Journal of Conflict and Security Law - Advance Access

Efficiency and Accountability in War Powers Reform

Jenkins, D. — 2009-05-27

This article examines the UK government's Draft Detailed War Powers Resolution, recently put forward in its White Paper on the Constitutional Renewal Bill. Responding to calls for reform of the Crown's war prerogative, the Government has rejected primary legislation that would require parliamentary approval for its war-making decisions. Instead, the proposed resolution would preserve the prerogative, while purporting to give Parliament a greater consultative role. In critically assessing that proposal, this commentary takes a comparative look at how the US Constitution divides war powers between the President and Congress. Different interpretative schools in that country suggest that the structural distribution of war powers ultimately reflects competing preferences between values of operational efficiency and democratic accountability. Judged by these values, the British government's proposed resolution is seriously flawed. It heavily favours the executive branch by giving the Prime Minister the initial decision to seek authorization, allowing him or her excessive discretion in making exceptions, and offering little possibility for Parliament to make and enforce limitations on the government. Accordingly, the proposed resolution might actually undermine democratic accountability, by allowing the government to shield its prerogative decisions in future with a shallow and meaningless veneer of parliamentary approval. Any serious attempt to enhance the democratic accountability of executive war-making decisions must therefore address a more fundamental constitutional problem—the strict party system that allows ministers to control a parliamentary majority and prevent meaningful, independent legislative scrutiny of government war policy.

Resurrecting Siyar through Fatwas? (Re) Constructing 'Islamic International Law' in a Post-(Iraq) Invasion World

Ali, S. S. — 2009-05-27

This article seeks to explore the impact of the Iraq war on Siyar or ‘Islamic international law’ from a range of Muslim perspectives by raising some critical questions and addressing these through the lens of a selection of Fatwas solicited by Muslims from a range of countries and continents, on the Iraq war and its implications for popular understandings of Siyar and Jihad. This article suggests that the Iraq war presents an opportunity to revisit and potentially revive historical Siyar pronouncements of a dichotomous world, i.e. dar-al-harb and dar-al-Islam. I argue that in so doing, this discourse has invigorated the notions of a universal Ummah within the normative framework of Siyar hitherto marginalized by ascendancy of the nation state, international organizations and contemporary Muslim state practice. Finally, I argue that a wider Internet access to Muslim communities in the global South has facilitated a modified institution of ifta to reflect popular understandings of Siyar and Jihad and influence its reformulation in the backdrop of the Iraq war.

The United Nations and the African Union: Assessing a Partnership for Peace in Darfur

Barnidge, R. P. — 2009-05-23

In Resolution 1556, the Security Council, with the conflict in Darfur clearly in mind, determined that the ‘situation in Sudan constitutes a threat to international peace and security and to stability in the region’. This article focuses on the response by the United Nations, in particular the Security Council, and the African Union to the Darfur conflict. It begins by exploring the role of peacekeeping operations and regional arrangements or agencies in the overarching architecture of international peace and security. Having laid this frame of reference, it then looks at the modalities of peacekeeping in Darfur. These operations began with the African Union acting in isolation but have transitioned to an increasingly important role being played by the United Nations and a hybrid peacekeeping presence. Finally, this article asks whether, assuming that a legally dispositive conclusion can be drawn that genocide has taken place in Darfur since the outbreak of hostilities there in 2003, there exists a legal justification, or even obligation, for non-compliance by states with the sanctions regime established by Security Council Resolutions 1556 and 1591. This regime of sanctions has played an important part in the Security Council's approach to Darfur but has been, unfortunately, left largely unexamined from the standpoint of international legality.

Dieter Fleck (ed.), The Handbook of International Humanitarian Law

Gazzini, T. — 2009-03-25

The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study

Barber, R. — 2009-03-18

Cyclone Nargis struck Myanmar on 2 and 3 May 2008, devastating the Irrawaddy Delta, affecting 2.4 million people and leaving an estimated 130,000 people dead or missing. In the weeks following the disaster, in the face of enormous humanitarian needs, the government of Myanmar imposed significant restrictions on the delivery of humanitarian aid. The restrictions imposed, and the frustration felt by the international community, led to intense debate regarding the potential application of the ‘responsibility to protect’, and to suggestions that the legal doctrine could be invoked to justify military intervention for the purpose of delivering humanitarian aid to the survivors of the cyclone.

Using Cyclone Nargis as a case study, this article examines the meaning of ‘responsibility to protect’ in the aftermath of natural disaster. The status of humanitarian intervention and the ‘responsibility to protect’ in customary international law is discussed, followed by a consideration of whether the ‘responsibility to protect’ could have been invoked in the aftermath of Cyclone Nargis as a justification for military intervention. This article concludes that while the restrictions imposed by the government of Myanmar fell short of what would be required to justify military intervention, it is possible to envisage situations where, in the aftermath of natural disaster, a government's refusal to allow access to survivors might be so complete, and the humanitarian needs so immense, that the use of force may be warranted.