Legal Status of Nuclear War

HL Deb 12 March 1986 vol 472 cc630-49

3.11 p.m.

Lord Jenkins of Putney rose to call attention to the legal status of nuclear war; and to move for Papers.

The noble Lord said: My Lords, as Jane Austen would probably never have said, it is a truth universally known to mankind that the more important the subject the fewer are those who wish to discuss it. Nevertheless, that may give those of us who do take part the opportunity to develop our arguments a little more fully than otherwise might have been the case. One hopes that that may be of some benefit. It will give me the opportunity, if your Lordships will permit me, to repeat a personal reminiscence which I have inflicted upon your Lordships once before. But as it is essential to introduce my own attitude to this subject and my knowledge of the subject (and if he had stayed in his place it would certainly have helped the noble Earl, Lord Halsbury), I hope that your Lordships will bear with me to that extent.

The personal reminiscence is that on 5th December 1940 the Clarendon Press issued No. 42 in its series of Oxford pamphlets on world affairs. The booklet was entitled What Acts of War are Justifiable? It was written by a memorable man, A. L. Goodhart, who was at that time Professor of Jurisprudence at the University of Oxford. There will be noble Lords in this House who will recall not without reverence the personality of A. L. Goodhart.

What Acts of War are Justifiable?—I still have my copy of this little pamphlet—was provided by the Bureau of Current Affairs to officers in the three services. I received my copy in 1941 when I was commissioned in the Royal Air Force. Those facts in themselves might have conceivably persuaded the noble Earl, Lord Halsbury, who intervened the other day, that my interest in the defence of this country is not, as he supposed, something that happened last week, but has been going on possibly for even longer than his own. It is a most powerful and informative tract. It carried great weight and at the beginning of the last war the British forces were informed by the civilised ideas that it enunciated. Under the influence of those ideas pilots dropped their bombs into the sea rather than risk killing civilians, if they could not find the exact military targets. Aircrews lost their own lives rather than risk killing defenceless old people, women and children. They died rather than be guilty of breaking what Professor Goodhart called the "greatest triumph of international law", the separation of civilians from combatants.

Goodhart in his pamphlet condemned the Nazis for their devastation of Rotterdam and for their aerial bombardment of Coventry and London which was already taking place as he wrote. Nevertheless, he said: This need not make us despair for the future. International law as recognised by the civilised nations will not cease to exist because one state has deliberately violated its provisions … It is to re-establish the laws of war in a world threatened with barbarism that this war is being fought". Alas, Coventry was followed by Hamburg and Dresden. We were breaking the rules of war even more barbarously than the Germans. In the end came Hiroshima and Nagasaki; acts which possibly even bear comparison with those of the Nazis because they carried on into following generations and because they marked what may yet prove to be the beginning of the end of our civilisation.

Goodhart was right to say that when he wrote we had no cause for despair. But those who do not despair about what has happened since are deceiving themselves. The combination of the capacity to exterminate the human race simultaneously with the removal of international inhibitions against doing so must be a totally lethal one. The question therefore becomes not whether but when. The answer? That we do not yet know, but there is as yet no sign of that worldwide rebellion which alone can prevent the nuclear weapon achieving the end which many of us have seen it directed towards, which is the destruction of the human race.

And people yet still act as though the use of this weapon is a rational possibility. The Prime Minister, as I said just now, refused an opportunity to discuss the question of a test ban, presumably because we are committed to testing Trident.

It is significant that the indiscriminate mass slaughter of civilians without pretence of target limitation, the use of the nuclear weapon in war, was carried out at the time by the only nation capable of the deed, the United States. The inability of the American Government to see evil other than in the Soviet Union consorts ill with this massive crime of their own. This is not to say that since 1945 the world has taken a fatalistic view of the consequences of the American action in Japan. Just as the Hague Conventions of 1907 and the League of Nations in 1938 declared civilians to be safe and sacrosanct under international law so the London Agreement on War Criminals in 1945 reasserted that view. They declared that international law was superior to national law, that Government leaders and subordinates were equally guilty when a war crime was committed and that superior orders were no defence and that a war crime included: wanton destruction of cities, towns or villages". The wanton destruction of humanity itself was not mentioned as, even when those rules were adopted, understanding of the full horror of the ultimate use of the nuclear weapon in its later form was still in the future. Concern nevertheless continued. In 1977 an extensive new protocol was adopted which was: to reaffirm and develop the existing protections". Under this protocol methods of war were limited to those not causing widespread damage to the environment or causing unnecessary suffering. The study, development, acquisition or adoption of new weapons was prohibited if they were in breach of the protocol. Furthermore, civilians were not only protected from attack—they were not even to be threatened with it. I wonder who among us in any part of the world truly feels unthreatened today.

The British Government of the time then followed the United States in entering a reservation to the protocol declaring that, as far as they were concerned, nuclear weapons were not covered by it. It is upon that reservation that all governments since have chiefly relied in their claim that nuclear weapons are not in breach of international law. I think that the right thing to have done, if that was the intention, would have been to refuse to sign the protocol which was chiefly intended by those who introduced it to protect against nuclear weapons and to condemn nuclear weapons.

Instead, we, the British representatives, followed the Americans in pretending (on our side, very quietly pretending) that it was possible to cancel out the main purpose of a protocol, and indeed all previous humanitarian legislation, by signing subject to what I suggest was an invalid reservation. And even if it was valid, it was not effective on any other previous legislation but only in respect of that protocol itself, which was to be in extending, clarifying and making further the existing laws of war. This was really an appalling act and it was performed by two members of a government which I must freely admit was a Labour Government. Both of them have since left to join the Social Democratic Party, which of course—and its position is quite understandable—remains a pro-nuclear party.

