Cross-posted from EJIL: Talk!
Editor’s Notes: This post was written before the announcement earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August. Commentary on that latest development will follow later.
As Rob McLaughlin noted in his post, UK military pilots, (as well as other UK military personnel), embedded with US and Canadian forces have taken part in air strikes in Syria against Islamic State (or ISIL) targets. It has also been reported that Australian pilots embedded with US forces are also due to start taking part in that campaign in Syria. In a written Ministerial Statement of 20 July, the UK Secretary of State for Defense confirmed that: “A small number of embedded UK pilots have carried out airstrikes in Syria against ISIL targets: none are currently involved in airstrikes.”
The involvement of UK military personnel in air strikes in Syria would ordinarily raise a number of international law questions: (i) Is the UK to be considered as using force in Syria, and, if so, what is the legal basis for such action?; (ii) is the UK to be regarded as a party to one or more of the armed conflicts taking place in Syria?; (iii) would the UK bear responsibility if any violations of international law, occur in the conduct of those air strikes? Although these are all important questions of international law, they have not been all that significant in this case. These questions have not been of great importance in the context of the air strikes conducted by embedded personnel largely because (in the case of the first two) they arise apart from the participation in those airstrikes, and because (in the case of the third), it has not been suggested that violations of international humanitarian law occurred in the conduct of those strikes.
In the UK, the significance of UK forces acting in Syria has arisen largely because of domestic political and legal considerations that I set out below. However, as will be seen those domestic legal considerations are intertwined with questions of international law and in particular, with the question whether the UK pilots who have acted in Syria are to be considered as part of the armed forces of the UK, or rather as part of the armed forces of the countries in whose forces they are embedded (the US or Canada). This question, which is important domestically, raises the international law question that Rob McLaughlin refers to: are the acts of those UK pilots attributable, as a matter of international law, to the UK, or attributable only to the US and Canada?
The UK and the Legality of the Use of Force in Syria
The UK has already indicated that it would be prepared to use force against Islamic State in Syria and it has been rumoured that the government would seek parliamentary approval for such a use of force this autumn, perhaps even, this month. In any case, even prior to the revelation that UK embedded personnel had acted in Syria, the UK had already engaged in acts which amount to a use of force in Syria as it is involved in training and equipping Syrian rebel forces (see acknowledgement by Secretary of State for Defense in Parliament, (Hansards, 20 July 2015; col. 1233). We should recall that in thethe Nicaragua case (1986, at para. 228), the International Court of Justice held, relying on General Assembly Resolution 2670), that a state acts prima facie in breach of the principle of non-use of force when it engages in “organising or encouraging the organisation of irregular forces or armed bands . . . for incursion into the territory of another state” and “participating in acts of civil strife . . . in another state.” In particular, the court stated that arming and training of rebel groups involve a threat or use of force (see also para. 228). In addition, to training of Syrian rebels, the UK has also acknowledged that it is providing aid and assistance to the coalition that is engaging in bombing in Syria, by providing surveillance and reconnaissance (and also reportedly by refuelling planes). Importantly, the UK has already offered a legal justification for the use of force in Syria: the collective self-defense of Iraq. The UK Prime Minister stated in Parliament in September 2014, when seeking authorization to use force in Iraq that: “In this case it could not be clearer that we are acting at the request of a sovereign state, and if we were to act in Syria, I believe that would be the legal basis too: collective self-defence against ISIL which threatens Iraq.” (Hansard 26 Sep 2014 : Column 1263). In addition, as far back as November 2014, the UK had already written a letter to the Security Council under Article 51 of the UN Charter acknowledging that it was “taking measures in support of the collective self-defence of Iraq as part of international efforts led by the United States”. Although the UK is taking military action in Iraq, its justification for the use of force in that country is the consent of the Iraqi government (on which see here). Collective self-defence would not make sense as a justification for acts in Iraq as there is no even prima facie breach of Article 2(4) with regard to Iraq because of the consent of the Iraqi government. The Article 51 letter could only relate to acts taking place outside Iraq and the letter itself states that:
“The United Kingdom fully supports these international efforts, whose purpose is to end the continuing attack on Iraq, to protect Iraqi citizens and to enable Iraqi forces to regain control of the borders of Iraq by striking ISIL sites and military strongholds in Syria, as necessary and proportionate measures.” [emphasis mine]
In short, the international efforts that the letter relates to are those relating to the striking of ISIL targets in Syria but with the purpose of defending Iraq. So, the UK has already made it clear (if there was ever doubt) that it accepts the legality of responding to armed attacks by non-state groups based on the territory of another state, even if the acts of the group are not attributable to the state.
IHL and Participation in an Armed Conflict against Islamic State
As the UK is already involved in a bombing campaign against Islamic State in Iraq, the participation by UK military personnel in air strikes in Syria also does not raise any novel questions about whether the UK is involved in an armed conflict against the Islamic State. It already is – although that is across the border.
The most signficant international law question that arises with regard to the participation by UK embedded troops in strikes is Syria is this: Will the UK be responsible for any possible violations of international law in the course of those strikes? As it has not been alleged that there are any violations, even that question would appear, at least at the moment, not particularly significant. However, that international law question is very significant for domestic legal and political reasons.
