§ 6.53 p.m.
§ Lord Goodhart rose to call attention to the obligations of the United Kingdom under international law concerning the use of armed force, and to move for Papers.
§ The noble Lord said: My Lords. shortly—in a matter of hours—President Bush will no doubt deliver a final ultimatum to Iraq. Within 24 hours of that, probably, there will almost inevitably be war with Iraq in which British troops will be involved.
§ As we have just been told, we shall have another debate tomorrow. The purpose of this debate is limited to one specific aspect of that wider debate: the legality 69 of the use of armed force in Iraq without the specific authority of a further resolution of the Security Council. The Government have during the past weeks and months laid great stress on the importance of legality. They have said that they would not ask the Armed Forces to intervene unless it was lawful for them to do so.
§ A second resolution in the Security Council would have given legitimacy, but it is now clear that no second resolution will be passed by the Security Council. The Government now have to face the question of whether force is lawful without such a resolution. The noble and learned Lord the Attorney-General says yes, but I must say that I believe he is wrong.
§ Can force be justified without United Nations authority in any circumstances? Sometimes, yes. There is of course the right of collective dissent under Article 51 of the United Nations Charter. Another example, although still a controversial one, is the right of humanitarian intervention outside the charter, as exercised in Kosovo— an occasion on which the noble and learned Lord, Lord Morris, appeared on behalf of the Government to argue the case in the International Court of Justice for the existence of the right of humanitarian intervention.
§ As I explained in my speech of 26th February in your Lordships' House, I believe that neither of those grounds—collective defence nor humanitarian intervention—can be relied on to justify the use of armed force against Iraq today. The Attorney-General does not base his case on either of those grounds, so I shall not pursue them.
§ Probably the most important document in international law today is the United Nations Charter. Under chapter 7 of the charter, the Security Council deals with threats to peace and acts of aggression. Article 39 gives the Security Council power to decide what measures should be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security. Article 41 gives the Security Council power to impose measures not involving the use of armed force, such as economic sanctions. Finally, Article 42 states that if the Security Council considers that the measures provided for under Article 41 would be or have proved to be inadequate, military action may be taken to maintain or restore international peace and security.
§ Those powers were the basis of the Gulf War in 1991 and subsequent UN action in Iraq. The Attorney-General bases his case that there is an existing authority to use armed force on resolutions arising from Iraq's invasion of Kuwait in 1990 and its aftermath. We therefore need to consider those resolutions.
Resolution 660, adopted on 2nd August 1990, demanded that Iraq withdraw its forces from Kuwait. Resolution 661 imposed economic sanctions under Article 41 on Iraq. Resolution 678, adopted on 28th November 1990, authorised member states, unless Iraq withdrew from Kuwait by 15th January 1991,
to use all necessary means to uphold and implement resolution 660 … and to restore international peace and security in the area".
In that context, all necessary means obviously included armed force.
§ Resolution 687 was adopted after the end of the war on 8th April 1991. It affirmed the previous resolutions. It required Iraq to accept the destruction and removal of chemical and bacteriological weapons and missiles with a range of more than 150 kilometres. It required from Iraq a commitment not to use, develop, construct or acquire banned weapons, and not to acquire or develop nuclear weapons. It reaffirmed the economic sanctions, with a relaxation for foodstuffs, and provided for sanctions to end when Iraq had completed the required actions.
The resolution declared,
that, upon notification by Iraq to the … Security Council of its acceptance",
the formal cease-fire would become effective. The motion also decided that the Security Council would,
remain seized of the matter and take such further steps as may be required for the implementation of the resolution and to secure peace and security in the area".
There is nothing in Resolution 687 that authorises the further use of armed force against Iraq by member states without a further resolution of the Security Council. Such action, would, in my view, be plainly inconsistent with the terms of the resolution.
We now move to Resolution 1441, adopted on 8th November last year. It decided that Iraq was in breach of its obligations under Resolution 687, but should be given a final opportunity to comply. Paragraph 12 decided that the Security Council would convene immediately on a report from the inspectors of non-compliance by Iraq,
in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security".
Paragraph 13 recalled,
in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations".
By paragraph 14, the Security Council decided,
to remain seized of the matter".
§ That is the background. We now have the summary of the advice given to the Government by the noble and learned Lord the Attorney-General. We welcome the fact of that disclosure, although we should have liked to see much more detail of what must have been a lengthy opinion dealing with the complex arguments involved in the case and showing possible qualifications and reservations. All we have seen is the baldly stated summary. We also regret that the noble and learned Lord the Attorney-General has not given us the opportunity to ask questions and to hear his answers.
§ The Attorney General's opinion reaches a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording. If do not dispute that some reputable experts in international law have reached the same conclusion as the Attorney General. I mention Professor Ruth Wedgwood, of the 71 law school of Columbia University, for example. But they are in a minority, especially in the United Kingdom. The opinion of 16 leading academic international lawyers, including the professors of international law at Oxford, Cambridge and University College London, in a letter to the Guardian on 7th March, was contrary to that which the Attorney-General has now disclosed.
§ Resolution 687 is crucial because it set up the ban on weapons of mass destruction. It also set up the inspection regime. As I said, there is nothing there that constitutes an authority to go to war without going back to the Security Council for authoritative act under Article 42.
Resolution 1441 is undoubtedly the most important of all. I have already read the main provisions of paragraphs 12, 13 and 14. I cannot see how anyone could conclude that a breach by Iraq was sufficient to justify armed force without further reference to the Security Council. Paragraph 12 requires the Council to convene on the report,
in order to consider the situation".
That in itself is inconsistent with an automatic trigger of further action. The motion says that the Council recalls that it has warned Iraq of serious consequences as a result of violations. Indeed, that is the case. This is a further warning that breaches may well lead to the use of armed force, but it is no automatic authority to go ahead. The final paragraph states that the Council decided,
to remain seized of the matter".
It is plainly not delegating it.
§ The Attorney-General says that Resolution 1441 would have said so if a further decision were required. I see no justification for his argument. Both the United States and British ambassadors to the United Nations when Resolution 1441 was adopted said that it contained no automaticity. I believe that there was a clear understanding that Resolution 1441 did not confer a right of action without referring back to the Security Council. Unless there had been such an understanding, it would have been difficult if not impossible to get Resolution 1441 through the Security Council.
§ A final decision on the use of armed force requires judgment as to the seriousness of the breaches by Iraq, the effectiveness of the inspection system and whether the breaches could be corrected by means short of war. Those are difficult decisions. The Attorney General is arguing that the Security Council has delegated those decisions to the United Kingdom and the United States of America—in effect, to the US alone. I do not believe that that is the kind of decision that the Security Council could, or would delegate to any one member, however powerful. A decision to use armed force under Article 42 in full scale war is the most solemn decision that the Security Council can ever take. The idea that vague and ambiguous words in those resolutions can be read as implying a delegation to the United States, with or without the United Kingdom, to take these decisions verges on the absurd.72
§ Where does that leave the Government? I speak as someone who believes that Saddam Hussein should be disarmed by force if no other way succeeds. I believe that he does have weapons of mass destruction. His failure to co-operate with the inspectors when cooperation would have led to the lifting of sanctions can have no other rational explanation. But I also believe in the rule of law. I respect what the Prime Minister and the Government have done up to now. They have undoubtedly worked their guts out to achieve a second resolution, but it is now apparent that they have failed. It is not the fault of the Government, but mainly that of the Bush Administration who have have shown contempt for the United Nations and for international law. To some extent, it is also the fault of the French Government, who seem animated more by hostility to Anglo-Americans than by a willingness to seek a compromise. But failure there has been.
§ War and British participation now seems inevitable. The Government should face up to the fact that what we are about to do is not lawful. They will have to bear the consequences of that, and so will we. I beg to move for papers.
§ 7.7 p.m.
