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Lord McIntosh of Haringey: My Lords, I am delighted to hear that; I misunderstood the noble Lord. The noble Baroness, Lady Young, made the same point. He is quite right, of course. The significance of that was that the Government decided very early on that we would set a formula for the licence fee until 2006, to ensure that there was no political pressure possible through it during the run-up period to the renewal.
Earl Ferrersthe noble Earl, Lord Ferrers; he likes to be addressed properlymade a point about responsibility for taste and decency on television. He was answered largely by the noble Lord, Lord Dubs. However, under the terms of the Communications Act and associated amendments to the BBC agreement, the core responsibilities of the BBC governors are retained. The Act introduced a number of new external requirements to be monitored and enforced by Ofcom. They include most programme code standards, including taste and decency. There has been no weakening of the regulatory process, although the noble Earl is of course entitled to his view about the result in terms of what appears on screen.
Earl Ferrers: My Lords, does the Minister not agree that, although the noble Lord, Lord Dubs, said that the matter was monitored, the horse has already left the shed? It is only monitored because something bad has been said.
Lord McIntosh of Haringey: My Lords, I understand the noble Earl's point and that there are those who feel that, whatever the rules, there are occasionssome people think that there are large numbers of occasionswhen they are not adhered to.
The noble Baroness, Lady Young, made a point about independent production quotas. It is certainly true that, in 200203, only 21 per cent of qualifying programmes on BBC1 and BBC2 were independent productions. I do not excuse that in any way. The BBC expects to exceed the quota for the present year, 200304, and the governors will monitor the position very closely. I entirely agree that the
I have made a boring speech; I had to make a boring speech. I make boring speeches on the subject all the time, because I cannot do anything else. I repeat the mantra: the result of the process will be a BBC that is strong and independent of government.
Lord Barnett: My Lords, I thank all noble Lords, and the one noble Earl, who participated. The debate has been particularly good, and was enhanced by the maiden speech of the right reverend Prelate the Bishop of Norwich. I am sure that we all want to hear him again on many occasions. He is obviously attuned to the House at a very early stage. He was amusing and had excellent points to make, and we were delighted to hear him.
I obviously cannot refer to many of the speeches. However, the noble Earl referred to me and everyone else who participated as television tycoons. I have never been described in that way before. I do not know whether to thank him, but I have certainly never considered myself a tycoon in any sense of the word. It is very interesting; he spoke of the "F" word being used 1,429 timesI think that he counted it, personallyover a couple of days. I hope that it will not happen again, and that he will be able to stop counting very soon.
I have one comment to make on the excellent speech of my noble friend Lord Puttnam. He wanted to see the board of governors being able to challenge the executive. When the noble Lord, Lord Hussey, was the chairman and I was his deputy, I am happy to say that we always were able to challenge the executive and did. I hope that future boards of governors will continue to do the same.
My only other pointI do not have much more timeis for my noble friend Lord Dubs, who made an excellent point. Everyone who spoke in the debate wanted to see greater independence for the BBC. My noble friend spoke about the possibility of having an independent body along the lines of the Monetary Policy Committee of the Bank of England deciding the size of the licence fee, rather than the Government themselves. I have had a little to do with the Monetary Policy Committee on the Select Committee on Economic Affairs, and I appreciate the point. As my noble friend Lord McIntosh is in a listening mode, rather than having an opinion at this stage, I hope that he took note of that comment, which is well worth making.
Lord Thomas of Gresford rose to ask Her Majesty's Government whether they accept the legitimacy of pre-emptive armed attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter; and, if so, whether they will define the principles upon which it will be exercised.
The noble Lord said: My Lords, when I formulated the Question, I did so in response to comments made by the American President, President Bush, about the new policies that he was introducing. The Prime Minister is following in his wake, as he has on so many occasions. On 5 March, the Prime Minister addressed a meeting of businessmen in his constituency. He said:
War is illegal. There are only two exceptions. The first is armed intervention authorised by resolution of the Security Council. The second is the right of a member state to act in self-defence, as set out in Article 51 of the United Nations Charter, which says:
Self-defence justifies the use of armed force in the violation of another state's territorycrossing a borderin three instances: where an armed attack is immediately threatened; where there is an urgent need for defence; and where there is no practicable alternative to proportionate action in self-defence. In 2003, no threats existed to the territory or to the military forces of either the United States or the United Kingdom.
