Confusing the Ad Bellum with the In Bello

Joshua Rozenberg has written an interesting piece at The Guardian entitled How Far Should Our Courts Venture Onto the Battlefield, essentially about whether a parliamentary vote should be required for the use of force by Britain. The law on the use force is what is known as the jus ad bellum.

As it stands in parliamentary democracies like Britain and Canada, decisions about the use of force are made by the government. Parliament holds the government to account on such decisions through things as Question Period and debate in the House of Commons and questions in parliamentary committees. The media also holds the government to account through its activities. Ultimately, though, the decision to use force is up to the government.

As Rozenberg points out, this is a constitutional convention in parliamentary democracies. The advantage of a convention – as opposed to legal requirement – is supposed to be its flexibility to adapt to the particular circumstances of a situation. The Lords Constitution Committee investigating the issue of formalizing the convention rejected arguments for both legislation and for a simple parliamentary resolution authorizing the use of military force.

The worry the Lords have is that the decision about the use of force may then be subject to judicial review. According to the Report:

Specifying the parliamentary approval process in primary legislation may create a risk of the domestic courts being invited to rule on the lawfulness of a deployment decision…We received evidence that when courts (particularly coroners’ courts) scrutinise operational decision-making by service personnel, this has a deleterious effect on the morale of the armed forces and leads officers to become more risk-averse.

Rozenberg’s reply is that: “every commanding officer must operate within the law and none would seek to argue otherwise.” Well, yes but that does not answer the original question about the use of force. Whether or not soldiers are conforming to the law is a jus in bello issue (lawful conduct in war) and not one about the use of force.

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Attacking Theodor Meron of the ICTY

There’s nothing like making accusations you can’ t possibly back up: “Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?…We will probably never know.”

Precisely. Yet Danish Judge Frederik Harhoff will just let that accusation hang out there anyway.