It may be that the Labour Party's increasingly unequivocal commitment to nuclear disarmament was among the reasons for their departure from the party and their formation of a party which was not lumbered, as they perhaps saw it, with Labour's commitment to nuclear disarmament. But the manner in which the action was announced indicated something rather less pleasant than a conviction in favour even of nuclear weapons; because this vital decision affecting the future of everyone was buried among pages of Written Answers on 14th December 1977. There were two columns in answer to a Question from Mr. Roderick MacFarquhar, MP, who, like the two Ministers directly concerned, has also since joined the Social Democratic Party.

Among a wadge of print without any separate paragraphs there were a couple of lines which indicated that the British acceptance of the protocol will be subject to the reservation that they, did not regulate or prohibit the use of nuclear weapons". This is the basis, the invalid and lamentable basis, of the Government's claim that they are not in breach of international law by deploying nuclear weapons. I think they are, and I believe that they know it. The Minister who actually carried out the operation was Mr. Evan Luard, a distinguished fellow of St. Antony's College, Oxford University, who was Under-Secretary at the time to Dr. David Owen, who was the responsible Foreign Secretary.

So we come full circle at Oxford University, from Goodhart, who said that civilians were sacrosanct, to Luard, who says that they may be murdered provided it is done with nuclear weapons on behalf of the British Government—and not on behalf of himself personally, of course. Incidentally, the full text of the reservation was quietly deposited in the House of Commons Library away from public notice where it still rests and may, I think, be inspected by noble Lords.

I look to this House to save the reputation of Parliament in this matter and in doing so to rescue Goodhart's claim from oblivion. He said, and I repeat it: It is to re-establish the laws of war in a world threatened with barbarism that this war is being fought". If Goodhart was wrong, if governments continue to pretend that the mass destruction of people and preparations for such destruction are permissible, then, as I have said before, our species is likely to have a future which is nasty, brutish and short.

I hope that when he comes to reply to this short debate the noble Lord the Minister will abandon his brief and say that he too wants to avoid the collapse of our civilisation into total and irretrievable ruin. This is what will happen to us if we go on as we are now, unless we can respond in that way when we see something offered from the other side instead of saying, "No, we must go on with what we are doing". It is because everybody on both sides says, "No, we must go on with what we are doing, we have a duty to maintain our right to have nuclear weapons internationally and nationally"—that, if we go on saying that, eventually the nuclear weapon will destroy us.

I say that we want a new outlook on this matter. We want a readiness to discuss. The first thing that the Government could do would be to look again at the decision they have taken on the question of the test ban. They could at least be ready to discuss it. If it is bluff, let the Government go and call that bluff. Let us at least start those discussions on a realistic basis and not with the sort of ritual dance which has been going on at Geneva for far too long, in which each side puts forward its own proposals and fails to listen to the other. Let us have some real negotiations, some real discussions on the reality of the subject; and then, and only then, shall we be able to approach the question of removing the nuclear shadow which still hangs over mankind. My Lords, I beg to move for Papers.

3.27 p.m.

Lord Rea

My Lords, I think that we should all be very grateful to my noble friend Lord Jenkins for raising this highly important and relevant matter. I am the first to admit that I am not well versed in legal matters, but the topic is of such basic importance that I felt that a medical input could be justified. I am extremely surprised and sorry that we do not have on the list of speakers any noble and learned Lord; for I think we could have had a very useful input from the legal profession.

In our personal lives, most of us try to live within the law because the laws of this country are reasonable and are designed to protect citizens who are going about their daily business. However, we know that aggression is a basic human characteristic and that, properly directed and controlled, it can act as a spur to achievement. Who has not heard of aggressive marketing? As far as I know, I do not think that aggressive doctoring would go down very well, but occasionally even violent aggressive behaviour can be justified for self-defence or under extreme provocation. But within society the law lays down strict limits to aggressive behaviour. Assault, even with bare fists, is usually regarded as an offence and the use of offensive weapons is certainly illegal. The mere possession of a potentially offensive weapon is often held to be an offence in itself. This, I submit, is obviously relevant to our discussion this afternoon, but I shall speak more of that a little later.

Conduct between nations when they are not at war is governed by a series of international agreements. The United Nations is the main but by no means the only forum where agreements on a huge number of topics are discussed and drawn up. As most people are aware, the conduct of nations while at war is also subject to regulation by international conventions and agreements. These are usually drawn in the light of painful experience after wars are over. As my noble friend has pointed out, this is a point we may not be so lucky as to reach should a nuclear war occur.

The international agreements which seem to be relevant to the issue of nuclear war have mostly been described by my noble friend—The Hague Convention of 1907, for example. Article 23 in the annexe says, among other things, that it is especially forbidden to employ poison or poisoned weapons or to employ projectiles or material calculated to cause unnecessary suffering. Article 25 of the Convention says that bombardment of towns which are undefended is prohibited. Article 27 states that all necessary steps must be taken to spare buildings dedicated to religion, art and science and also hospitals and places where the sick and wounded are collected, provided they are not being used for military purposes. It is not easy always to distinguish, but efforts must be made to do so.

A further part of The Hague Convention concerns the rights of neutral powers, stating that the territory of a neutral power is inviolable. After the 1914–18 war the 1925 protocol of the League of Nations, banning asphyxiating or poisonous gas, was signed by many states, including ourselves; and gas was not used in World War II. After the Second World War the Geneva Conventions of 1949 dealt with the protection of civilians in time of war, including obligations to see that the population of an occupied state was fed and healthy. As my noble friend has pointed out, it made clear the distinction between combatants and non-combatants. As he mentioned, most recently in 1977 there have been additional protocols to the Geneva conventions. Among these is the statement, which is a slight variation on the one he gave—and I quote: It is prohibited to employ weapons of a nature to cause superfluous injury and unnecessary suffering". There is a further quote: It is prohibited to employ methods or means of warfare which are intended or may be expected to cause widespread long-term and severe damage to the natural environment". At that time I imagine that referred to defoliants, which had recently been used by the United States in the Vietnam war. But now, with the increasing documentation of the probable climatic effects of widespread nuclear war, this paragraph is doubly relevant. It is interesting that when the protocol was written the concept of nuclear winter had not even been discussed.