In the early months of 2003, the noble and learned Lord the Attorney-General gave a legal opinion, which in effect launched the attack upon Iraq since we now know that the generals refused to move without it. He did not seek to suggest in the summary of his opinion that we have been allowed to see that the attack was justified by reasons of self-defence under Article 51. I agree with him.
He justified the invasion on the basis that the 1990 authorisation of force by the United Nations, which launched the first Gulf War, was revived by the failure of Saddam Hussein to comply with the terms of the 1991 ceasefire; in effect, that he had blocked the investigations that were being carried out by United Nations inspectors. I totally disagree with him. The Iraq war was illegal. I do not propose to spend much time on this topic because it is not the main thrust of my argument, but Resolution 1441, when finally agreed in November 2002, did not contain the familiar trigger words that would have authorised the United States, the United Kingdom, or any member state, to take military action against Iraq.
The original draft of the resolution, as disclosed on 2 October 2002, sought to lay down that failure to comply with the inspection provisions of the resolution would constitute a further material breach of Iraq's obligations. It went on:
In all the instances that I have quoted, the Security Council responded not to threats of aggression, but to actual invasion, large-scale violence or humanitarian emergency. Seven weeks of negotiation and exhortation by United States and United Kingdom representatives at the United Nations in October and November 2002 failed to get the explicit authorisation of military force that the Governments of the United Kingdom and the United States were seeking. If they did not need such authorisation because it already existed under the resolutions of 12 years previously, why did they seek it?
I do not doubt for a moment the integrity and professionalism of the noble and learned Lord the Attorney-General, but the refusal of the Government to waive legal professional privilege so that we can see
But now in his latest statement the Prime Minister moves to support American efforts unilaterally to change international law. I suppose the view is that the Security Council did not countenance armed intervention into Iraq: it must therefore be circumvented in some way. It is instructive to remember that the United States led members of the United Nations Security Council in condemning the pre-emptive tripartite aggression carried out by England, France and Israel against Egypt in the 1956 Suez War. The United States was party to promoting resolutions that demanded the immediate withdrawal of British, French and Israeli forces. Later, the United States voted with the other members of the Security Council to condemn Israel for its pre-emptive attack on Iraq in 1981, during which Israeli planes destroyed an Iraqi nuclear reactor. That attack was also condemned by the British Prime Minister, the noble Baroness, Lady Thatcher.
What then is this new doctrine of pre-emption, which certainly did not exist at that time, that Mr Bush and his hard-line administration have adopted? On September 20, 2002, the administration unveiled its new national security strategy. This document addressed the proliferation of weapons of mass destruction and terrorist networks armed with the agendas of fanatics, as they put it. The strategy claimed that these new threats are so novel and so dangerous that they should:
Senator Edward Kennedy, speaking in the US Senate soon after this publication, on 7 October 2002, pointed out that strikes that target a country before it has developed a capability to become threatening are not pre-emptive attacks, but preventive attacks. He said:
So when in February and March 2003 the United Kingdom, with the assistance of Spain, again sought Security Council approval for military action in an oblique fashion by their draft resolution of 7 March, the Security Council was not persuaded. The draft resolution was withdrawn presumably because this
According to Bob Woodward, extracts from whose book, "Plan of Attack", are published in the Washington Post today, the President told Mr Blair on 12 March 2003 that he had had it with the resolutions:
Where do we now stand? Should we traipse into a war on the say so of the President of the United States? Do we ourselves declare war simply on the basis of our own intelligence sources which so singularly over-estimated the threat posed by Iraq? If we abandon the need for authorisation by the United Nations, what other principle is to be applied?
