know the Gaddafi and Assad regimes were capable of running their countries; they’d been doing it for years before the extraordinary circumstances of the Arab spring transformed simmering grievances into outright insurrection. We know they can secure their weapons. We know they are capable of not massacring their minorities; I say again, neither started engaging in the sort of activities that would trigger the responsibility to protect until after the risings against them began to make headway.

The UN Security Council could unite around backing an existing regime. So could regional powers; they’ve been living with it for years, after all. There would probably be no need for outside boots on the ground. And the sum of human suffering that would result would fall well short of that produced by the chaos we have seen when authoritarian regimes are allowed to fail (or indeed destroyed from outside, see Iraq).

A default stance in favour of existing regimes would have a clear strategic basis. The international community’s failure to unite around the Soviet effort to shore up the Communist regime in Afghanistan led to chaos and the rise of the Taliban. The decision to overthrow Saddam Hussein led to chaos, years of violent instability and the rise of ISIS. NATO’s action in Libya created a vacuum, as did the outside world’s inaction in Syria. Outside intervention that commanded the support of the international community and neighbouring states would not suffer from the legitimacy deficit that has dogged so much Western foreign policy in recent years. It would be more likely to achieve its objectives than the more nebulous efforts to spread ‘freedom and democracy’ we have seen in recent years. There would be fewer conflicts, fewer opportunities for extremist opportunists to capitalise on instability, fewer civilian casualties and fewer refugees.

Prince Klemens von Metternich
Prince Klemens von Metternich

The problem, of course, is the moral basis for this sort of policy stance. So far I’ve made the ‘realist’ argument. My inspiration has been less Walzer himself and more Prince Klemens von Metternich, State Chancellor of the Austrian Empire during the decades after the Napoleonic Wars. Metternich believed the greatest threat to human society lay in the instability associated with revolution. His ‘Metternich system’ of European congresses included a promise by Ancien Regime states to intervene to support each other in the event of rebellion.

The problem, of course, is that Metternich was profoundly anti-democratic in his objectives and intent. From the perspective of a liberal democrat, his approach is morally problematic. My student was concerned that my proposal shut down the possibility of human progress. I disagree. For me it creates the space for progress. For example, it is important to distinguish between my argument, that shoring up authoritarian regimes is better for their citizens in the short term, and an orientalist belief that ‘those people’ simply cannot do democracy. I am not saying that. I am arguing for playing a long game.

I am arguing that ‘those people’ most certainly can do democracy. Given the choice all people everywhere would choose to live in a state that makes overthrowing the government peacefully relatively straightforward, that provides the security and the institutions necessary for politics to reconcile conflicting interests, and that protects human rights. Of these things, security is the most fundamental, however. There can be no freedom without security. And there can be no security without the state.

Our objective in intervening should be, in the short term, to end the fighting, and ensure the existing state is sufficiently secure that the immediate crisis can be resolved with a minimum of bloodshed. From a moral perspective we justify this approach as the least worst outcome considering the descent into chaos likely following the collapse of an authoritarian state.

In the long term, then, our objective should be to bring about a gradual transition to a representative democracy. Here we can use our willingness to support the regime as leverage to a certain extent, getting it to agree to concessions without which we will take the support away (and possibly transfer it to rivals within the state). From a moral perspective we justify this approach in the same way we justify any political action; the only way conflicting interests are reconciled without violence is through negotiation and compromise. There are conflicting interests. Therefore there must be negotiation and compromise. We still retain the option of turning on the regime if we really need to. But we should give it the space to transform itself peacefully.

We don’t, in other words, give up our belief that liberal democracy is the way to go. But we show ourselves willing to work towards it incrementally, rather than seeking immediate, and unrealistic, change.

It’s not an inspirational approach to humanitarian intervention. It’s clearly far from ideal. But a Metternich-inspired strategy would, I submit, produce the least worst set of outcomes than all the alternatives I can see.

Parliament doesn’t decide yet, but sort of does

Parliamentary opposition has forced the British government to water down a motion seeking approval for military action against the Assad regime in Syria. This is a big deal, given in theory Parliament has no role in decisions about the international use of force. As the BBC’s Nick Robinson put it, “It is without modern precedent for a prime minister to lose control of his foreign policy, let alone decisions about peace and war. That, though, is what has happened in the past 24 hours”.