Other articles in these protocols make more specific the need to avoid attacks which strike military and civilian objects without discrimination and to avoid damage to the environment which might prejudice the health and survival of the population. These are necessarily very sketchy extracts from the many conventions and protocols which form the basis of international law governing the rules of war, but I feel that the relevance of these points to the effects of nuclear weapons is fairly clear. Radioactive dust does not respect the frontiers of neutral nations and it would be almost impossible to avoid damaging the centres of population which include hospitals, or to avoid killing and terrorising large numbers of civilians.

The recent publication, mentioned by my noble friend, from the British Medical Association in its detailed report The Long-term Environmental and Medical Effects of Nuclear War two days ago is highly relevant. The report reveals the increasingly convincing evidence, including the SCOPE report, that nuclear winter would be a very real possibility, in the northern hemisphere at least, if only half the existing stocks of nuclear warheads were used. As my noble friend has mentioned, by putting a reservation on their agreement to the 1977 protocol, the United States and the United Kingdom tacitly admit that nuclear weapons will have effects which are outlawed in the protocol and reserve the right to use them: in other words, to break the agreements when it suits them.

The use of nuclear weapons as a deterrent is the cornerstone which, we are told, has preserved peace in Europe for 40 years. This implies that but for the risk of starting a nuclear war, the Russians would by now have tried to overrun Europe with the tanks of the Red Army. Our Prime Minister only two days ago said that our nuclear weapons are not negotiable. But the present situation is one of mutual overkill capacity to a vast extent. If both sides possessed only one-tenth of their present nuclear weaponry, a terrible deterrent would still be in the hands of each nuclear power. If we unleashed just 50 per cent, of our present weapons, civilisation in the northern hemisphere, as we know it, would probably become extinct. We have now reached the situation that if a massive first strike—and surely that would be illegal—were launched to take out the USSR's capacity to retaliate, the dust and smoke of such an attack could destroy our own environment even if not a single nuclear missile was sent against us in retaliation.

If the use of nuclear weapons would contravene international law, it is surely relevant to ask whether it is legal to possess and deploy them. I know legal experts do not agree that this is so, but the logic would seem to be there. I should like to quote from The Times Law Reports of 21 st June 1984. I am sure that some of your Lordships will have read this and other examples could be found, but this one has been shown to me. It describes the case of Patterson v. Block. I quote: Where a defendant had with him a lock-knife, which was not an offensive weapon per se, and the only evidence against him was his statement to the police that he carried it for his self-defence, the justices could properly draw the inference that for the purposes of defending himself he would if necessary use the knife to cause injury to the person". Lord Justice Kerr, with whom Mr. Justice Woolf agreed, so held in the Queen's Bench Divisional Court on 20th June when dismissing the appeal of Daniel Anthony Patterson against his conviction by Camberwell Green justices for possessing an offensive weapon.

The fact that other people in the community might also be walking around with lock-knives who might attack the defendant was not held to be relevant for a defence. The noble Lord the Minister will doubtless give us the thinking which exempts states carrying offensive weapons which would be illegal in use from being guilty of possession of offensive weapons.

At present the initiative in proposing a freeze or reduction in nuclear weapons is with the USSR. Mr. Gorbachev has put forward his well-known three-phase plan leading to the elimination of nuclear weapons by the end of the century, and the USSR has observed an eight-month moratorium, unilateral, on nuclear weapon testing. The response of the Prime Minister, which is to escalate and modernise our nuclear weapons stock in reply to this initiative, is unimaginative and, in my view, dangerous, let alone economically disastrous with the escalating costs of Trident.

I can think of no period in history in which a gradual build-up of military power by two opposing blocs did not end in conflict. The build-up of nuclear weapons in the second half of this century alarms most thinking people and, as I have mentioned, has already reached gross overkill capacity. This country is in a position to play a very positive role by responding cautiously but I positively to Mr. Gorbachev's proposals. In my view, consideration of the level of conventional weapons should be part of any deal which might reduce or eliminate nuclear weapons.

The hope of all of us is surely that one day political freedom will be permitted in the Eastern bloc and in the USSR. That will come only if first there is a freeze, and then a balanced stepwise reduction in nuclear and conventional weapons—but I am straying into the territory of the next debate in which people much more distinguished than myself will be talking about disarmament.

3.40 p.m.

Lord Hatch of Lusby

My Lords, my two noble friends have already established the legal side of this Motion. I have no doubt that the Government spokesman will be anxious to put the political side, irrespective of its legality. May I add my voice to that of my noble friend Lord Jenkins of Putney and ask the Government spokesman, rather than reading the Civil Service brief, to recognise that this is a national and international debate in which the Government should take part? There should be question, discussion and argument all over this country as there is all over the world.

It is a pity that no noble Lords from the Government side have thought fit to enter this argument. It is not altogether surprising that no Liberal or SDP member is taking part. We know their difficulties, both within their parties and between them. Nevertheless, this is an essential debate. I hope that the noble Lord who is to wind up will recognise that this is a debate about the future of mankind. All that we are asking him to do is to take the argument and the debate seriously and, above all, to recognise that there is a counter argument to that which the Government put forward as though we were going back to the old days of TINA—there is no alternative. It is the alternative which I should like to suggest is worth discussing this afternoon.