Critics in the Prime Minister's own party have had their say. Tam Dalyell denounced Tony Blair's Sedgefield speech as "passionate, self-justifying drivel". Robin Cook, writing in the Independent on 19 March, the anniversary of the invasion, said:
Does the growth of international terrorism change the parameters? The answer is no. The Iraq invasion itself was not a response to terrorism because no link with Al'Qaeda was ever claimed by the British Government. And as for Afghanistan, the Security Council immediately passed resolutions which recognised the right of the United States to defend itself against the attack of 9/11 and eventually authorised the invasion of Afghanistan. It had full United Nations Security Council approval. The United States did not complain then about the United Nations' response.
If one state can claim the right in international law to defend itself by pre-emptive military action, entirely on its own assessment of a potential future threat, then every state can claim it. The security of the world in every part will be destroyed.
Secondly, in a lifetime spent in international work in and out of Westminster, I have become convinced of the imperative of the rule of law internationally. In doing so, two other considerations have increasingly struck me. First, it is not just a matter of having a rule of law; it is a matter of having equal access to the rule of law and consistency in its application. Therefore, if we in the United Kingdom, together with our friends in the United States, are advocating the cause of the international rule of law, we should be at all times exemplary not only in the detailed legal requirements but in the spirit in which we observe it. After all, we in our own society have for a long time said that it is a matter not only of justice being done, but of justice being seen to be done. People must feel that what is being done is in accordance with the law.
Having said that, and again drawing on my experience of international work, it would be naive to suggest that in the highly dangerous world in which we now live there are no issues surrounding the possible need for pre-emptive, perhaps even preventive, action as distinct from waiting to react. The cost of waiting to react could be incalculably great. But I would argue that in the greater cause historically of the sustainable rule of law across the world as a whole, it is more important than ever that any changes in the rule of law are approached honestly, in a considered and balanced way, through political debate at international level so that international consensus is built behind what is being done.
But if we are also talking about preventive and pre-emptive action, there is another lesson to be learnt. It is a sensitive issue, but it is no good dodging it. If such action is to be contemplated, it is indispensable that that action is based upon sound, carefully evaluated intelligence and not upon what can be imagined by people, whether that is fair or not, as a political decision to take certain action for which intelligence is then collected to justify the political decision. That is an absolutely crucial consideration.
My next point is that it is rather like discussing the Bible and other documents of equal significance. There is a danger about debating specific articles of the charter. The charter is a carefully crafted document. One has to look at the charter as a whole.
The noble Lord, Lord Thomas of Gresford, quoted from Article 51 and I shall not bore the House by quoting it again. However, in this context one has to look at Article 39 to which the noble Lord referred. It states:
So what was the action in Iraq about? The only justification under Article 51 was that there was an imminent and overpowering threat. As we have seen, that has not been established. It makes it all the more questionable why the methodical work, which was being undertaken by the UN through its inspectors and so on, should have been short-circuited, rather than waiting until that work was completed and there was a chance to evaluate it. It is apparent that there was not an overriding case in terms of imminent danger and overpowering threat.
Of course, weapons of mass destruction were central to the argument. Weapons of mass destruction have not been found. I have always been a little cautious about saying that because the weapons have not been found that shows that the war was illegitimate. It is theoretically possible that the weapons may still be found. I believe that it is highly unlikely, but it is possible. My concerns are about whether they could have been deployed overpoweringly and speedily, justifying action under Article 51, and about the need for UN authority.
Another argument is that the Iraqis failed to act in accordance with previous UN resolutions, to which the noble Lord, Lord Thomas, referred. But the previous UN resolutions dealt with the material, the weapons and so on that could be a threat. The evidence is still conspicuous by its absence in terms of overweening urgency in this situation.