§ Baroness Ramsay of Cartvale
My Lords, I am very grateful to the noble Lord, Lord Goodhart, for introducing this debate on the UK's obligations under international law concerning the use of armed force. Speaking as a non lawyer, I have been greatly perturbed in recent months by the outpouring of statements and opinions by many lawyers on this subject with specific reference to Iraq.
I should have liked to deal with this in my speech in the debate on the 26th February, but there was insufficient time and I could only say then:Although I am not a lawyer. I really have problems understanding how anyone can raise fears about international law being breached by military action against Iraq. Chapter 7 specifically allows the use of force and Saddam has failed to comply with 23 separate obligations under a series of resolutions under Chapter 7".—[Official Report, 26/2/03; cols. 263–264.]I wanted to go on to spell this out in more detail, which thanks to the noble Lord, Lord Goodhart, I can now do. and also to express my dismay at the way in which the words "international law", "legal" and "illegal" were being bandied around as cover for opinions, which in my opinion were in fact political and personal.
I should say here that looking round the Chamber I see many members of the legal profession, and what I have to say will not be music to their ears. I should at the beginning enter a caveat that. of course I am not speaking of all lawyers and, of course on Iraq, as other issues, lawyers hold very different views and have spoken on different sides of practically every aspect of the situation.
Of course also I have no problem with those who have political and personal objections to military action against Iraq and I understand very well those who have political and moral problems with that, but 73 I do take issue with international lawyers who invoke legality when that is not justified, and is not in truth what they are really talking about.
If anyone reads Resolution 687 of April 1991, they will see that it is a very long resolution of some 34 operational paragraphs and the noble Lord, Lord Goodhart, has dealt with quite a lot of it. I know it well having, as I have told the House before. spent the last 12 months of my government service, up to the end of July 1991, totally immersed in the Gulf crisis and war. One can see that 687 is very specific in the obligations it laid on Iraq and the time-scale for compliance by Iraq— for example, in the case of a declaration of locations, amounts and types of all items specified in a paragraph which was a detailed list concerning chemical and biological weapons—was 15 days. It was, like all the 17 resolutions on Iraq over 13 years, passed under Chapter 7 of the UN Charter, and it ended with the crucial words, which I did not hear the noble Lord, Lord Goodhart, quote,decides … to take such further steps as may be required for the implementation of the present resolution".Resolution 687 was, of course, the conditions for the ceasefire in the military action authorised in 678 of November 1990.
The Security Council has authorised the use of force, as it is entitled to, under Article 42 of Chapter 7 by means of various wordings—in 1950 on Korea; in 1990, 1992 and 1994 on Kuwait, Somalia and Haiti; in 1993 for UNPROFOR; in 1997 for Albania; and in 1999 for East Timor. I shall not quote all the words because of the time constraint, but my point is that if you look at them all there is no one formula—which is a point some international lawyers seem confused about, to say the least.
There is no question that the use of force was authorised in 678 in 1990 and the subsequent Chapter 7 resolutions on Iraq, up to and including 1441, were all trying to achieve compliance with Resolution 687, which was the ceasefire. That is my reading of the situation as someone who is not a lawyer, but I am pleased that as far as I can see from the Answer of my noble and learned friend the Attorney-General to my Question for Written Answer today, I have been thinking along the right lines.
The reason I have laid this out in some detail is because I have been bewildered to read and to hear some of the so-called legal points advanced by international lawyers attacking the legality of military action against Saddam Hussein. The argument that 687 was in 1991 some 12 years ago and therefore this somehow affects is legality really does not stand up. There is no statute of limitations on Chapter 7 resolutions. Fifteen days was a deadline for Saddam to comply, not for action to be taken against him.
The length of time, 12 years, is a political reason why it was important to have 1441 as a final opportunity for compliance, but surely never a legal one. Yet a much quoted letter in the Guardian of 7th November, mentioned by the noble Lord, Lord Goodhart, signed by some 15 teachers of international law, deals only with 1441, as if it stood alone, with no hinterland of the 16 previous resolutions. The letter declares, 74before military action can be lawfully undertaken against Iraq a Security Council must have indicated its clearly expressed assent. It has not yet done so".But I am sorry, yes it has, and it is surely peculiar that international law teachers should be so simplistic and ignore the context and history of 1441. They give no indication at all that there could be a doubt about their way of reasoning. I recognise that people have their own agenda and positions on controversial issues, but I expect them to have the intellectual honesty not to use the cloak of academic cover to claim to my mind a very doubtful objectivity.
When I was an undergraduate, I was told by an eminent professor of law that there was no such thing as international law. I certainly do not want to accept that. having been a fervent supporter of the UN since my school days, and I am an enthusiast for the International Criminal Court—
§ Earl Russell
My Lords, in academic matters disagreement is frequent and normal. It is more easily resolved if we do not call in question the honesty of those with whom we disagree.
§ Lord McIntosh of Haringey
My Lords, my noble friend Lady Ramsay has reached the end of her time. Time is very short in this debate and I think we would do better without interventions.
§ Baroness Ramsay of Cartvale
My Lords, I thank my noble friend, and I will now conclude my remarks. I am an enthusiast for the International Criminal Court, but I am perturbed by the ease with which international law practitioners seem to be able to use it as a political football.
I am not a lawyer, and that is not said apologetically. I am glad that I am not because I think it helps me to see clearly the differences between what is a matter of law, of politics, or of morality—something which some lawyers all too eas1ily blur. It is of course acknowledged that international law is not an exact science, but it surely does not have to appear as bizarre as some of its practitioners have made it appear in recent months.
§ 7.16 p.m.
§ Lord Mayhew of Twysden
My Lords, it is now with a certain queasiness that as a mere wretched lawyer I rise to offer my opinion that military force against Iraq will be lawful, notwithstanding the absence of a successor resolution to 1441. Like the noble Baroness, Lady Ramsay, and the noble Lord, Lord Goodhart, I do so as a firm upholder of the United Nations Charter. I believe that its adoption marked the beginning of a new world order of immense promise and that the organisation, for all its manifest deficiencies, has on the whole served the world well—and certainly irreplaceably—for over half a century.
I would not support action which flouted the principles or purposes of the charter. Central to those is the restoring or securing of international peace and security. Equally, I have to accept that the United Nations is a relatively new jurisdiction. We are far from having an article or precedent for many of the fraught 75 situations which this volatile world throws at us. Therefore, there will frequently be respectable arguments on both sides of any issue—arguments which it would take years to litigate in any international court to an authoritative conclusion, even if that were possible.
This is, in my view, such a case. I believe that the exigencies of the situation simply do not afford us that comfort any more than they did when we intervened in Kosovo, controversially at the time but an action now accepted as lawful as well as expedient.
This is not to claim that the law is what we say it is. It is to recognise that member states must sometimes have the courage to act when the law may not be explicitly cut and dried and to bear the heavy responsibility themselves for doing what they conscientiously believe to be necessary and lawful.
In view of the body of opinion that holds that use of force against Iraq would be unlawful unless authorised by a further resolution, I have found it helpful to go back to Saddam's invasion of Kuwait. When Iraq invaded Kuwait and seized its territory in 1990, our own Government gave immediate help under the doctrine of collective self defence, now enshrined in Article 51 of the charter. At the same time, we pressed for an urgent Security Council resolution condemning the invasion and demanding Iraq's withdrawal. We were determined to get this engagement of the Security Council as soon as possible, and within a very few days it was achieved, with Resolution 660 the result.
When Saddam's forces thereafter stayed exactly where they were, we remained resolute in upholding the jurisdiction of the Security Council. We worked hard for subsequent resolutions, and in particular for 678— already referred to this evening—which authorized member states to use "all necessary means" to uphold and implement Resolution 660 and to restore international peace and security in the area.
"All necessary means" embraced, as it embraces today, military means; that resolution mandated the ensuing military operations which expelled Saddam from Kuwait and were halted when that was done. I have some reason to remember those matters because I was at the time the Attorney-General in the War Cabinet.