A few weeks ago, a noble Lord in this House expressed surprise that my noble friend Lord Jenkins should be concerned about security in this country. That reminded me of the days before the war when many of today's noble Lords, who were then prominent in Government circles, were amongst the appeasement camp and accusing those of us who were opposed to the Nazis and Fascists of being warmongers. At that time, we were pointing out how important sections of the Establishment in this country were in fact helping Hitler to rearm. They were giving him the armaments and the resources to do so. I suggest that the assumption that before the war it was right to be within the appeasement camp is very similar to the assumption that is made today that there is no argument as to whether Britain should continue to possess nuclear weapons.

I hope that the noble Lord who is to wind up will participate in the spirit of the debate—putting a case and contradicting one—because surely the job, task and opportunity of the House is to stimulate discussion throughout the country.

I do not think anyone would deny that we are talking this afternoon about an issue in which there is either universal security or universal insecurity. This affects the whole human race. It does not make any of us feel more secure to know that this year we have five times the resources to wipe out the human race than we had last year or that we shall have 10 times the resources next year and 20 times the resources that we had in the 1950s. The escalation of nuclear weapons is not bringing security to the people of this country or to anyone on our planet.

The case that the Government have put consistently when we have put the issue of deterrence to them, has been that it has brought peace for 40 years. They say that the deterrence of nuclear weapons has produced the longest period of peace that Europe has known for many centuries. Is that not the old mistake of the argument of post hoc propter hoc? Is it not the case that there is no way of proving that the possession of nuclear weapons has prevented war or maintained peace?

The principle of deterrence is really better described as the threat of retaliation. That is what deterrence is. If we examine the threat of retaliation we do not find that it has bought peace. It did not bring peace to Vietnam. It did not bring peace to Afghanistan. It did not bring peace to the Falklands. It has not brought peace to the Middle East. It has not brought peace in Southern Africa. Nevertheless, the supporters of nuclear weapons continue with the assumption that because there has been no major European war for the past 40 years that is due to the fact that we have threatened to retaliate—we have used the weapon of deterrence.

Lord Howie of Troon

My Lords, I have followed the argument carefully, but is my noble friend equating like with like? There have been a number of wars since 1945, but they have tended to be between people who are not in what we might call the nuclear club. When my noble friend talks about the threat of retaliation, there was no question of that between the Russians and Afghans, and so on. Will he turn his mind to the notion that where powers face each other with nuclear weapons they do not go to war but that where countries face each other without nuclear weapons they do? It is a paradox, and not a happy one. Will he face it?

Lord Hatch of Lusby

My Lords, I shall gladly face it. I suggest that the logic of my noble friend's argument is that we should supply nuclear weapons to the Middle East, Southern Africa and South East Asia and that then if both sides had nuclear weapons there would be no conflict. There is another side to the argument which I want to take up shortly. If my noble friend will wait a few minutes he will see that I am approaching the point he made.

It seems to me that the possession of nuclear weapons, while it may have coincided with a period during which there has been no war between those few nations that hold them, has created, sustained and inflamed political conflicts between the nuclear powers. I do not need to tell my noble friend that, in the past, world wars have started from little local conflicts. The fact that for 40 years there has been no major European conflict does not mean that there cannot be one, nor does it mean that if there is a conflict in a remote part of the world it cannot, as in the past, lead to world conflict but, this time, a world conflict in which the weapons of the major powers are sufficient to annihilate the human race several times over.

Another argument that is constantly used by the supporters of the nuclear case, and particularly by this Government, is that the removal of the nuclear side of our armaments would lead to unemployment in this country. I think that that is scraping the barrel. Of course if you stop the manufacture of anything you will lose jobs, unless those workers and that investment are turned to something else. But surely it has been the case for centuries that swords can be turned into ploughshares, and, when one looks at the paucity of manufacturing investment in this country, when one looks at the reduction of employment in the manufacturing industry of this country, one can surely argue much more validly that the use in that manufacturing industry of such resources as have been put into the nuclear industry would have maintained employment, maintained investment and given us a much healthier manufacturing sector.

It is not just the words of those of us who have argued on moral grounds that have to be listened to in this new stage of the nuclear debate. There are military leaders who now say quite clearly that the concept of a nuclear war is outdated and makes military nonsense, and that the emphasis that is put on the manufacture and possession of nuclear weapons is bad for their conception of military strategy, particularly because of the advances that have been made in nuclear technology over the last 10 years or so.

This concept of deterrence through the possession of nuclear weapons presupposes that a nuclear war will be fought. The whole strategy depends upon that. Indeed, unfortunately, there are increasing sections of the United States military establishment which have started to talk about the concept of nuclear victory. That surely makes nonsense. It sounds like a kidnapper holding one pistol to the head of the hostage and another to his own head and saying, "Unless you do so-and-so, I will shoot us both."

Already this afternoon we have had reference to the BMA's report which was published this week and which is worth quoting, because those who are still considering that there is such a thing as a nuclear victory should just listen to the words not of the politicians, but of those who have been spending many months in studying scientifically the consequences of a nuclear conflict. I would simply encapsulate the central meaning in a quotation from three of the eight conclusions.

The report reads like this: The United Kingdom is vulnerable to the effects of a nuclear winter. Only if a large proportion of the population were killed in the attack would there be enough food for the survivors. Distribution difficulties and radioactive fall-out would limit the availability of remaining food supplies. Quite small climatic changes in the appropriate seasons could prevent the growth of future crops. Climatic effects on agriculture in other countries and the disruption of international trade could prevent the import of food needed to keep survivors alive. In addition to starvation, long-term medical effects include increases in cancer rates, genetic diseases and acquired immune deficiency syndrome. The nuclear weapons strategy of the United Kingdom must take explicity into account the likelihood that even a limited nuclear war, particularly in Europe, could trigger a nuclear winter. So the supposition on which the whole concept of nuclear deterrence is based is the supposition of human suicide.