Reflecting on these matters, I have come to the conclusion that it would be wanton irresponsibility on the part of the Government not to take the issue of international terrorism seriously. We all have to be prepared to consider how the new challenges, which until quite recently we never envisaged, should be tackled. I have a great deal of feeling for the responsibilities that lie on the shoulders of my noble
If we are to tackle the issue of terrorism, it is not just an immediate terrorist threat in a specific situation that should concern us; we should be concerned that terrorists operate and succeed in a climate of significant, widely-based ambivalence. If many thousands or millions of people do not get up every morning saying, "Our first task is to eliminate, to reveal, to bring to justice terrorists", if people whose plight is so terrible in economic and social terms that sometimes they wake up in the morning saying, "They are doing terrible things, how horrible, but perhaps they are on our side, even though the action they are taking is wrong", then the terrorists have the climate that they seek which gives them maximum room for operation because there is a climate of ambivalence.
We therefore have to be resolute in tackling the issues of economic and social justice. But it is not simply a matter of economic and social justice on which we have to be resolute, but also the matter of political power. Coupled with the economically and socially disadvantaged, there are many highly intelligent, extremely well-educated people in the world who feel totally excluded from the power structures of the world. That is a diabolical mix which gives terrorists the best possible situation from their own standpoint in which to deploy their wickedness.
We have to tackle the issues of the distribution of power. We have to show that when action is taken it is not just taken by a small, well-endowedliterallygroup of nations, telling the world how it should be run, but that it is undertaken with the maximum possible endorsement by the international community. That is absolutely essential to winning the battle for hearts and minds. That is why I have always felt that it is unfortunate to suggest that before such action is taken, there is a legal requirement alone to have a UN Security Council resolution. As the law standsbefore we change itthat is certainly a requirement. But what really matters is that such a resolution by the Security Council should be the seal of authority on an international consensus that has been built. The task is to build international consensus and not to say that we are dispensing with collective international responsibility and taking over the running of the world ourselves. That is the issue. Language becomes very important. It is not a matter of saying, "We are going to do this", or "We are going to do that". It is a matter of saying that together with all the people in the world who care, together with those in Iraq who care, we shall do those things so that the responsibility is shared.
I know that the case was put together on the basis of previous resolutions. I have alluded to the degree to which those previous resolutions may not have been contradicted quite in the way in which sometimes it is easily assumed they were contradicted. Much more importantly, if something of the significance of Iraq was to be undertaken, it seems to me that it was
I conclude by saying that we are now looking at the future. I think that the world has been extraordinarily forgiving. People across the world are now looking at the future and at what we are to do for the future of Iraq, the future of stability in the region and the future of stability throughout the wider world. I beg the Government to learn from what has happened in recent years. It really is absolutely essential that in all that is done for the future we have the explicit, specific and demonstrable authority of the international community as represented in the authority of the United Nations.
Lord Mitchell: My Lords, I too am grateful to the noble Lord, Lord Thomas of Gresford, for introducing the debate. It is a pity that more noble Lords are not speaking on this important topic, but the hour is late. Like my noble friend Lord Judd, I rise with some hesitation; perhaps more so. This is a debate about international legalities. Many noble Lords who spoke today, as my noble friend Lord Judd said, are themselves eminent and learned members of the legal profession. I am not a lawyer and perhaps I feel a little out of my depth. But the subject is important and I have certain views that I should like to add.
I suppose it was inevitable that the discussion today would centre on Iraq, which is one of the two centres of great unrest in the Middle East. I shall not speak about Iraq but will confine my points to Israel and Palestine. Is it not odd that in a part of the world where Turkey occupies part of Cyprus, where Syria occupies and controls Lebanon and where Armenia occupies part of Azerbaijan, that only Israel seems to bear the brunt of occupation and has to answer questions about pre-emption? Much of what I will say this evening will be centred on the fact that other countries, including our own, take pre-emptive action, but it seems to be Israel that is singled out and treated with a harsher level of condemnation.
It would be useful to look at some of the background to the situation. Perhaps noble Lords will bear with me. I know that much of it is known, but I should like to make a few points. For three and a half years Israel has been subjected to a horrendous and continuous barrage of Palestinian-instigated violence from within the West Bank and Gaza Strip; 400 civilians have been killed, which is equal to two Madrids, in a country of 6 million people. What is not often mentioned is that many of the peoplein this case 2,000have been horrendously injured, often by flying ball bearings and nails.