It may be that the mandate would have covered us if we had gone on—if we had continued military operations after we had liberated all Kuwaiti territory. The arguable ground—and it has since been argued— would have been that they were still necessary to restore international peace and security. But that would have been to introduce great controversy where previously there had been remarkably little. We instead worked, I believe rightly, for the conditional ceasefire set out ultimately in Resolution 687. This was binding on Iraq, which formally accepted it anyway, and it remains binding on Iraq today. Because it was a conditional ceasefire, it left 678 undischarged, in force, but, as it were, to be placed in abeyance or suspension provided Iraq fulfilled its obligations and continued to fulfil the conditions.
76 Iraq has never complied with these conditions, as the council has repeatedly found. Some 17 further resolutions have failed to secure compliance, and so 678 is now not in abeyance or suspension—it is available.
This extraordinarily lengthy and, some might say, indulgent series of resolutions culminated in 1441 on 8th November last year. The resolution specifically recalls in its preamble that Resolution 678 authorised member states to use all necessary means to restore international peace and security in the Gulf. It further recalled that 687 imposed obligations on Iraq as a necessary step for the achievement of the council's stated objective of restoring peace and security. It recited that the council was determined to secure full compliance with its decisions, and it then recorded the decision that Iraq has been and remains in material breach of its obligations, including those under Resolution 687. That position remains the same today as common ground, as shown in the latest Blix report. It is surely implicit that in deciding that, the council found that international peace and security in the area have in consequence not been restored.
Resolution 1441 went on to declare the decision to offer Iraq a final opportunity to comply with its disarmament obligations, specifying what in particular must be done within 30 days. If this final opportunity is not taken, Iraq is reminded that it has been repeatedly warned that it will face serious consequences as a result of its continued violation of its obligations.
Following the critical report of Dr. Blix and his colleague, it is plain, now four months later, that the final opportunity to comply with Iraq's obligations has not been taken and the council has duly discussed the situation. It has not adopted any further resolution, politically desirable though that would have been. But 1441 does not lay down that it shall do this, only that it shall convene to consider the situation and the need for compliance with all its resolutions in order to secure peace and security. That is what it has done.
Because Resolution 678 has remained in full effect since its adoption or has, at the very least, been revived by Saddam's current and continued non-compliance, its mandate must be undiminished. Its exercise will not have been triggered by 1441, nor will it have followed automatically from 1441. Any military force used against Iraq will have drawn its justification from the mandate which 678 has never ceased to afford to member states—because the council has always decided that peace and security in the Gulf area have not been restored following the events of 1990.
Those who today refuse a further resolution in the council are entitled to make that choice for whatever reason. But that choice cannot have the effect of a retrospective veto on the operation of 678.
That is my view of this anxious matter. I am fortified today to find that it accords with that of the noble and learned Lord the Attorney-General. I hope I shall not be thought frivolous if I end with a thought that in any event it reflects what the law ought to be. In international law, what the law ought to be generally turns out not to have been a bad guide to what it is later found to have been.
§ 7.25 p.m.
§ Lord Thomas of Gresford
My Lords, I am grateful to my noble friend Lord Goodhart for raising this important matter at such a sensitive time. It falls to me to take up the challenge of the noble Baroness, Lady Ramsay of Cartvale, to defend what she describes as a bizarre interpretation of the law.
I go back to the beginning. On 2nd August 1990, following the invasion of Kuwait, Resolution 660 determined that the invasion constituted,a breach of international peace and securityand demanded withdrawal. It was not an authorisation for the use of force, since it was made under Articles 39 and 40 of the charter which call upon states to comply with "provisional measures" before deciding on sanctions, whether forceful or otherwise. It was followed by Resolution 661 which imposed economic sanctions. Further resolutions were passed, condemning the consequences of Iraq's invasion, but the Security Council reaffirmed its determination at that time to ensure compliance by Iraq with the Security Council resolutions by maximum use of political and diplomatic means—not force.
It was not until 29th November 1990, with Resolution 678, that force was authorised. Paragraph 2 of the resolution:Authorises Member States co-operating with the Government of Kuwait … to use all necessary means to uphold and implement resolution 660 … and all subsequent relevant resolutions and to restore international peace and security in the area".Resolution 660, the upholding of which was the cause for force to be authorised, was confined to demanding the withdrawal of Iraq from Kuwait. The subsequent resolutions referring to economic sanctions said nothing about disarmament or regime change.
The provision to restore international peace and security in the area referred at the time to the violation by Iraq of international peace and security by its invasion of Kuwait. It was focused and specific. No further breach was identified. That phrase cannot be construed to authorise, 13 years later, an invasion of Iraq by armed forces of the United States and the United Kingdom to topple the regime and eliminate weapons of mass destruction. Such a construction is, to use the description of my noble friend Lord Goodhart, absurd.
In April 1991, after Desert Storm had been completed and hostilities had ceased, Resolution 687 welcomed in its preamble the restoration to Kuwait of its sovereignty, independence and territorial integrity, and affirmed the commitment of all member states to the sovereignty, territorial integrity and political independence not only of Kuwait but Iraq. It also noted the intention of the member states co-operating with Kuwait to bring their military presence in Iraq to an end as soon as possible. The resolution decided that Iraq must unconditionally accept the destruction, removal or rendering harmless, under international supervision, of all chemical and biological weapons and all ballistic missiles. That is why inspectors were 78 appointed, for international supervision. There was no mention of force. There was no mention of force of arms or war at that stage.
Paragraph 33 of that resolution declares that upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions, a formal ceasefire is effective between Iraq and Kuwait and the member states co-operating with Kuwait in accordance with Resolution 678. The formal ceasefire did not require the final implementation of Resolution 687 to have taken place.
The noble Baroness, Lady Ramsay of Cartvale, referred to paragraph 34. That decides that the Security Council shall remain seized of the matter and shall take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area. As my noble friend said, it did not delegate to the United States or to the United Kingdom. It kept the matter in its hands—the power to authorise the further use of force. No individual state or group of states acting outside the clear mandate of the Security Council retained the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.
The Attorney-General suggests that Resolution 678 suspended but did not terminate the authority to use force. Such an interpretation is in clear conflict with the expression of the Security Council's intention. The limited ends in Resolution 660—the expulsion from Kuwait—had been achieved. Significantly, in the latest Resolution 1441, whereas there is specific reference to Resolutions 661, 678 and 687. there is no such reference to Resolution 660; its ends had been fulfilled. Indeed, on 11th April 1991, the President of the Security Council, following the unqualified acceptance by Iraq of Resolution 687, declared that the formal ceasefire was effective.
So, we come to Resolution 1441 on 8th November of last year. France and Russia and others negotiated over the draft to ensure that resolution did not include the authorisation of force. Russian Deputy Foreign Minister, Yuri Fedotov, said on 8th November:Russia, with the support of France, China and other UN Security Council members, 'managed to have the most unacceptable formulations from the project excluded' including 'provisions which would permit an automatic unilateral use of force'".They have not changed their position. That was their position when Resolution 1441 was passed. If there was a lack of clarity about it, the representatives of the United States and the United Kingdom must accept responsibility because the United States Permanent Representative to the United Nations, John Negroponte, said in the Explanation of Vote on the same day:The resolution  contains no 'hidden triggers' and no 'automaticity' with the use of force".Similarly, Sir Jeremy Greenstock, our representative, agreed in the United Kingdom Explanation of Vote:We heard loud and clear during the negotiations the concerns about 'automaticity' and 'hidden triggers' … there is no 'automaticity' in this Resolution. If there is a further Iraqi breach of the disarmament obligations the matter will return to the 79 Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities".So our representative was saying, "It is for the Security Council to decide what to do". The essential point is that it is for the Security Council to decide whether and to what extent Iraq is in breach of its obligations and to determine what is the appropriate action. The United Kingdom may, by promoting a resolution in cahoots with the United States and Spain, act as prosecutor, but it has to persuade the jury of world opinion, represented by the Security Council, that there has been a material breach of Resolution 1441 which is punishable only by recourse to war. Neither the United Kingdom nor the United States is entitled to enforce the "will" of the Security Council.