UK Domestic Politics, Constitutional Conventions and International Responsibility
To understand why this issue is significant for the UK some attention needs to be paid to the domestic political and legal landscape relating to this issue in the UK. It will be recalled that the UK House of Commons voted in August 2013 against UK airstrikes in Syria (though at that time the question was about the use of force against the Syrian government). Moreover, when the UK government went to the House of Commons in September 2014 to seek Parliamentary approval for the participation of UK forces in air strikes against ISIS in Iraq, the government chose not to seek approval for UK use of force in Syria and the Prime Minister stated in the debate in Parliament that:
“I have said that we will come back to the House if, for instance, we make the decision that we should take air action with others in Syria” ( Hansards, Official Report, 26 September 2014; Vol. 585, col. 1266.]
In addition, it is now widely acknowledged that a constitutional convention has developed in the UK, according to which the government will not commit troops to armed conflict unless the House of Commons has been given an opportunity to debate the matter, except in cases of emergency, before those troops are committed. In addition, it has also been argued that as a result of the Syria vote of 2013, that constitutional convention requires the government to abide by the results of a vote in the House of Commons. (See the very useful posts by Gavin Philippson on the development of the convention). The existence of this constitutional convention raises the question as to whether the UK government should have gone to Parliament to allow a debate (and possibly a vote) on the issue before UK military pilots took part in airstrikes in Syria as part of their deployment with US and Canadian troops. The UK Secretary of State for Defence, in a Ministerial statement to Parliament acknowledging the participation of UK military personnel in the air strikes against Islamic State argued that:
“The convention that before troops are committed to military operations the House of Commons should have an opportunity to debate the matter, except in the event of an emergency, applies to the deployment of UK forces. UK personnel embedded within other nations’ armed forces operate as members of that military.”
In short, the convention does not apply because the troops in question are not to be regarded as UK forces. This government position was also confirmed in a statement setting out the government’s position in which it was claimed that “When embedded, UK personnel are effectively operating as foreign troops”.
It is at this point that the international law questions become relevant. Is it correct to say that UK troops are no longer to be regarded as UK troops when they are deployed with foreign armed forces and act under the operational command of those forces? As matter of international law, the relevant question is whether the acts of the UK troops are attributable to the UK or to the foreign state? If those acts are attributable to the UK, then those troops continue to operate as state organs of the UK and it is the UK acting when those troops take action (though the foreign state may also be acting as well).
Are the Acts of Embedded Military Personnel Attributable to the Sending or the Receiving State?
As Rob McLaughlin has pointed out, whether or not the UK is responsible for the acts of UK embedded personnel, and thus whether those personnel act as UK armed forces, will depend on the application of the rule stated in Article 6 of the International Law Commission’s (ILC) Articles on State Responsibility (2001):
“The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of governmental authority of the State at whose disposal it is placed”.
In the commentary to Article 6, (para. 1) the ILC states that this rule is engaged where, “the organ, originally that of one State, acts exclusively for the purposes of and on behalf of another State and its conduct is attributed to the latter State alone.” The UK claim is that this is what has occurred in this case. It does not appear to be a stretch of reality to claim that the UK pilots were acting exclusively for the purposes of and on behalf of the US or Canada when they conducted air strikes in American or Canadian planes on the instructions or orders of the US chain of command.
However, the problem with the UK argument and where it breaks down is that the ILC commentary also stares that:
“Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed. In performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control , rather than on instructions from the sending State,” para. 2
Indeed para. 3 of the commentary states that “Where [armed forces sent to another State] . . . remain under the authority of the sending State, they exercise elements of the governmental authority of that State and not of the receiving State.”
So the question that must be asked is whether the UK personnel were under the exclusive direction and control of the US/Canada or still remained under the authority of the sending State? Rob has already indicated that:
“ ‘exclusive’ direction and control is not something that States generally provide to other States in terms of TCD military personnel. Indeed, there is growing jurisprudential recognition of the fact that States retain – effectively always, nowadays – ‘full command’ of their military personnel, regardless of who is giving them operational orders at any given time (which is a matter of operational command or, more routinely, operational control).”
In this particular case, there is evidence that the UK personnel, despite acting under the operational command/control of the US remained under the authority of the UK. The UK Secretary of Defence in his statement in parliament said:
“Let me be clear about the rules of engagement. As far as air strikes are concerned, embedded pilots have to comply with the rules of engagement of the host nation, but also with United Kingdom law and the law of armed conflict. When the host nation’s rules of engagement are less restrictive than our own, those embedded must also comply with ours.”
In other words, in this case, the UK retained authority over the personnel in question and even over the acts in question (to the extent that UK personnel had to follow UK rules of engagement). Where the UK retains authority to control the act then the act cannot be regarded as under the exclusive control of the foreign State. Such an act thereby remains attributable to the UK (even if it might also be attributable to a foreign state as well). In such circumstances, it is the UK that is acting as a matter of international law.
Although this international law point does not necessarily determine the domestic law question of whether the constitutional convention is engaged, it ought to inform the discussion.