Is there, then, no alternative? I suggest that there is and that there have been specific alternatives proposed by thoughtful men and women in many countries, including our own. This debate is not really about unilateral and multilateral defence. It is a debate as to whether or not in the position of this country, at this time and for the rest of the century, it makes sense to retain nuclear weapons.

Without nuclear weapons we are not defenceless. There is a military school of thought which considers that what is loosely termed "defensive deterrence" is more efficient and more effective than nuclear weapons in the present age, but it depends upon the removal of nuclear weapons from Europe. It is only such a removal, and it is only with such a defensive stance, that the political negotiations which can undermine political tensions and political conflict become possible.

We have heard it assumed this afternoon that without nuclear weapons there would be a heavy overbalance of conventional weapons on the Soviet side. This is not borne out by any examination of the figures, and the International Institute of Strategic Studies can be quoted in support of what I am saying. Of course, it depends on how you use the figures. But within NATO there are many members, such as the Netherlands, Belgium, West Germany, Norway and Denmark, which are considering, discussing and arguing, in a way that we are not in this country, the use of defensive deterrence based upon conventional weapons as an alternative to the nuclear strategy, because they are determined that whatever else happens a third world war will not be started by either side from within Europe.

I think it is a pity that these political policies, which could lead to political solutions to the tensions between the two great power blocs, have been so neglected by this Government, because the concept of a defensive strategy does allow negotiations, does allow an approach on the lines of detente and does allow, above all, much greater confidence in the operations of the United Nations. But, when the present Government are faced by the opportunity of strengthening the non-proliferation treaty through that Clause 6 in it which calls for a reduction in nuclear arms, if other countries like Israel, South Africa and Pakistan are not going to develop their own nuclear weapons, the Government answer with Trident.

When the USSR offers an agreement or a moratorium on testing, the Government turn their back on it. When there has been the suggestion of the removal of intermediate range weapons from Europe, we get the negative letter from the Prime Minister which was published yesterday. When many people in many countries are calling for Europe and, above all, for NATO to declare the principle of "no first use" of nuclear weapons, the call is turned down by this Government. When the tragically late Olof Palme made his proposals on behalf of the Swedish Government for a nuclear-free zone in central Europe there was no response from this Government.

There can be no response to these political initiatives so long as the Government are held within this rigid posture of the assumption that we must have nuclear weapons if we are going to be defended. That is not true politically and it is not true militarily.

I hope that the noble Lord who is to reply will accept this argument and will use the channels of the Government to see that this argument is an open one throughout the country. That is what we are asking for. We are not saying that we have the perfect truth here; we are saying that it must be argued nationally but it must be argued on the basis of real facts and not simply of prejudices.

4.1 p.m.

Lord Graham of Edmonton

My Lords, the noble Lord, Lord Hatch, prevailed upon the Minister to take this debate seriously. I make no such plea because I know the Minister and I know that he intends to take the debate very seriously indeed.

The legality of using nuclear weapons and the legal status of nuclear war is a proposition most certainly worthy of debate. I want to join other noble Lords who have participated in the debate in thanking the noble Lord, Lord Jenkins, and to say to him that he has done this House and many outside who follow our affairs a service in raising this matter. The noble Lord certainly set a very responsible tone. I am glad that the following speeches have taken a lead from that. I fear, however, that somehow it will be almost an exercise in futility for although we have had quoted resolutions, of texts, of conventions—and indeed I intend to do some of that myself—the conventions will be judged by many as mere words, if not of rhetoric then as so much hot air.

The last thing that I intend to do is to denigrate the expression of views, especially those by governments, assembled formally into declarations. But as has already been said, we are faced with a yawning gap which has grown over the years between the words of nations and the deeds of nations. We have had and will have again opportunities to debate the grand strategy in the use of nuclear weapons—global strategy, East and West issues and conflicts, star wars, the real end or the sharp end of the nuclear debate—yet we are entitled as we are doing in this debate to return to some of the basics.

What do we want to see happen? What do we want to see outlawed? We recognise, as I am sure does the noble Lord, Lord Jenkins, that our battle for sanity is with the super powers and not with world opinion. My authority for some of what I have to say is drawn from The Laws of Armed Conflict, a collection of conventions, resolutions and other documents produced by the Henry Junant Institute of Geneva in 1981. I want to begin by referring to Resolution 1653 of the United Nations General Assembly, a declaration on nuclear and thermo-nuclear weapons. In that resolution the General Assembly considered, that the use of nuclear and thermo-nuclear weapons would bring about indiscriminate suffering and destruction to mankind and civilisation to an even greater extent than the use of those weapons declared by the aforementioned international declarations and agreements to be contrary to the laws of humanity and a crime under international law". The General Assembly believed, that the use of weapons of mass destruction, such as nuclear and thermo-nuclear weapons, is a direct negation of the high ideals and objectives which the United Nations has been established to achieve through the protection of succeeding generations from the scourge of war and through the preservation and promotion of their cultures". That is still a matter of record.