§ 7.34 p.m.
§ The Lord Bishop of Salisbury
My Lords, I, too, am grateful to the noble Lord, Lord Goodhart, for securing this debate on our obligations under international law concerning the use of armed force.
I am among what may be a relatively small number of those who feel that many of the arguments deployed in your Lordships' House and elsewhere seem to revolve around a fairly limited sense of what counts as legal. Noble and learned Lords will give us their opinions as to how we might or might not justify the action the Government are proposing to take, and they will be able to argue, as lawyers are trained to do, from the small print about what "all necessary means to secure peace and security in the Gulf" actually means. But is getting the small print right what moral leadership requires when most of the world seems against the course of action that this country proposes? Is the acid test in this case not so much whether or how we can get away with going to war with Iraq but how that decision sits with our wider responsibility to uphold a world order where peace, justice and truth prevail?
Behind our debate this evening there are, I suggest, two complementary attitudes to the law. One view is of a minimalist structure that allows people to do very much what they want and comes into play only when liberties collide, and my freedom to do what I want invades your life and limits your ability to live your life as you would wish. On this view, the law sorts out the boundaries and patrols them. The other views the law as an overarching framework that holds people together and never lets them forget that they are neighbours one to another. Its fundamental premise and starting point is not me and my rights but us and our world's needs.
I should like to belong in a society where the second view is the one that holds, where we think first of the kind of community that we long for and of the needs of others and only secondly of what suits us and of how much we can get away with before others stop us. I know that is an idealist position but the other long considered licence for those who have the power to exercise it is our current norm for self-centred living. My point is this: the world is simply too small for that 80 view. Even if it is technically legal, what about the future? What is the long-term aim of our policy? Is it simply to be rid of this particular threat and this particular tyrant? I hope that we shall all say amen to that, but is it not also to build a more secure and interconnected world? How will the world be more secure and more interconnected after this venture, however successful, if we embark on it with ourselves and the United States alone? In that regard the policy of the Government of the United States seems to me to be short term and isolationist. That can only have the effect of giving permission to other nations to act as they wish in pursuit of their own immediate and short-term goals.
The Minister will probably tell me that 12 years is a long time to wait for Saddam to disarm and that it is only our threatened use of force that is squeezing some concessions out of him now. Yet the world's gaze is now fixed upon Baghdad and the inspectors have been reporting progress. Why not pursue that legally established process to the very end until every opportunity for peace has been exhausted? Might not that be the way to build a global certitude that war is the only option left? We do not seem to have persuaded many of that now.
I know from my links with the Sudan that patient work in building up partnerships of trust between nations is being undermined by our proposed action. I am not surprised that the Secretary of State for International Development views the unravelling of her work over the past few years with some dismay. What kind of a world, what pattern of relationships, what international authority will we land ourselves with if we act virtually unilaterally in such a way? How will the nations of the Arab world view us and our use of the law? What kind of an example will we set? We are commending unilateral action by those who have the power to act. How do we propose to rebuild trust between nations when we are campaigning with only the United States as our companions? The United Nations, founded with such great hopes, has been damaged and belittled by what we have seen of attempts to cajole or bribe it into rubber-stamping the decisions of the powerful. Yet we desperately need a vision of a world where the voice of the weak and powerless resonates as clearly as that of the mighty, where the exercise of strength can always be held to account, and where collaboration and unity are prized and not undermined.
That is the kind of world that is upheld by embracing the law as a delight sweeter than honey in the honeycomb. That is what our Judaeo-Christian forbears prized, and of that they were proud to be the guardians.
§ 7.40 p.m.
§ Lord Hannay of Chiswick
My Lords, it is with some trepidation that I rise to speak in the debate. I am not a lawyer, and the subject matter is complex and open to different legal interpretations, as we have already heard. Nevertheless, the topicality of the subject, with the Government having clearly reached a decision to commit our Armed Forces to achieve the disarmament 81 of Iraq by the use of force, and my own personal involvement, as Britain's ambassador to the United Nations during the first Gulf War and in the adoption of many of the UN resolutions that are relevant to the matter, have overcome my qualms. I hope that my direct experience will compensate for my lack of legal expertise.
Any consideration of the current circumstances relating to the use of force against Iraq by the United Kingdom and its allies has to go back to Security Council Resolution 678 of November 1990, which explicitly authorised the use of force by the allies of Kuwait to reverse Iraq's aggression against that country. In passing, I would like to comment on what the noble Lord, Lord Goodhart, said about it being inconceivable that the Security Council would delegate such authority. It did so on that occasion. did so again in the case of Somalia, and then—surprise, surprise—did so on behalf of the United States.
Security Council Resolution 678 cast its net wider than just the reversal of Iraq's aggression, because it authorised the use of force in addition,to restore international peace and security in the area".It is that second part of the mandate, the first part having been fulfilled in 1991, that is crucial to the present situation. When the Security Council came to lay down the terms for the cessation of hostilities after the Gulf War in Resolution 687—it was known in the argot as "the mother of all resolutions", in tribute to the person who gave rise to it —it was the second part of the mandate that underpinned the provisions relating to disarming Iraq of its programmes for producing weapons of mass destruction and also any missiles of more than 150 kilometres' range.
That was very clearly explained in the preamble to Resolution 687, which speaks of the need to be assured of Iraq's peaceful intentions, refers to Iraq's threats to use chemical and biological weapons contrary to its international obligations, expresses concern at Iraq's nuclear ambitions, states that all weapons of mass destruction pose a threat to peace and security in the area, the precise words of Security Council Resolution 678, and sets out the objective of Resolution 687 as—those words again—restoring peace and security in the area.
Moreover, the operative parts of Resolution 687 are even clearer. Iraq must unconditionally accept the destruction, removal or rendering harmless of all its chemical, biological and nuclear programmes under international supervision. It was stated that the ceasefire was dependent on Iraqi acceptance of that. As several noble Lords have said, the resolution ends rather unusually by stating that the Security Council would take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.
In the event, Iraq's arsenal of weapons of mass destruction turned out to be massively greater than had been expected on the basis of existing intelligence, a warning against the view that intelligence invariably tends to overstate the threat. Despite its promises to the contrary, and with a tenacity worthy of a better 82 cause, Iraq set about deploying every trick of the trade to retain as much of its weapon programmes as it could. That has been the history of the past 12 years, interspersed with a series of unavailing and inadequate attempts to bring it to compliance by the limited use of force.
One further reference is perhaps germane to that earlier period. When Iraq first began to drag its feet over the removal of its weapon programmes in the summer of 1991, the Security Council adopted a further resolution that has not been quoted by any noble Lord. Resolution 707 of August 1991 explicitly referred to section C of Resolution 687, the section that deals with disarmament, and slated that Iraq's actions constituted a material breach of Resolution 687,which established a ceasefire and provided the conditions essential to the restoration of peace and security in the region".The link back to Resolution 678 could not be set out much more clearly than that.
Let me cut now to the autumn of last year—cut I must because of time constraints—and to Security Council Resolution 1441, adopted by a surprising unanimity in November 2002. That resolution gave Saddam Hussein what was explicitly stated to be one last chance to comply fully with all the earlier resolutions on disarmament. It set out in great detail how that needed to be done. What it did not do was, in itself and on its own, provide authority for the use of force in the event of non-compliance. It did not purport to do that, for the very simple reason that it did not, in the light of the analysis that I have given of the earlier resolutions, need to do it. The authority already existed. It was intended to send a clear and strong signal to Iraq that, in the event of non-compliance, there would be serious consequences. That there has since been non-compliance is surely not seriously in doubt.