The Palestinian Authority has taken almost no steps to comply with its fundamental obligations under the Israeli-Palestinian agreements to combat terrorism, to arrest terrorists, to confiscate illegal weapons, to prevent incitement and to co-operate on matters of security. To the contrary, Palestinian officials have consistently supported and encouraged terrorist actions and engaged in incitement.
In order to comply with its responsibility to protect the lives of its citizens, Israel has initiated a series of defensive measures intended to protect the lives of its civilians, while limiting, as far as possible, injury to Palestinian civilians.
Painful dilemmas are created by the fact that the terrorists invariably locate themselves within civilian areas. While the prevention of injury to civilian bystanders must be a paramount concern, the fact that a terrorist deliberately places himself within the civilian population does not grant him immunity.
Noble Lords will remember that in the Bosnia crisis, in Kosovo and latterly in Afghanistan, we ourselves have been faced with the same dilemma. It is in the nature of cowards to hide behind the skirts of civilians, and hospitals and schools are their buildings of choice. What wonderful propaganda it makes for them when a shell explodes in the wrong place.
Among these defensive measures, as a rare and exceptional measure, is the targeted killing of terrorists acting with impunity from within the Palestinian territory. Considered use of this measure is both lawful and appropriate.
I should like to look at the right of self-defence in the face of terrorist attacks. No state is required by international law to remain passive in the face of an armed attack. This is a cardinal principle of customary international law.
Israel's options for prevention have been severely narrowed by the failure of the Palestinian side to comply with its obligations to combat terrorism, and, to the contrary, by its active support and encouragement for many terrorist acts.
The alternative to targeted killingsin other words waiting for more innocents to be blown apart by Hamaswill result in far more deaths than those that occur in targeted killings. Until the Palestinian authority can effectively suppress terrorist activity, Israel is left with no choice but to dismantle the terrorist infrastructure itself.
Let me address Article 51 of the United Nations charter. The noble Lord, Lord Thomas, summarised some of its key points. Israel remains in the position of being barraged with attacks by a terrorist group, which explicitly promised to persist. Israel is not required by international law to remain passive in the face of these armed attacks. Use of phrases such as "assassination" and "extra-judicial killing" to describe such defensive acts is just a little inappropriate.
"Assassination" is generally used to describe the murder of a prominent person or public official for political ends. The targeting of terrorists focuses not on the public role of the individual, but on the role played by him in the murder of innocent civilians, and has as its goal not political motives but the saving of lives. "Extra-judicial killing" implies that an alternative legal recourse is available and has been deliberately ignored. On the rare occasions that Israel targets terrorists, it is precisely because no legal recourse is available. As such, the policy is no more extra-judicial than any individual using force to defend themselves from attack.
I turn to the fourth Geneva Convention. Some have contested that terrorists cannot be targeted in this manner due to protections afforded by the Geneva Conventions. That claim is unsubstantiated, however, as the Geneva Conventions are intended to protect civilians during times of hostilities. It follows that an individual who actively promotes and engages in terrorist attacks, utilises weaponry and armaments, or leads a hostile military organisation, cannot be defined as a civilian by any stretch of the imagination. He or she could not expect to benefit from those protections provided for civilians under the conventions. Put simply, it seems to me that those individuals who directly and actively partake in hostilities forfeit the immunities of civilians under those Geneva Conventions.
I should now like to address the topical issues of the killings of Rantissi and Yassin as well as other Hamas leaders. This is clearly an issue that causes great worry and much hand wringing. Sometimes I throw up my hands with disbelief when I hear the words that are uttered in support of these brutes, thugs and killers. These people, the Hamas leadership, have only one redeeming featurethey tell the truth. They say they want to kill all Jews, that they will never recognise the state of Israel and that they want an Islamic state from the Jordan to the Mediterranean. That is what they say and it is true. And as I said in your Lordship's Chamber last week, Jews take it very seriously when a leader says he wants to kill us all. We have heard it before and we did not believe it. These days it tends to concentrate the mind. Rantissi was one of the leaders and proponents of an extremist terror organisation which has committed 425 terror attacks, not including those that have been foiled by the Israeli defence force, killing nearly 400 Israelis and injuring more than 2,000.
