Iraq: Legality of Armed Force

HL Deb 17 March 2003 vol 646 cc106-24

9.15 p.m.

Debate resumed.

Lord Lloyd of Berwick

My Lords, my first point is that the noble and learned Lord the Attorney-General does not seek to justify the use of force by the United Kingdom on the ground that Iraq presents an immediate threat to the United Kingdom and that we are therefore entitled to defend ourselves under Article 51 by a pre-emptive strike. Secondly, he does not seek to justify the use of force on the ground of an impending humanitarian catastrophe of the kind which was said by some to have justified our actions over Kosovo. Nowhere does he mention the word "genocide".

So far, I find myself in complete agreement with the noble and learned Lord the Attorney-General in what he does not say. It means that much of what has been urged in previous debates on Iraq in this House and in the press is no longer in point so far as concerns lawfulness. Surely we must now concentrate on the arguments on which the Government are presumably relying.

Therefore, instead of the wider arguments, many of which, I accept, involve difficult questions of international law, the noble and learned Lord the Attorney-General has, for reasons of his own which must seem good to him, confined himself to a single, fairly narrow point—that the use of force has been authorised by the United Nations. I say at once that I find that argument unconvincing and I hope to say why in a very few sentences.

When we went to war in 1990, we were authorised to use force in the clearest possible terms. Resolution 678 refers to "all necessary means", and we all know what that means. By contrast, nothing could be less clear than Resolution 1441. That must surely have been one of the reasons, if not the main reason—I accept that it may not have been the only one—that we have tried so hard to obtain a second resolution.

If Resolution 1441 was intended to provide the authority contained in Resolution 678, which now appears to be the main argument, why, I ask, does it not say so in express terms? Why does it refer instead to "serious consequences"? Any lawyer will tell you that if you use two different expressions in a single document or in a series of connected documents, they will be taken to mean two different things.

Therefore, why does Resolution 1441 refer only to "serious consequences"? I suggest that the answer is obvious. Resolution 1441 was a compromise. When I suggested that in the course of the debate last week, the noble Baroness, Lady Symons, was good enough—or, at any rate, was inclined—to agree that Resolution 1441 was a compromise. I refer noble Lords to col. 1144 of the Official Report of 10th March 2003. She went on to say that she believed that the countries which signed up to Resolution 1441 did not have much doubt as to what "serious consequences" meant. On that, with great respect, I beg to differ. If Resolution 1441 had authorised the use of force in the event of any further material breach, it is clear to me that it would never have been agreed; and the proof of that pudding is in the eating. The countries which would have opposed Resolution 1441 if it had contained any teeth are the very countries which have made it impossible now to secure the second resolution.

It is difficult for me to imagine that any of the countries which signed up to "serious consequences" thought that those words authorised use of force or in some way revived the previous authority to use force which had been contained back in 1990. There is a reason for saying that. The construction of Resolution 1441 is itself inconsistent with any such argument. One has only to look at paragraph 12 which states that if there should be any further material breach the Security Council will meet again "to consider the situation". That hardly sounds like a call to arms. Yet the noble and learned Lord the Attorney-General says that in some way paragraph 12 supports his argument. I cannot see how. He says that it shows that the Security Council had already decided back in 1990 what to do in the event of a further breach. I regard that argument as quite unreal and it appears contrary to the understanding at the time of our own ambassador, Sir Jeremy Greenstock.

Resolution 678 authorised the use of force in the immediate aftermath of the invasion of Kuwait and its clear purpose was to compel Iraqi forces to withdraw. It is the only resolution which has ever referred to the use of force. It succeeded in its objective. I simply cannot read it, even by implication, as authorising the use of force 13 years later in the event of a failure by Iraq to disarm, especially when that earlier resolution is read in the light of Resolution 1441 which seems to negative any such implication.

The debate no longer involves any difficult questions of international law. It is simply a question of the meaning of ordinary English words contained in the two resolutions. With the great respect for the Attorney-General which one must have, I find it impossible as at present advised to accept his argument—although, like others, I hope very much that he will come to support his arguments in this House. I greatly regret reaching such an unpalatable view especially in the light of the powerful arguments advanced by my noble friend Lord Owen and repeated to some extent by the noble Lord, Lord Howell. The strict question before us at the moment is limited to the lawfulness in international law of what we propose to do and I have to express the position as I see it.

9.24 p.m.

Lord Desai

My Lords, the lawyers have spoken. We have heard eight lawyers during 13 speeches. My noble friend Lord Rea and I are not lawyers. When I read the Motion, I thought that we were going to discuss not Iraq but the general proposition about the obligations of the UK under international law. I went home with several books and worked hard over the weekend. I could have saved myself the bother. Everything I wanted to say has already been said much better than I could have said it.

From the debate tonight and having read the judgment of the Attorney-General—with which I concur—all I can say, in the words of a Foreign Office document from 1984, is that the subject under discussion, cannot be said to be unambiguously illegal". That is about the most sound judgment I can come to and all I can say on the legal situation.

I make one point in connection with what was said by the right reverend Prelate the Bishop of Salisbury. He asked what kind of world we want to live in. He said we live in a global village. Do we not want the rule of law? Do we not want peace and security? But when people say that they live in a village, they must have in mind a very different village from that which I am used to. Their village must be modern; British suburbia with everyone driving into town in a Mercedes-Benz on roughly equal incomes, whereas I think of villages as theatres of conflict and division.