That there has also been some limited measure of compliance is not really the point. The most recent of Iraq's many full, final and complete declarations, handed over in December to the chairman of UNMOVIC, was not full, final or complete, as Dr Blix told the Security Council. There has been no fundamental change of Iraqi attitude, no policy decision at the highest level to abandon the proscribed weapons programmes, such as was taken some years ago by South Africa in respect of its nuclear weapons programme, which led to its rapidly receiving a clean bill of health from the international inspectors. Instead, we have seen a continuation of existing policy designed to give up only what could not be successfully concealed.
Faced with the evidence of non-compliance, the Security Council has unfortunately fallen prey to divided counsels, expressed most graphically in the agonisingly prolonged debates over whether to adopt what has come to be called "the second resolution", although it is in fact about the 18th, depending on where one starts counting. There are many misunderstandings about that second resolution. as there have been about Resolution 1441. It too was not in itself an authorisation for the use of force. 83 Anyone who has examined the text of the draft and all the successive iterations of it that followed can see that it did not explicitly authorise the use of force.
The purpose of the resolution was surely political and not legal, to draw a line under the phase of non-compliance with Security Council Resolution 1441 and to signal that serious consequences were now imminent. If it could have been adopted, it would have sent a powerful signal to Saddam Hussein of the determination of the whole international community to bring an end to the matter one way or another. Alas, that will now not happen, and perhaps the best chance of getting Saddam Hussein to blink has been squandered in a bitter wrangle over the timing of sending such a signal. Signal or no signal, the authority remains the same in this analysis. It derives not from the now-moribund second resolution, nor from Resolution 1441 alone, but from Resolutions 678 and 687 as well.
What then remains to be said? It is certainly ironical that the authority for the use of force derives in this case from two resolutions for which France and Russia, at that time still flying under the flag of the Soviet Union, voted in favour. However, it also follows in this analysis that action by the UK, the US and its other allies does not herald either a new doctrine bypassing the system laid down in the UN charter, nor the flouting of international law. In fact, it is far less daring than was the decision by NATO to use force against Yugoslavia in the case of Kosovo, where it was recognised that entirely new ground was being broken under the justification of an overwhelming humanitarian emergency. This really is as close as it is possible to be to a one-off situation. The UN has not often voted explicitly to authorise the use of force in the past and it does not look likely to do so very often in the future.
So, sweeping conclusions about the legitimisation of pre-emptive action are rather wide of the mark. Moreover, the action being taken is not designed to further the interest of one country or one group of countries; it is designed to bring about compliance with a series of mandatory resolutions of the Security Council. It is thus, in this view, very firmly situated within the framework of international law.
§ 7.50 p.m.
§ Lord Brennan
My Lords, this debate is about international law. It is not about lawyers or words but about the legal system by which we try to keep the peace in our world. When we signed up to the United Nations Charter as a nation, we did so to avoid for future generations the scourge of war. In seeking to achieve that objective, we agreed, as signatories to a treaty, that the use of force between nations should be permissible only in the case of armed or imminent attack or under United Nations authorisation when a threat to the peace had been declared by the Security Council and non-military measures had been determined to be inadequate.
84 That is the international law that we agreed to support. It explains the valiant and unstinting efforts of our Prime Minister, Foreign Secretary and others in recent months to achieve a solution to the Iraqi problem through the United Nations. It explains why, in his statement today, my noble and learned friend the Attorney-General sought to explain the legal basis for action against Iraq within the context of resolutions from the United Nations—not the humanitarian example of Kosovo but reliance on the system in which we play our part.
Today, I believe that my noble and learned friend the Attorney-General, most helpfully and with clarity, established his view of the legal position. I do not agree that he should have attended this House to answer his case. I do not agree that the legal opinion of my noble and learned friend the Attorney-General is a subject for heated parliamentary exchange which includes him; it is for us to debate his view objectively. But it is a view that I cannot accept.
We, whether lawyers or not, have concentrated in this debate on the terms of the past resolutions. I propose to extract our thinking from simple semantics and to remember the objectives of those resolutions. Resolution 660 condemned the invasion of Kuwait. Resolution 678 agreed that all necessary means could and should be undertaken to restore the sovereignty of Kuwait. The subsequent resolutions—Resolutions 687 and 707 up to 1441—dealt with the disarmament of Iraq's weapons of mass destruction.
In my view, by no means is it clear that when we agreed internationally to take all necessary means to fight a war to restore the sovereignty of Kuwait, we thereby explicitly agreed that in 12 years' time we would agree to an invasion of Iraq if we were not satisfied about its disarmament in terms of weapons of mass destruction. My noble friend Lady Ramsay is right: it is a lawyer's fault ever to concentrate on those words. That was not the intention, and no amount of semantics will persuade me that such a conclusion is to be drawn from these resolutions now.
Nothing in the resolutions justifies a present war. A further resolution is required. I shall not rely on lawyers for that conclusion; I shall rely on three people. A week or two ago, President Bush Senior said that the way to world peace was through multilateral negotiation, collective agreement and collective action. It is upon that foundation, which he so eloquently described, that the United Nations worked. Ten days ago, President Clinton, as well versed in security matters as anyone, said that there should be more time—not unlimited time but such an amount of time as will combine an ultimatum with satisfying the people whom we represent that this is a justified war.
The last of the three is Kofi Annan—not a lawyer but a noble servant of international peace. Ten days ago, in The Hague, he said the following:The members of the Security Council now face a great choice. If they fail to agree on a common position. and action is taken without the authority of the Security Council, the legitimacy and support for any such action will be seriously impaired".85 He said plainly:I think that under today's world order, the Charter is very clear on circumstances under which force can be used … If the US and others were to go outside the Council and take military action it would not be in conformity with the Charter".That comes from no lawyer; there are no specious semantics. It is a statement by the first servant of world peace about international law and justice with which I personally agree.
I do not support the theory of anti-war; Saddam should be disarmed. I do not support unlimited delay; I agree that an ultimatum should be set up. But I do not agree that this action can properly be taken outside the context of the United Nations. But perhaps it will be—the die may be cast. If it is, then I, as one lawyer, shall stop contributing to these debates as of this evening. Once the action begins. nearly 50,000 of our soldiers—men and women—deserve the maximum moral support of our country. They will not be assisted by yet further incessant analysis of what is right and what is wrong, whatever may subsequently be argued.
But I hope that if we act, as the Government may choose to do, with the United States outside the United Nations. we shall very quickly remind the world that as a nation we support international law; we shall fight this war according to all civilised principles; we shall arrest where we can those who should be charged before an ad hoc international criminal tribunal for their crimes; and we shall guarantee—I underline the word —the future functioning of a civilised and democratic society in Iraq in so far as we can.
This is not the end of the United Nations; neither is it the collapse of international law. But if action is taken outside the United Nations, we as a nation must return to the fold of international law as quickly as possible.
§ 7.59 p.m.
§ Lord Lester of Herne Hill
My Lords, two issues have been raised by my noble friend's Motion. The first is whether the use of force against Iraq is lawful under international law; and the second is that, even if it were lawful, what are the legal limits governing the use of force under international humanitarian law? I shall deal with the second of those issues rather than the first.
As I am sure all noble Lords will agree, it is obviously essential for members of the Armed Forces and civil servants to have clear guidance about the legal obligations imposed on them as we face imminent war against Iraq. The Cabinet Secretary, Sir Andrew Turnbull, has recognised this in evidence to a committee in another place and has indicated that at the earliest opportunity that position will be clarified in a parliamentary debate. That is why this debate is particularly timely. I very much hope that the Minister will reply clearly to both those issues. In the light of some Questions for Written Answer that I had tabled, I wrote last Thursday to the noble Baroness asking her to do so. Having waived privilege in respect of the Attorney-General's conclusions, I hope that in 86 fairness to the Attorney-General the Government will publish his full reasons so that we can see more than the one-page summary.
