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Lord Roberts of Conwy: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, and to the noble Baroness, Lady Finlay of Llandaff, for their kind words about me at the opening of their remarks. However, they do not hide the fact that neither supports my amendment. I am nevertheless consoled by the considerable assurances given by the Minister about the regulations that the Assembly will propose that will cover the area of reporting by community health councils.

I am also grateful to the Minister for his assurance of the independence of community health councils and, indeed, for the rest of what he said.

So I am content to have emphasised the point about CHCs. To my mind, they are good institutions but must have the element of independence that will allow them to be real watchdogs on behalf of their districts. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


6.52 p.m.

Lord Grocott: My Lords, with the leave of the House, later this evening my noble friend Lady Symons will repeat a Statement on Iraq and, again with the leave of the House, I shall make a short Statement about arrangements for tomorrow's debate on Iraq and the various contingent business changes.

Iraq: Legality of Armed Force

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

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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,

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    "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. I 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

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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.

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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 co-operation 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

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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,

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    "before 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—

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