The Hamas doctrine leaves Israel with little feasible alternative. These circumstances necessitate that a state, which is responsible for the welfare of its citizens, defends them from such attacks. Past terror attacks, and the certainty of them in the future, compel Israel, as it would any other state, to defend itself and its citizens from terrorists who promise intentionally to inflict tremendous harm.
That leaves another hypocrisy. When coalition forces in Iraq successfully targeted the sons of Saddam Hussein, nobody cited Article 41 or the 4th Geneva Convention. Rantissi, like his predecessor, Sheikh Yassin, was responsible for the sort of indiscriminate killings of which the Hussein brothers would have been proud. Therefore, it must be asked why Israel's targeting of Rantissi was so deplorable when the death of the Hussein brothers was widely supported by the international community. Here is yet another hypocrisy: when our special forces based in Afghanistan and Pakistan are busy, presumably, tracking down terrorist number one, Osama bin Laden, nobody complains. Indeed, I suggest that there would be some rejoicing were he to be removed from the scene. So why should Israel be treated any differently?
I wish to remind noble Lords of an occurrence where Israel did take pre-emptive action, which has already been mentioned in this debate, and that was widely condemned by countries around the world. In 1981, the Israeli Air Force bombed the Osirak nuclear plant in north-east Iraq. At that location Iraq had been developing its own nuclear bomb and was close to going live. The plant was flattened. Saddam's nuclear hopes were destroyed. Israel reacted as she did because she felt that her existence was being threatenedand so she was. Had Israel not taken that action, imagine Saddam and his sons with the bomb. Imagine him marching into Kuwait, Iran and Saudi Arabia. What would we have been able to do? Absolutely nothing. Sometimes pre-emptive action saves the day.
Lord Jacobs: My Lords, I am grateful to noble Lords for enabling me to speak briefly in the gap. As my speech follows that of the noble Lord, Lord Mitchell, I had guessed that I would hear much about the Israel/Palestine situation with which I agree. I shall make just one comment on that. Sheikh Yassin, who was recently the subject of a targeted assassination, had made the statement:
I wanted to speak because I was quite surprised that my noble friend Lord Thomas of Gresford apparently relies entirely on the rule of law. That is a good idea in principle. But if the rule of law must be adjudicated at times by the UNand in order to comply with the rule of law, before making attacks on other countries, one must get the permission of either the Security Council or the UN; I am unsure whichthat is a belief in the UN that I find difficult to share.
If, when the terrible massacres were occurring in Rwanda, an appeal had been made to France or even the United States to send in troops to try to prevent the violence, the UN might not have authorised that. In that case, under the rules as I understand them, the
In the same way, what would have happened if the Holocaust had been occurring only within the borders of Germany, and if Germany had not been at war? At that time, would we have authorised other countries to go in to prevent the Holocaust? I have not yet heard anyone address the issue of massacres, which tend to occur within a country.
The same applies to Bosnia. The massacres that took place there were an issue brought before the UN. So far as I can recollectI admit that I have not researched it for todaythe UN was disinclined to support any attacks on the Serbs to prevent what was going on. As usual, it took America's effort, supported strongly by Britain, to bring the necessary attacks upon that country without UN permission and to bring the massacres to an end, with a peace agreement arrived at in due course. The entire reliance on the UN frightens me.
My last point is one that the noble Lord, Lord Mitchell, made. It relates to the attack on the nuclear establishment of Iraq. At that time every country in the Western world, and probably elsewhere, verbally attacked Israel for such a dastardly act. But during the Gulf War it was interesting to note that not one country felt that the destruction of Iraq's nuclear establishment was anything but good. Incidentally, had Iraq's nuclear establishment not been destroyed, might it not have used it when the war commenced?