I move to 1970. My attention was drawn to Resolution 2936 on 29th November 1972. The resolution recalled the declaration in 1961 which I have just read out and recalled the resolution of 30th November 1966, on the strict observance of the prohibition of the threat or use of force in international relations, and of the right of peoples to self-determination", believing, that renunciation of the use or threat of force and prohibition of the use of nuclear weapons should be fully observed as a law of international life". If I may get down to basics, the use of nuclear weapons in war is one of the most important and serious problems of our age. It endangers the entire future—even the existence—of mankind. No one around this House who argues from either point of view will dispute that once nuclear weapons are used they will threaten the very existence of mankind. If we are raising the question of legality, as we are in this debate, many legal writers and interpreters oppose the use of nuclear weapons. They have not been alone. The International Red Cross has regularly condemned the use of nuclear weapons. The International Law Institute adopted in 1969 a resolution on the difference between military and non-military objects. Many hold the view that all nuclear weapons are prohibited on the basis of the Fourth Hague Convention of 1907 on the Laws and Customs of War on Land. Reference has been made to that by more than one previous speaker.

In my research I was struck by a paragraph from the Toledo Law Review, which was part of an article by Erik Castren entitled: The Illegality of Nuclear Weapons. The passage that I am about to quote sums up the core of the debate which is taking place at this time: We are dealing with a means of mass destruction which is both blind and beyond human mastery and which, depending on the circumstances (like the flow of the air and weather conditions) will kill both soldiers and civilians alike without making any distinction, and destroy both military and non-military objects. The effects of such destruction may continue for an extended period of time, possibly even after peace has been restored and throughout the next generation. Thus, we have a conflict with some of the most important principles of the laws of war, such as the upholding of the difference between soldiers and civilians and military and non-military objects, and the duty to refrain from those measures whose effects will extend long into the state of peace". As I have already indicated, the reality is that it is clear that the status and standing of international declarations is in some kind of disrepute. All laws, national and international, ultimately depend on the pressure of public opinion for their effective observance. I believe that the observance of the existing law is ensured only through knowledge of it, and informed public opinion is not only the best guarantee that international law will be kept; it can also become a source of law in itself and set a standard of behaviour binding upon governments. The resolution of disputes between nations is becoming more and more a legal matter. At least that is the avowed determination of the members of the United Nations in order to save, succeeding generations from the scourge of war and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". Article 2 of the charter says: All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered". Reference has been made to the 1977 protocol. Although my noble friend Lord Jenkins and others have pointed out the inhibiting or excluding clauses in that protocol, I hope that the Minister will be prepared to say more—as must have been said by him before, and by his predecessors—about why the specific use of nuclear weapons was excluded from that protocol.

Lord Mayhew

My Lords, if the noble Lord will allow me to intervene for clarification, is he arguing that the view of the Opposition is that the United States and Britain should renounce even the threat of nuclear war in all circumstances?

Lord Graham of Edmonton

No, my Lords. I am not arguing that in all circumstances the ultimate use of nuclear weapons must be wholly abandoned—not unilaterally. Our posture is one of discussion and negotiation, and we support the negotiations that are taking place at this particular time.

Lord Mayhew

My Lords, then the noble Lord is saying that there are circumstances in which it would be right for the United States and for Britain to violate the protocol and the laws that he is describing.

Lord Graham of Edmonton

No, my Lords, I am not saying that it would be right to violate the protocol. I am saying that I want the Minister to explain to the House why in 1977 that exclusion was made and why it has been maintained in the policy of the present Government.

In this debate, we are able not merely to look at the narrow confines of the words on the Order Paper but also to say something about our attitudes in general—always wanting to avoid having the debate slip into a debate of the type we have sometimes had before. I simply want to reiterate what was said by my noble friend the Leader of the Opposition in the House yesterday and what has been said by my noble friends behind me earlier in this debate.

The Government must apply themselves more seriously to the points that are contained in the nuclear freeze agreements. The Labour Party strongly supports a freeze on nuclear weapons as a first step to their reduction. We want a freeze on the testing and deployment of all new systems, both offensive and defensive. We believe that could be achieved by some fairly simple technical methods, if the two sides agree on the objectives and on the cut-off points. While I say that those methods may be simple, I realise the enormity of each step. Yesterday the Prime Minister, in debate, failed completely to take advantage of the initiatives that have been presented to this Government, to the West and to the NATO countries by the latest pronouncements by the Leader of the Russian nation.

As I have already said, the reality is that it is clear that the status and standing of international declarations is in some kind of disrepute, outwith the arguments that are beginning to develop, even in this debate, as to what was meant, what was said, and what was intended. This debate has revealed that there is on record declarations by governments, pacts and agreements that in reality are being bypassed around the super power table. We are all aware of the series of bilateral talks that have dominated world peace efforts these last few years. We wish them well from this Front Bench, but in the meantime it is entirely proper that we use those forums of world opinion to seek to influence what happens at the negotiating table when there are but two super powers sitting at it. In that context, we are all indebted to my noble friend Lord Jenkins for reminding us that even in your Lordships' House we have a role to play. I believe that we have done just that today.

4.15 p.m.

Lord Trefgarne

My Lords, in rising to reply to this debate I am conscious of the fact that I have about one and one-quarter hours in which to effect my reply. However, your Lordships may prefer it if I contain my remarks within a rather shorter period.

The first responsibility of any government must be the security of the nation. We live in a world where nuclear weapons inescapably exist. It is a world, moreover, in which such weapons are also in the hands of the Soviet Union, a huge power with a massive military strength and a proven willingness to use that strength when it thinks that it can get away with it. In such a world, Western governments are not merely entitled but are positively bound to protect their people's right to peace and freedom by something more substantial than just good motives and hoping for the best. This Government need no convincing of the horrors of war. Any large-scale conflict, but particularly one involving nuclear weapons, would have horrific consequences. The aim not only of this Government but of all their predecessors, and indeed of the present and past governments of all our NATO allies, has been to preserve the peace.

