INTERNATIONAL LAW, THE UNITED KINGDOM AND DECISIONS TO DEPLOY TROOPS OVERSEAS

摘要

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. Historically the role of Parliament in such decisions has been more significant politically than legally, in that the 'prerogative' nature of the decision to go to war has meant that legally speaking it belongs to the Crown, which nowadays means the executive branch of government (in the UK the Cabinet, or often a small group within the Cabinet known as the 'War Cabinet', more pejoratively the 'Sofa' government under Prime Minister Blair). Politically though, for the Government of the day, it is often important to have Parliament on its side, particularly if it has decided to prosecute a controversial war that may become unpopular over time, so that in Kosovo, Iraq and Afghanistan Parliament was significantly involved in debates over the war aims as well as the international morality and legality of the interventions, both during and often before the wars started. It is argued here that this dynamic, where formal constitutional legal constraints are few, but international legal constraints are applicable (in terms of rules governing both the use of force and the conduct of hostilities), means it is international law that should play an increased role in helping to shape such decisions. However, as shall be seen, this role is played out in political fora and in non-judicial mechanisms of accountability and review rather than in the Courts.