Lord Henley: My Lords, I start by disabusing the noble Lord, Lord Judd, of the fact that I am a distinguished lawyer. That accolade belongs to the noble and learned Lord the Attorney-General, whom we are very grateful to see, and the noble Lord, Lord Thomas of Gresford. I might be a lawyer, but I am not distinguished. I have forgotten most of the law that I ever knew. The simple points that I shall make are largely political rather than legal.
I congratulate the noble Lord, Lord Thomas, on bringing forward this timely debate. He ranged widely, and, possibly taking the advice of his noble friend Lord Russell, my noble kinsman, started off with the Treaty of Westphalia. I am afraid that my research took me back only to 1837, when the United States Secretary of State Daniel Webster, following the attack on the "Caroline", explained that to qualify as self-defence, there must be,
Obviously, going on from self defence to what we could term anticipatory self defence, there is considerable controversy. I do not wish to be drawn into that this evening, although that is properly the subject of the debate. I will concentrate more on the simple issue of the recent Iraq war, and the reasons put before another place as to why that war should be justified and why certain of us in another place voted for going to war. My noble friend the shadow Attorney-General, Dominic Grieve, made clear in a debate in another place on 9 March why he voted for the war:
We are therefore grateful that Her Majesty's Government's most senior law officer, the Attorney-General, is with us this evening, and we hope that he will be able to explain in some detail why he made that decision. As I think he knows, we on these Benches feel that there is a strong need to publish the full legal opinion that he offered to his colleagues in the Government to encourage them, and no doubt the senior military, about the legality of the war. My honourable friend the shadow Attorney-General made it clear, again in that debate, that we accept that normallyI stress normallythat kind of legal opinion is not published. However, this is not a normal occasion.
However, we are involved here with some complicated issues and with the vagaries of international law. We are also confronted with the fact that there were reports that there was another legal opinion from the Foreign Office that came out against the war. Perhaps the Attorney General can confirm this, but as I understand it, the author of that report resigned as a direct result of going to war.
As I made clear, normally we would accept that the advice from the Attorney General should remain confidential, but on this occasion, in March of last year, a summary of that advice was published by the Government. They argued that this compromise meant that the opinion was made public, but that confidentiality could be preserved. The summary stated:
It seems to me, as it did in that debate on 9 March to the principal Liberal Democrat spokesman, Sir Menzies Campbell, that the principle, or the convention, that such advice not be published was breached by that publication, and also that it was a recognition by the Government of the special circumstances of the time. Again, I stress that my honourable friends, many of whom voted with the Government on that occasion, voted on the basis of what limited advice they sawthey did not see the full adviceand on the Government's intelligence assessments. It seems that the Government therefore recognised that there were special circumstances, and it seems that the case for publication of the noble and learned Lord's advice is a pretty strong one.
The Question that we are dealing with tonight can go much wider than the simple issue of the legality of the war in Iraq. Other noble Lords have commented on the situation in Israel and in other parts of the world. The noble and learned Lord could, if he wishedI hope that he will nottreat us to what might amount to an academic dissertation on the generality of the possibility of action under Article 51 of the United Nations Charter. In the light of the Question, it would, I suppose, be legitimate for him to do so. However, following last year's events and given the importance of the decisions that the Government and Members of another place had to make when they voted for the war on the basis of the intelligence dossiers that were published, we understand, after a certain amount of editing and on the basis of the advice given by the noble and learned Lord the Attorney-General, that this debate is another vehicle for the noble and learned Lord either to explain his advice in some detail orfar betterto agree to its publication.
Certain members of the Government have seen the advice. I understand that some members of the Government who later resigned, such as Clare Short, claimed that they had not seen the advice. We owe it to them, to those who voted in another place on the war and, more important, to the Armed Forces who did the fightingmany of whom paid the ultimate priceto let the legal opinion see the light of day. Whatever the noble and learned Lord the Attorney-General says this evening, we cannot in future let our soldiers go into battle with serious doubts about the legality of their action. From the Chief of the Defence Staff downwards, all must have full confidence in the rightness of what the Government ask them to do.
