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Wednesday, 9 January 2013

Parliament and war - William Hague's proposals

Last week the Times reported that William Hague proposes to give MPs a veto over proposed military action (Times, p 6, 4 January).  This proposal might be compared with the United States’ War Powers Resolution of 1973. Part of the fallout from the Vietnam War, the Resolution permits the executive to start military action, but requires Congressional approval after 60 days (with a further 30 day withdrawal period). This affords the executive the flexibility to respond to emergencies and to retain the element of surprise. It therefore answers two of the objections identified in your report about Mr Hague’s proposal.

The 1973 Resolution is not without its problems, however. For a major campaign it would be an operational nightmare for Congress suddenly to withdraw funding after two months, and political pressure not to compromise the action would be immense, so the provision may be more theoretical than real.

Secondly, during the Libyan campaign, the White House’s position was that the Resolution could not be invoked because the operation did not constitute a “war”. The reasoning given was that American forces were not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

As I have argued in my book (Cases, Causes and Controversies: fifty tales from the law), that argument was entirely fallacious. The United States was (among other things) deploying armed drones to assist rebels attempting to topple the Libyan regime. Attempting to remove a sovereign government by force is a war in anyone’s language. Had a foreign-controlled drone fired on President Obama in the White House, for example, America would have considered it to have been the clearest declaration of war imaginable, and would have responded with the full weight of its armed forces without the slightest hesitation.

Thus one can expect that any mandatory veto granted to Parliament would have to allow not simply for emergency situations but also realpolitik, which seldom appears in a more cynical form than it does in the realm of armed conflict.

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