Forty years ago, I learned the principles of public international law as I understand them not in this country but in the United States Harvard law school. My mentors were two great American jurists, Professor Richard Baxter who became the American judge on the International Court of Justice and Professor Louis Sohn, the expert on United Nations law. On the basis of their teaching and my subsequent practice, and my reading not only of the various opinions which have been referred to but also the four detailed opinions by Rabinder Singh QC and his colleagues, I agree with the views expressed by my noble friend and the noble Lord, Lord Brennan. I am not convinced by the summary reasoning given by the noble and learned Lord the Attorney-General.
International humanitarian law is inspired by the desire of all civilised nations to reduce the evils of war by protecting both combatants and non-combatants from unnecessary suffering, safeguarding the fundamental human rights of those who fall into the hands of the enemy, particularly prisoners of war, the wounded, sick and civilians, and facilitating the restoration of peace. English law makes it quite clear that a military commander is responsible for offences committed by forces under his effective command and control. English law makes it an offence to commit crimes against humanity or war crimes. I am sure the Minister will be able to confirm that there are effective sanctions under English law for any such offences. I ask the Minister also to confirm that those principles are rooted in well-established, customary and conventional international law; and that Ministers, civil servants and members of the Armed Forces of this country and the United States are bound to comply with those obligations.
On Saturday the Financial Times published an important letter from the Director-General of the International Committee of the Red Cross in Geneva, Mr Angelo Gnaedinger who wrote:If a war is fought, all combatants must behave in a way that prevents indiscriminate and excessive suffering and destruction. International humanitarian law prohibits direct attacks on civilians and stipulates that everything possible must be done to minimise incidental civilian deaths and injuries. Furthermore, combatants must avoid damaging or destroying vital structures. These provisions can only become a reality if the warring parties do not use weapons that indiscriminately kill and maim, cause excessive and long-lasting suffering and damage or pose long-term threats to health and security".The director-general also noted that during the Gulf War tens of thousands of people from both sides were detained as prisoners of war or civilian internees. He wrote:It is essential that everyone in this situation is treated humanely and in accordance with the Geneva Conventions. The potential conflict parties must also do everything possible to care for the sick and wounded, whether combatants or civilians, friend or foe. This implies that combatants respect the work of medical staff and facilities protected by the Red Cross and the Red Crescent emblems. In addition, everyone should do their outmost to ensure that humanitarian organisations can deliver medical care and emergency relief".87 Do the Government accept everything that the Director-General of the International Committee of the Red Cross has said is required? I hope and believe that the answer will be in the affirmative.
Finally, the director-general wrote:If war cannot be avoided, everything must be done to contain its effect on the safety and stability of the region. Much of this depends on how the hostilities are conducted and on the space given to human dignity and integrity in the midst of turmoil".Do the Government agree with that? Do they accept the obligation to meet the needs of the people and their rights for help and protection under international humanitarian law?
To be just, a war against Iraq would have to respect the principles and rules of the international rule of law. Even amid the clash of arms, the laws are not silent. In the pursuit of the international rule of law, our Government as well as the Government of the United States must surely be ruled by international law in war as in peace and must demonstrate that they will fully comply with those fundamental principles in their conduct. We are not Romans; nor are we barbarians; nor, if I may say so, cowboys enforcing gun law in the Wild West. I hope that the United States Government will understand in their conduct of this war that, in Shakespeare's words,it is excellent to have a giant's strength, but it is tyrannous to use it like a giant".I look forward to the Minister's full explanation of the Government's understanding of the international legal obligations imposed upon them and their allies in the use of armed force and the Government's acceptance of the matters raised on behalf of the International Committee of the Red Cross. In case there is any doubt about the matter, I wish to reiterate that for the reasons already given, and to be given, my view is firmly that what we are about to do is in breach of fundamental international legal principles.
§ 8.6 p.m.
§ Lord Owen
My Lords, within a very short time this country will, sadly, be at war again with Iraq. I believe that it will be a just war, a necessary war and a war that is fully compatible with the UN Charter. I realise that people hold different views and I respect those views. But I come to this debate with one very profound memory. As an 18 year-old medical student I watched this country go into the Suez war divided. undoubtedly, we now know, acting illegally, sending its troops out without public opinion behind them. It is right, therefore, that we seek to establish whether or not this action is legal. It is of fundamental importance that people being asked to risk their lives are in no doubt about the legality of the war. I hope that today's debate contributes to showing our forces in the field how resoundingly this House rejects the argument of the noble Lord, Lord Goodhart.
First, the noble Lord is profoundly wrong. Of the three resolutions mentioned, he chose to concentrate on 1441. He said it was the most important resolution. 88 However, by far the most important resolution is 678. It was quite wrong to stop reading at "Kuwait". It was a continuous sentence which concluded,to use all necessary means … restore international peace and security in the area".We have not restored peace and international security in the area. Nor has there been any real halt in hostilities—just a few months in 1992. In fact, we have been asking our air force pilots to risk their lives year after year in order to stop the Kurds being pushed again right up to the borders as they were. Unfortunately, we have not been able to stop a virtual genocide of the Marsh Arabs. So we are still using force, and using it under the most important resolution of all; that is, Resolution 678.
I should like to say to the right reverend Primate, who happens to be my diocesan bishop, that I respect and like the fact that the Church and the new Archbishop have taken such a strong view, even though I oppose it. But of all people, the clergy should have a vested interest in trying to establish a rule of law and practice whereby cease-fires can bring a war to an end as quickly as possible.
I urge Members of this House and others discussing this issue to understand that the Security Council is not a court. I spent almost five years of my life in and out of the Security Council, listening to the arguments—all related to war and resolutions on war. It is a council—a cabinet in a way—which makes political judgments. It listens to lawyers, rightly so, but must determine what is the overall good, in this case for the world. It is surely a fundamental good to establish the integrity and necessity of cease-fires.
President Bush senior did not have to stop when he did. We had General Schwarzkopf and General Powell in what was called a turkey shoot on the Basra route. I prayed that night that they would stop it, and they did. But they stopped it not without conditions, quite rightly. Having behaved in the way he did, Saddam had to be disarmed of the weapons of mass destruction which we knew he contemplated using on the warheads which could have landed in Tel Aviv or Saudi Arabia.
It is no use our trying to get away from the question: why have we not done anything over the past 12 years? Let us be political and realistic. The only country which could topple Saddam Hussein, post-1992 through to 2000, was the United States. But they did not have the will to do it. They did not want to send their troops back in again. It was only after September 11th that they found the national will and resolve to go ahead. I believe it was decisive and correct leadership of the British Prime Minister to decide that he was not going to stop them. Now that they had the resolution to deal with this issue, he was prepared to back them.
And let us not have lectures on containment from the French Government. Initially, under President Mitterrand, they co-operated. They flew with their pilots to enforce the no-fly zones. But they backed off from the military need for containment. Let no one say containment has worked; it has failed miserably. I have attended humanitarian conferences throughout 89 the world. People constantly ask me, "How can you justify what is happening to the infant mortality rate in Iraq and the failure of sanctions?". I said that I could not justify it. It is a humanitarian outrage. But it would be a worse humanitarian outrage to allow Saddam Hussein to get away with it; to stop the no-fly ban and to allow what would undoubtedly happen again to the Kurds.
So although we are discussing legal questions and respecting legal arguments—I want a law, a charter, an international discipline—let us set the matter in its political framework. Let us face the reality. Let us accept what horrors are taking place. The argument is put forward: let us leave it for a few more weeks, a few more months. I understand that argument. But the decision to amass 250,000 troops must be taken months in advance. We have to make a judgment. The French admitted that without those troops being there, there would not even be the limited compliance we see. But Iraq is still in fundamental breach.
At the end of the day it comes to a judgment. You can listen to the lawyers and you can listen to our bishops. You have to make your own choice. But how many people in their homes tonight, tomorrow and in the next few tortured weeks will ask the real question that underlies this: who but the United States were ready to take on and risk their troops and undoubtedly lose many lives. Thankfully, this country was ready, and there are many other countries too. We are not alone. Why are we doing it? It is because of a basic, deep humanitarian belief that this particularly vicious dictator has to be stopped.