Contrary to what some noble Lords opposite would have us believe, it is important to make the point that NATO is a defensive alliance. It has no aggressive intentions against the Soviet Union, Warsaw Pact, or anyone else. That is why the United Kingdom, together with our NATO allies, has adopted the strategy of deterrence. That strategy remains—as it has for more than 35 years—the cornerstone of British and NATO defence policy. Our primary objective is not to win a war but to prevent one starting in the first place, while at the same time working for balanced and verifiable measures of arms control and disarmament.

The United Kingdom of course has pursued the policy of deterrence, firmly based on a strategy that is entirely defensive. The inherent right of self-defence is recognised by the UN charter. We seek no first strike capability. As NATO leaders have repeatedly made clear, no NATO weapon, nuclear or conventional, will ever be used in Europe except in response to attack. The Soviet Union has never given a comparable assurance.

While deterrence has kept the peace in Europe, it is an appalling fact that since the end of the Second World War, in approximately 160 conventional wars, more than 20 million people have been killed. Western Governments have consistently pressed for discussion at the United Nations on the problem of the conventional arms race. For we wish only to live in peace, safe in the knowledge that we have the ability, as a last resort, to resist any attempt to blackmail us by the threat of superior force.

There is no rule of international law dealing specifically with the use of nuclear weapons. The use of such weapons is governed by the general laws of war. Thus any use of nuclear weapons would have to be judged as lawful or not in the light of the particular circumstances in which they were used, just as is the case with any other weapon. Neither can it be said—in spite of noble Lords opposite—that the use or possession of nuclear weapons is prohibited, by analogy, by treaties dealing with other types of weapons.

Experience has shown that in the progressive development of arms control measures it has not been possible to extrapolate from earlier rules of international law, whether customary or conventional, in order to take account of technical progress. It has always proved necessary to develop new agreements to cope with new weapons and new situations. There may be some superficial appeal, for example, in drawing an analogy between nuclear weapons and poison, poisoned weapons or poisonous gas, but it has to be recognised that a nuclear weapon is in fact none of those and is of a quite different nature.

It is worth recalling that all five nuclear weapons states—the United States, USSR, United Kingdom, France and China—have given assurances that they will not use nuclear weapons against non-nuclear weapons states, save in defined circumstances. Those are the so-called negative security assurances. In the case of the United Kingdom, the assurance was by the United Kingdom delegation at the First United Nations Special Session on Disarmament in May 1978, in the following terms: We are now ready to give the following assurance to non-nuclear weapon states which are parties to the Non-Proliferation Treaty or other international binding commitments not to manufacture or acquire nuclear explosive devices. Britain undertakes not to use nuclear weapons against such States except in the case of an attack on the United Kingdom, its dependent territories, its Armed Forces or its allies by such a State in association or alliance with a Nuclear Weapon State". None could deny that by any objective standard there are too many weapons in the world today. We do not share the gloomy forecasts of those who claim that war is inevitable or that weapons, once possessed, are bound to be used. This would be to deny the validity of the concept of deterrence. But there is no doubt that the world would benefit from a reduction in the level of armaments on both sides. That is why we attach so much importance to the easing of tension between East and West, and to the achievement of realistic, balanced and verifiable measures of arms control and disarmament. To this end, Britain has played a leading role in the search for greater international security and a reduction of tension.

We have been in the forefront of all the multilateral negotiations in the field of arms control and disarmament since 1945, and have become a party to most of the treaties concluded. We have always strongly supported United States and Soviet bilateral negotiations on strategic nuclear weapons and welcomed the SALT I and SALT II agreements, and the Anti-Ballistic Missile Treaty.

Britain, France and the United States have each signed agreements with the Soviet Union on "hotlines" and on prevention of accidential nuclear war. In 1975, 35 countries adopted the Helsinki Final Act on security and co-operation in Europe. In continuation of this process the Conference on Confidence and Security-Building Measures and Disarmament in Europe began in Stockholm in January 1984.

Of course, arms control negotiations are unlikely to be fruitful in a climate of mutual suspicion. That is why the British Government have been working actively to establish and foster better relations with Warsaw Pact countries. Over the past 18 months my right honourable friends the Prime Minister and the Foreign Secretary have had a number of significant meetings with Soviet leaders. In particular, they had an opportunity to hold extended discussions with Mr. Gorbachev when he visited the United Kingdom in December 1984. My right honourable friends visited Moscow in March 1985 for the funeral of President Chernenko, and Sir Geoffrey Howe has subsequently had two meetings with the new Soviet Foreign Minister. We also hope that Mr. Shevardnadze will be able to visit the United Kingdom later this year. We hope that these meetings lead to a better mutual understanding, which is the only sound basis for improvement in East-West relations.

In pursuit of this aim the Government warmly welcome the current negotiations between the United States and the Soviet Union on nuclear and space arms. The Government fully share the agreed United States-Soviet objective of working out effectively agreements aimed at preventing an arms race in space and terminating it on earth, and limiting and reducing nuclear arms.

President Reagan's recent response to the Soviet proposals of 15th January has the full support of the NATO Alliance. The United States will try to build on the positive elements contained in the Soviet proposals during future rounds of the Geneva negotiations. The Government will continue to support the United States in the negotiations, and look forward to maintaining the closest contact.

May I briefly turn to some of the points that have been raised in the debate this afternoon. The noble Lord, Lord Jenkins, suggested in his opening speech—a matter to which the noble Lord, Lord Graham, also referred—that the statement which the United Kingdom made in connection with the 1977 protocol is somehow invalid. That is not so. Indeed, the International Committee of the Red Cross in presenting the draft proposals made clear that it was not then the intention to broach problems relating to nuclear weapons. The negotiating history of the protocols shows clearly that they are not in any way intended to regulate the use of such weapons. The United States and the United Kingdom made this explicit when, on signing the protocols, they both stated that their signature was subject to the understanding that the new rules were not intended to have any effect on, and do not regulate or prohibit, the use of nuclear weapons.