It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. That can be traced back to the "Caroline" incident in 1837. If the noble Lord, Lord Henley, will not accept the description "distinguished lawyer", he can at least accept "accurate lawyer". It is not a new invention. The charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.
The Government's position is supported by the records of the international conference at which the UN charter was drawn up and by state practice since 1945. It is therefore the Government's view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.
The concept of what constitutes an "imminent" armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al'Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.
Two further conditions apply where force is to be used in self-defence in anticipation of an imminent armed attack. First, military action should be used only as a last resort. It must be necessary to use force to deal with the particular threat that is faced. Secondly, the force used must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.
In addition, Article 51 of the charter requires that if a state resorts to military action in self-defence, the measures it has taken must be immediately reported to the Security Council. The right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. That is the answer to the Question as posed.
But I go further, particularly because it has been suggested that the military action taken against Iraq was based on an alleged right of pre-emptive action against Saddam's possession of weapons of mass destruction. Perhaps I may say very clearly that that is not the case. It has never been the position of the Government that the military action against Iraq was legally justified on grounds of "pre-emptive self defence". In particular, I should like to say to my noble friend Lord Judd that that was not the basis of this Government's action.
As your Lordships are aware, my view of the legal basis for the use of force against Iraq was set out in a Written Answer to my noble friend Lady Ramsay of Cartvale on 17 March 2003. On the same date, my right honourable friend the Foreign Secretary submitted a memorandum to the Foreign Affairs Committee which gave further detail of the legal position. Those documents made clear the Government's view that a legal basis for the use of force against Iraq existed in the combined effect of UN Security Council Resolutions 678, 687 and 1441.
It is evident, therefore, that the legal basis for the use of force against Iraq was not to be found in an alleged right of pre-emption, but rather in an authorisation given by the Security Council. Perhaps it is regrettable that the detail set out in those government documentsin particular, the FAC memorandumis often overlooked by those commenting on the legal position.
The noble Lord, Lord Henley, raised, as has been raised previously, the issue of disclosure of such advice as I may have given to the Government. There have been many calls for that. But the Government have made it clear repeatedly to this House and another place that they do not intend to do so, given that there is a long-standing convention, adhered to by successive governments, that advice given by the Law Officers is not publicly disclosed. The convention enables the Government to seek and receive full and frank legal advice in confidence. That is in the public interest so that governments of whatever party take full and frank legal advice and act in accordance with the rule of law. I do not intend to say anything different today. I disappoint the noble Lord, although I suspect that there is no surprise in my saying that.
I take the opportunity to address some of the criticisms levelled at the legal position set out in my Written Answer. In doing that, I should like to make it clear that I am expressing my view of the legal
I want to make four points. In a sense, this responds to allegations made today or previously by those who take a different view; I always respect an alternative legal point of view. The first allegation is that the action was unlawful because it was not authorised by the Security Council. In my view, that is not correct. Resolution 678 explicitly authorised the use of force. The second allegation is that the authorisation to use force given by the Security Council in Resolution 678 cannot be relied on in 2003. That is perhaps the principle argument that is raised. The noble Lord, Lord Thomas of Gresford, made it today.
However, the view that the authorisation in Resolution 678 is capable of being revived by a material breach by Iraq of the ceasefire conditions imposed in Resolution 687 is not new. That is supported by, first, previous practice of the Security Council. The coalition took military action against Iraq on the basis of revived authorisation from Resolution 678 on two previous occasions, in 1993 and 1998under two different governments, Conservative and Labourfollowing determinations by the Security Council that Iraq was in violation of its obligations.
Thirdly, that is supported by the terms of Resolution 1441. Resolution 1441, which I remind noble Lords was passed unanimously, 15 to nil, by every member of the Security Council, including Syria, makes explicit reference to the authorisation to use force in Resolution 678 and to the fact that the ceasefire was based on an acceptance by Iraq of the conditions set out in Resolution 687. This is a clear indication that it was understood by the members of the Security Council that a determination that Iraq was in material breach of its obligations would revive the authorisation to use force in Resolution 678.
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