It reinforces a growing shift in the constitutional balance of power that began when Tony Blair was forced to allow a vote before the Iraq invasion in 2003. Cameron saw no downside copying Blair over Libya in 2011. The Libyan action was backed by the UN Security Council, so Parliament voted unanimously to support it. By treating Blair’s unusual act as a precedent, however, Cameron helped cement a new convention. Since the entire royal prerogative, from which the authority to direct the use of force stems, is a conventional power, it changes when the conventions around it change. It doesn’t matter that promises by Gordon Brown, William Hague, and Cameron himself failed to result in new legislation guaranteeing Parliament a vote on any future military actions. As Cameron’s u-turn over Syria shows, he is bound by the new norms of British foreign policy making whether he likes it or not. What we have witness over the last 24 hours in British politics is nothing short of the birth of a new parliamentary prerogative.

Even with legal advice confirming any strike would be in line with international law, and the JIC stating it is highly likely there has been a chemical weapons attack by the Assad regime in Damascus, it is unclear MPs will back the use of force. In which case, Britain simply won’t be able to take part.

Parliament now decides

In some respects, the decision to recall Parliament to approve what David Cameron calls a “clear motion” authorising action in Syria is unsurprising. William Hague promised the Andrew Marr show on 9 June that any intervention would be signed off by MPs. The government would have struggled to back down from Hague’s unambiguous statement without suffering considerable political opprobrium. At the same time, it is hugely significant. Through debates and substantive votes over the Iraq war, the Libyan intervention, and now Syria Parliament has gradually gained a conventional right to veto the international use of force. The power, previously part of the royal prerogative and reserved to the Prime Minister, has been gradually given away and ultimately yoked to parliamentary support. No future leader will be able to row back from precedents set in 2003, 2011, and 2013. Against the weight of convention now established, the absence of a formal change in the law remains odd but insignificant. MPs will always get a vote in future. The government retains only the freedom to decide the timing.

Selling Syria

The British government has followed the US lead over Syria, playing a cautious game and refusing to commit to intervention in the country’s ongoing civil war in the absence of unambiguous UN Security Council approval. Foreign Secretary William Hague told The Andrew Marr Show on 9 June that Britain would take no action without first securing parliamentary approval, and given the importance of UNSCR 1973 when MPs voted in favour of intervention in Libya in March 2011, that looked to be a clear sign that nothing was to be done.

Foreign Secretary William Hague
Foreign Secretary William Hague

This morning, however, Hague changed his tone. Although Russia has rolled back its position of absolute support for the Assad regime in recent days, it still seems unlikely to approve western military intervention. Echoing rhetoric last used by British politicians in the build-up to the Iraq War, Hague told the Today programme that the Security Council was ‘failing to shoulder its responsibilities’. Even The Guardian is relaxing its anti-war stance, albeit only slightly. Yet without a Security Council Resolution, the government will struggle to gain parliamentary approval for a substantial intervention, and rightly so. The ‘soft realist’ stance epitomised by The Daily Mail with its “why is it our problem?” line opposes foreign entanglements on principle. Many Conservative MPs will share this view, which is why they are already beginning to demand a parliamentary recall. Hague has promised it, so there will be a substantive debate before any military action.

Tony Blair meets Bashar al-Assad, Damascus, 2001

This is where things get really interesting. British public opinion rightly senses that the Syrian conflict is more complex than that in Libya, and recognises that the outcome of the Libyan intervention was far from perfect. At the same time there is wide revulsion at the prospect of a dictatorial regime using chemical weapons against civilian populations. British MPs will reflect these views, adding concern for international law (a very real issue if there is no further UN mandate, albeit one glossed over in Kosovo in 1999) and for domestic procedure in the form of their own right to vote on war. Whether they agree to act depends on what action the government proposes. A limited campaign of airstrikes, calculated to hurt the regime without necessarily tipping the balance in the ongoing civil war, seems the most likely proposal. Russia might be persuaded to accept a Security Council Resolution that explicitly limited the scope of the campaign. Even absent that shift, MPs may yet be persuaded to vote in favour by the corollary of the ‘soft realist’ position, the ‘hard liberal’, pro-intervention stance last seen during the Iraq debate. Any debate will be dramatic and any vote close.

If Cameron thinks he will struggle to win parliamentary support, however, he may decide not to risk seeking it. That may have been Hague’s intention in promising a vote in the first place. Matt Baum over at Harvard has done good work on the use of “domestic audience costs” by democratic leaders to tie their own hands deliberately when entering negotiations. Hague may have done that here, by guaranteeing MPs a veto on intervention, even intervention short of military action. Unless the case is clear, and unless Ban Ki-Moon’s strong statements are backed up with an unambiguous UN mandate to act, Cameron may not be able to get sufficient parliamentary support to go ahead, and probably will not want to in any event.