The noble Lord, Lord Hatch of Lusby, said that the possession of nuclear weapons by the super-powers had not prevented war taking place outside Europe. As I mentioned earlier, that is regrettably true. We have had many reminders since the end of World War II of the horrors of conventional war. We have also seen many important disputes between the super-powers: the crisis over Cuba more than 20 years ago being an obvious example. But we have not seen a major conflict between the super-powers or in Europe since the end of the Second World War. That is a very real achievement and I have no doubt that the possession of nuclear weapons by the West has played a major role in achieving it.

Lord Hatch of Lusby

My Lords, can the noble Lord elucidate one part of his argument? About 5 minutes ago—I did not want to interrupt him then—he was recalling the declarations of each of the nuclear powers that they would not use nuclear weapons against a non-nuclear power, if I have the Minister right. In that case, would not the people of this country be more secure if we were a non-nuclear power?

Lord Trefgarne

My Lords, I read out the assurance that we gave at the time which, of course, referred to not using nuclear weapons against a non-nuclear power except in certain denned circumstances. I think that our possession of nuclear weapons, which serves as a deterrent not only against those who do not have them but, more importantly, against those who do, has served us well over the years.

I turn now to the second point of the noble Lord, Lord Hatch, that the concept of nuclear deterrence depended on the assumption that nuclear war is in fact going to be fought. But the reality is quite the reverse. The whole purpose of the concept of deterrence is to prevent nuclear war, or any war, being fought.

Finally, I pick up one of the remarks made by the noble Lord, Lord Graham—I referred to another earlier—regarding the position in the United Nations General Assembly. The noble Lord referred to a number of declarations from that body. These resolutions are not legally binding. The United Nations Charter does not confer a legislative power on the General Assembly. Indeed, the wording of the resolutions is, I suggest, more appropriate to a moral condemnation or a policy programme than to a considered legal statement.

I have listened to the noble Lords opposite with a steadily growing suspicion that some of their arguments are based on a desire to attach to our successful and defensive deterrent policies some measure of moral stigma. Indeed, at least one noble Lord has sought to brand them as illegal. Morality may be left as a matter of personal judgment, but accusations of illegality need objective substantiation. None has emerged this afternoon.

As I have explained, the Government do not accept that it is either immoral or illegal to retain nuclear weapons to prevent others using force, or the threat of force, against us. We believe that while these weapons exist stable nuclear deterrence remains the policy most likely to prevent the outbreak of war of any kind between East and West, including nuclear war. There is, therefore, in our view, a moral duty on the part of the Government not to abandon that policy, except for one which makes the risk of war even less. Short of that goal, the Western Alliance, with its policy of nuclear deterrence, remains the best guarantee of the values we seek to defend.

Lord Jenkins of Putney

My Lords, I should like to thank all those who have taken part in this debate. The noble Lord the Minister will understand that my congratulations to him may be slightly less warm than they are to others. I do not think that he really gave us an answer to some of the points we have raised, and that of course means that we shall have to raise them again. However, I hope we shall do so in a somewhat different form, so that the noble Lord will perhaps be able to reply more fully.

Before I sit down, and since, as the noble Lord has mentioned, we are well ahead of time, I should like to make one point. The question that we have been debating is really: are nuclear weapons illegal or not? There has been a tribunal on this very question sitting at the invitation of a body called Lawyers for Nuclear Disarmament. It has issued an interim report and I should like to read one paragraph from it: The Tribunal was satisfied that current and planned weapons development, strategies, and deployments violate the basic rules and principles of international law both customary and conventional. The procurement and use of such weapons involve infringements of the Charter of the United Nations, the Hague Conventions of 1899 and 1907 on the Law of War, the Geneva Conventions of 1949 and the Geneva Protocols of 1977". That supports my argument. The attempt of the governments of the time to put a reservation upon that protocol—and the present Government realise it—was in fact ineffective, and they and all other nations who deploy nuclear weapons are in breach of the rules of war. In this I make no exclusion of any nation whatsoever. So far as I am concerned, in itself the nuclear weapon is an illegal weapon and the laws of war prohibit its use and deployment.

Lord Lloyd of Kilgerran

My Lords, I am sorry to interrupt the noble Lord in the middle of his peroration. He referred to a tribunal, but he did not say who were the members of that tribunal. I should be grateful for that information, if he could supply it either now or later.

Lord Jenkins of Putney

My Lords, I can supply it now if noble Lords will permit me to do so. It might be as well to put it on record. The chairman is Sean MacBride, who I think is the only man who holds the Nobel prize, the American Congressional Medal of Honour and the Lenin Peace prize. Then, Richard Falk; Dorothy Hodgkin, who will be known to some of your Lordships as a highly reputable and well balanced person, who is very knowledgeable on this subject; and Maurice Wilkins also is a member of the tribunal. All these people are distinguished lawyers.

I am sorry that none of the lawyers in this House took part in this debate. I hope this means that we shall be able to attract them on to the floor later and that we shall have the opportunity in future of hearing from them. If they wish to brief themselves on the subject, I would recommend that they get in touch with Lawyers for Nuclear Disarmament. I should be very glad to put any of our legal luminaries in touch with Lawyers for Nuclear Disarmament so that they may brief themselves fully on the subject; and I think they could do this at least.

Whether or not they decide that they feel an immediate conviction about this issue, I believe that if they were to read some of the literature which is available to them on this subject they would begin to think again. That is the purpose of this debate. For the moment, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.