We have behind us 17 or 18 UN resolutions. We can argue about the number but it is not one or two. We have a clear mandate. We did not do the job in 1991. I will not be Professor Hindsight. I wanted that ceasefire. I did not want them to go through to Baghdad. But when I see a ceasefire as brazenly broken as it has been by that man, and when I now see the most powerful country in the world ready to take risks with its own people to fulfil the United Nations Charter's own resolutions and demand the ceasefire and enforce it, I believe it should be supported.
§ 8.15 p.m.
§ Lord Archer of Sandwell
My Lords, the noble Lord, Lord Goodhart, is to be congratulated on securing this opportunity to discuss the implications of the present situation in international law. In our more general debates, various contributors pursue different themes and any specific theme such as international law tends to disappear in the general cacophony.
This is our opportunity to debate our differences. I have the misfortune to differ from a number of noble Lords with whom I frequently find myself in agreement, but that is one of the consequences of the present situation in international law, which develops daily and does not exist in tablets of stone.
The major theme of our discussion is whether there is Security Council authority under Article 42 for military action. Any of us may feel strongly that something should be done to intervene in what is the 90 career of a foul dictator in Iraq. Unless we can persuade an international consensus as to that, it may just be that we are wrong. It may just be that the conduct that we are pursuing is not the appropriate conduct. It is not a bad idea to listen to what other people say even if one is convinced that they have discreditable motives.
The possible justifications for armed force in the absence of such authority are interesting, but they bear no real applicability to the present situation. The problem about Resolution 1441 simply is that it manifestly does not authorise military action. If the council had intended to do so it could have said so quite unambiguously. To seek to spell out such authority from a reference to "serious consequences" is to treat the Security Council as a Delphic oracle. It is not necessary to be an international lawyer to see the common sense of that.
It has always been recognised that authority for something as serious as war should be unambiguous, at least partly because if the council chooses to authorise action under Article 42 it needs to spell out specifically what that action is. I agree with the noble Lord, Lord Lester, that it is not simply for any individual state which chooses to act on a general authority to decide precisely what action it is entitled to take irrespective of the humanitarian consequences.
It was not by oversight that the council refrained front authorising military action. When Resolution 1441 was under discussion, the council specifically considered whether to authorise military action and it declined to go so far. There were those who supported the resolution, as has been said, on the understanding that it did not include automaticity. Indeed, the resolution specifically provides that if Iraq fails to co-operate, the inspectors should report back to the council. Those who wanted automaticity failed to persuade the council.
When it was repeatedly pointed out that nowhere does Resolution 1441, expressly or by implication, authorise military action, the new doctrine emerged: "This is not about 1441 after all. What we are really talking about is Resolution 678 of 1990, and Resolution 687, which gave conditional authority to use all necessary means for the purpose which was then under consideration; that is, to secure withdrawal from Kuwait". The problem with that is that since then the Security Council has considered Iraq again and again and has passed at least 10 further resolutions—it may be there were far more—in which it set out what further action Iraq is required to take in a different situation and specified what further steps UNMOVIC and IAEA are to take in the light of the new circumstances.
The argument appears to be that we should go back to 1990 or 1991, ignore all that has happened since, all the intervening resolutions, all the further discussions and return to Resolutions 678 and 687 as though they were the last word on the subject. The sleeper has been reawakened and looks just as he did 12 years ago. But Resolution 687 had a last word: that the council resolved to remain seized of the matter. To go back to 91 1991 and to rewrite the history of the past 12 years would be like a man ordering a beef steak 12 years ago which is now brought to him, but in the meantime he has become a vegetarian, and it is argued that he never cancelled the order.
I understand the frustrations of those—particularly the Prime Minister—who believe fervently that an Iraq with weapons of mass destruction is a potential threat to world peace and security, if not in the immediate future at least at some future indeterminate time. I pay tribute to the Prime Minister's efforts to persuade the international community of that danger. Some of us were saying that long before it became apparent to the United States. We may suspect the motives of those who express their disagreement, although we may also consider it possible that they too, like the United Kingdom Government, are expressing what they genuinely believe. But the UN charter and the machinery that is now in place are the only criteria that until now have generally been accepted as forming a consensus among the international community.
I happen to believe that it is in need of reform. It places too high a premium on the interests of individual nation states. Perhaps now, or at least when the situation is less emotional, the world will set about constructing a more objective international authority, but for now the Security Council is all that we have. Destroy that and we may wish to have back what we have destroyed. I agree with my noble friend Lord Brennan that if we fail to persuade the Government, we should accept that events have overtaken our arguments, but I believe that history will decide who was right.
§ 8.23 p.m.
§ The Earl of Sandwich
My Lords, I thank the noble Lord, Lord Good hart, and unlike some of my noble friends, I support his contention that any action in Iraq now should be expressly sanctioned by the international community. Resolution 1441 was yesterday's resolution; it was not a war resolution. In 2003 it cannot be right for two nations to enter a major regional war without a very specific UN authority, even against the advice of their closest allies.
I wish to raise a related issue: the interpretation of international law concerning the use of our Armed Forces in humanitarian work. I speak with Iraq in mind, but I shall begin with the example of Afghanistan. Noble Lords will remember that the mandate of ISAF, the International Security and Assistance Force, does not extend beyond Kabul. Yet the aid workers have had to operate in the provinces at considerable personal risk. Staff of UN agencies and NGOs have been active, often without formal protection beyond that of the local warlord.
To provide that protection and to assist in humanitarian work, the US-led coalition has created new units known as PRTs (provincial reconstruction teams). There has been considerable concern among NGOs about the role of those units. They point out that confusion arises when soldiers plan or carry out 92 humanitarian work while their regiments may be simultaneously involved in conflict elsewhere in the country. It is unreasonable to expect local people to draw a distinction between soldiers handing out supplies or building a school and others who are carrying weapons with obvious military intent. There are also off-duty occasions when soldiers mingle with. and may be indistinguishable from, aid workers and indeed the local population.
Until recently when the NGOs complained, even co-ordination of their work was to be undertaken by those US-led teams rather than by the UN. The new teams do not, apparently, appreciate the problem, perhaps seeing themselves as liberators after the conflict has ended. Yet we know that, beyond the control of central government, the provinces are subject to frequent insecurity, ambushes and attacks on aid workers. Last month a UN de-mining team was attacked, and employees of the World Food Programme had their vehicle seized by armed gunmen. Several agencies and NGOs have now closed down their programmes. Warnings are being issued by Taliban remnants, and the FCO states that the threat to westerners in Afghanistan remains high, due to heightened tension. The knock-on effect of the Iraq war can only be to worsen security in Afghanistan, and some German and Dutch forces may now even be withdrawn from ISAF.
My first group of questions to the Minister, some of which I have tabled is as follows. How many British troops are now being seconded to these new US-led teams, and will they come under US command and be subject to the same rules of operation? This has a relevance for Iraq. Is she aware of the strong concerns of NGOs—and here I declare an interest, having close links with Christian Aid and several other NGOs—that this blurred distinction could adversely affect, and even endanger, the organisations and people whom they may wish to protect? To quote from a recent Save the Children Fund statement:Humanitarian agencies will not be used as instruments of foreign policy. Nor should humanitarian assistance ever be used as a political or military tool".Another statement from CARE International, quoted by the International Development Select Committee, this week said:Any action that fudges the distinction between military and civilian activities … makes us complicit … and identified in the eyes of ordinary people with … vigilantes".Turning to Iraq, it is not difficult to imagine the same issue arising in many areas of conflict there, especially after the first strikes are over, and during the period preceding and following any ceasefire. I am not at all opposed to a humanitarian role for the British Army in controlled situations. The hasty construction of refugee camps in recognised areas of Macedonia was a good precedent. provided that they were properly co-ordinated by the United Nations.
In a war, it may not be possible to draw these straight lines, and military objectives will always have precedence. Yet the Geneva conventions—and this is where international law is clear, as the noble Lord, Lord Lester of Herne Hill, said—state that civilians 93 should be a focus of humanitarian work from the outset of a conflict. One only needs to look at Palestine and see how Israel disregards UN conventions and the role of humanitarian aid workers, to understand the fears now being expressed about Iraq.
This brings me to my second group of questions. Can the Minister give us an assurance that her Government already have a contingency plan for Iraq, which bridges the need of the army, the UN and NGOs? Why is the humanitarian operations centre in Kuwait run by the US military and not, for example by the UN Office for Humanitarian Affairs? How will this centre relate to USAID's disaster team, and their NGO based in Jordan? Meanwhile, what will be the role of the UN Regional Co-ordination Office In Cyprus?
Much of this ambiguity, as many noble Lords will have realised, stems from the lack of a UN mandate, or a successor resolution to UN Security Council Resolution 1441. Illegality will run right through the system. The military strength and sheer willpower of the US will lead to a chain of command all the way through the network of humanitarian and non-government agencies. The work of NGOs and their independent judgment may be compromised, whether it is over oil-for-food or refugees.
It seems very likely that the same pattern will emerge in Iraq as in Afghanistan. Under US military law, I understand, power does not automatically revert to the civilian authority, even after the conflict has ceased.
I have worked with NGOs long enough to know when they are voicing very serious concerns. They have a long history of independence and they have their own way of doing things. They have built up expertise in emergency assistance which is second to none and has informed and piloted much of the work of official agencies, as DfID will acknowledge. In particular countries in the Middle East they have developed great sensitivity to the needs of local populations. They do not want all this experience to be jettisoned by the misplaced sense of superiority of a bunch of US colonels or by an ill-conceived policy of our own Government. Remembering previous exchanges with the Minister, I am confident that she would not want this to happen in the case of Iraq or anywhere else.
§ 8.30 p.m.
§ Lord Grabiner
My Lords, I believe that the use of force against Iraq in the present circumstances is justified and lawful under international law without the need for further Security Council authorisation.
As a matter of law, it is necessary to view everything that has happened since 2nd August 1990, when Saddam Hussein invaded Kuwait, as a continuum. The issue we are debating today is not whether a material breach of Resolution 1441 is a sufficient justification for the use of force against Iraq. That, I believe, is the thrust of the argument of the noble Lord, Lord Goodhart, and of my noble and learned friend Lord Archer of Sandwell. In my view, respectfully, that is entirely the wrong question.
94 The real question, I suggest, is whether the use of force is justified having regard to all the circumstances and, in particular, to the events and "relevant resolutions" over the past 13 years. Not only is this the right question as a matter of law, common sense also suggests that the right conclusion will be reached only when regard is had to the full context.
Saddam Hussein's invasion of Kuwait was followed later that year by Security Council Resolution 678. This resolution could have been, but was not, limited in its terms to the expulsion of Iraq from Kuwait. In fact, the resolution authorised the use of "all necessary means" to secure not one but two entirely distinct objectives.
The first objective was the expulsion of Iraq from Kuwait. The second objective—this point was, if I may respectfully say so, correctly picked up by the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Hannay of Chiswick, but for some reason was wholly ignored by my noble friend Lord Brennan—was the restoration and maintenance of international peace and security.
Clearly the second objective was intended to go wider than the first, otherwise there would have been no need to include a second objective at all. This demonstrates that from the outset the Security Council did not see Saddam Hussein's invasion of Kuwait as having consequences limited to Kuwait; the Security Council rightly recognised that Saddam Hussein's behaviour had consequences far beyond Kuwait because it demonstrated his tendency to take up arms, to attack and threaten Iraq's neighbours and to destabilise an entire region.
The conclusion of the Kuwait crisis and the consequent ceasefire did not cancel out Resolution 678 and its twin objectives. On the contrary, the ceasefire was itself expressly conditional on Iraq's acceptance of a detailed programme of disarmament and United Nations supervision, which included strict time limits to which Saddam Hussein was obliged to adhere. This was all spelled out in paragraphs 8 to 13 of Security Council Resolution 687, which was adopted on 3rd April 1991.
The unanimous view of the Security Council is that Iraq has not complied with Resolution 687. Indeed, paragraph 1 of Resolution 1441 of 8th November 2002 records,that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687".In other words, all member states are agreed that Iraq has not complied with the ceasefire conditions. Its failure to do so drives one to the conclusion that the Security Council has existing authority to achieve through alternative means the second objective of Resolution 678; namely, international peace and security. It has that authority because the ceasefire conditions set out in Resolution 687 were not met. The ceasefire failed to achieve the objective of restoring international peace and security and that objective remains to be satisfied.
95 This is not a new argument. It was used in 1993 and in 1998 to justify the use of force against Iraq in response to its then breaches of Resolution 687. In 1993 the then United Nations Secretary-General accepted that the use of force conformed to the resolutions of the Security Council and the United Nations charter.
That analysis is, I believe, confirmed by the plain text of Resolution 1441 itself. First, the provisions of this resolution are described in terms in paragraph 2 as Saddam Hussein's "final opportunity". A final opportunity means what it says. It is very simple language capable only of one construction. There is nothing more final than a final opportunity.
Secondly, by paragraph 12 of Resolution 1441, the Security Council decided to convene if the inspectors reported a failure by Saddam Hussein. This paragraph specifically does not provide that no action may be taken in response to any such failure unless and until a further resolution is obtained. On the contrary, paragraph 13 recalls that Iraq has been repeatedly warned that,it will face serious consequences as a result of its continued violations of its obligations".Serious consequences cannot mean that Iraq may merely expose itself to a further Security Council debate. The words "serious consequences" speak for themselves, especially when one bears in mind that Resolution 1441 is itself described as Saddam Hussein's "final opportunity".
The conclusion from all this is that there is an existing Security Council mandate for the use of force against Iraq if that is what is necessary to disarm Saddam Hussein and thereby achieve international peace and security. It may be politically desirable to obtain a further resolution from the Security Council, but that is another question.
I believe that similar arguments have been made by my noble and learned friend Lord Goldsmith, the Attorney-General, and by my learned friend Christopher Greenwood QC, who is the distinguished Professor of International Law at the London School of Economics.
I have confined my arguments so far to the context and the construction of the relevant resolutions. There are, however, two further arguments. The first is that Chapter VII of the UN charter does not set out an exhaustive list of the circumstances in which it is lawful for member states to have recourse to force. NATO's intervention in Kosovo provides a recent and powerful precedent for the legality of the use of force in a situation not covered by Chapter VII. That point was fairly acknowledged by the noble Lord, Lord Goodhart, in his speech. The Kosovo intervention did not fall within that chapter because it was not specifically authorised by any Security Council resolution. It was none the less justified and, in my opinion, lawful because of the urgent need to provide humanitarian relief.
The humanitarian argument was supported by all parties, including especially the Liberal Democrats. They did not and do not suggest that the bombing of 96 Belgrade was in violation of international law. What this demonstrates is that international law cannot be rigidly confined to the straitjacket of Chapter VII but must take account of the varied and complex situations that the modern world throws up.
Whether or not there is a comparable humanitarian justification for intervention in Iraq is very much a factual question. In my view, it is impossible to doubt that there is a pressing humanitarian need to intervene. It is accepted by all that Saddam Hussein has used chemical weapons on his own people and the brutality of his regime is not in doubt.
Those who believe, as I do, that the use of military force is necessary, lawful and morally right must believe that they can justify their position to the families of innocent victims of that use of force. I believe that we can do so.
Some would stand by and say that there is nothing lawfully that can be done to remove the long-term threat that Saddam Hussein presents or to save the people of Iraq from him. They have to say that—particularly in the face of Mr. Chirac's stated position that France would veto any resolution, whatever the circumstances. But those who do stand by must be able to justify their position to the families of innocent victims as well—that is, the victims of Saddam Hussein. I do not believe that they will be able to do so. Those families will not begin to understand the legal arguments that were used to justify such a culpable failure to act.