If I was living in a village and knew that domestic violence was taking place in a nearby household, would I say, "That is nothing to do with me. Existing law says we shall not interfere with family life"? Or would I say that all decent people ought to intervene in such a situation if we want a decent world? As I have said before, I am not worried whether or not Saddam has weapons of mass destruction and threatens us. I have always been more worried that he threatens his own people.

In international law aggression can only be committed by one country against another. In international law a country cannot commit aggression against its own people. The whole international law is based on a notion of sovereignty of the state, which I find offensive if not immoral. Many crimes are being committed every day, not just in Iraq, Iran or China, but by governments of countries which are supposed to be legally sovereign. They can do whatever they like to their own people and all we are supposed to say is, "But the law says you cannot do that".

United Nations Article 2(4) does not allow the use of force unless it is self-defence or collective defence. Thankfully the world has ignored that kind of injunction and gone on happily—or unhappily as the case may be—to make a number of interventions whether or not the United Nations allows it. When India intervened in East Pakistan in 1971 to prevent what West Pakistan was doing to the people of Bangladesh, its actions were illegal. The General Assembly condemned India for that. I say, "Tough". It was the right thing to do. We have seen a number of other acts like that, Kosovo being the most recent one. We also went into Sierra Leone.

I ask myself whether I want the ideal law as it is enshrined in a hook, or can I reduce human misery by an act of aggression, which may be illegal but may be just? There is law and there is justice, and I am not sure that they always agree with each other—of course, I speak as a non-lawyer.

We place the United Nations on a big pedestal as if this was an ideal world. It is the only thing we have, but we had better cast a cold, critical look at what the United Nations has done. Way back in 1970—I have to show off all the hard work I have done—in the American Journal of International Law, an article entitled, "Who killed Article 2(4)?" stated: The practice of these states has so severely shattered [mutual confidence in] … the precepts of Article 2(4), which prohibits the use of force, that … only the words remain. In the twenty-five years since the San Francisco Conference, there have been some one hundred separate outbreaks of hostilities between the states". That was in 1970.

In a sense, if anything Kosovo more or less put an end to any pretence. It is rather like prohibition in Pakistan. You cannot drink if you are an ordinary citizen, but if you go to the house of a Minister you can always get a good drink. There is the law, and I here is compliance with the law, and those who can get away with it do not comply with it.

We must stop pretending that the United Nations works as we think it should. We must replace what we would like the world to be with how the world is. A charter which forbids something and which has been seriously violated over the past 58 years must have something wrong with it. A number of times when it has been violated the results have been good. I ask why that is the case.

When we went into Kosovo, in the words of Javier Solana in the European Council statement of 25th March 1999, the justification was: It cannot be permitted that in the middle of Europe the predominant population of Kosovo is collectively deprived of its rights and subjected to grave human rights abuses". If it cannot be permitted in the middle of Europe, why can it be permitted in the Middle East? Are they not the same as us? In the words of the right reverend Prelate the Bishop of Salisbury, are 'we not in the same village? If we are, it is our duty to act.

9.32 p.m.

Lord Rea

My Lords, in the run up to this debate I had done a considerable amount of homework on the legal issues surrounding SCR 1441 and whether it alone or together with previous resolutions constituted a legal case to launch military action. But, coming last, all my points have been made very well by a galaxy of legal talent. Suffice it to say that by my count the balance of legal opinion expressed tonight in your Lordships' House believes by a score of six to two that there is not an adequate legal basis for the military action that now seems inevitable. Therefore, they do not agree with the opinion of the Attorney-Generah who has found himself with a rather difficult brief.

Several noble Lords have pointed out that Kofi Annan, the Secretary-General of the UN, has made it clear that to launch military action without a further resolution would be outside the terms of the UN charter. We should remember that the USA and the UK were both instrumental in drawing up that charter in 1945. Unfortunately, the decision taken in the Azores yesterday means that we are almost certainly going to war without a further resolution. That will be because of the unilateral decision of the present US administration to attack now rather than wait for the few further months that Hans Blix says he needs to complete his work. The military build up of the past few months has gathered its own momentum, seemingly as if discussions at the Security Council were not taking place at the same time. In the Security Council the USA has used every critical word from Hans Blix about any Iraqi reluctance to co-operate as a justification to use force urgently to disarm Iraq and has not seemed to hear his words reporting considerable progress and increasing co-operation.

Prodigious efforts by Sir Jeremy Greenstock, by the Prime Minister, by the Foreign Secretary and by my noble friend Lady Amos to persuade or to entice other members of the Security Council to support the second resolution giving the go ahead for early military action have failed. Those nations do not perceive any Iraqi threat as imminent or dangerous—if they see a threat at all—and wish to allow more time for the inspectors. The arrogance of the current US administration in pushing ahead regardless is breathtaking.

It has been a tragic mistake to nail our colours so firmly to the US mast, as quite apart from failing to avert what will be a very destructive war, our reputation as an upholder of international law is likely from now on to be tarnished. It is just possible that if at an early stage we had withheld our military support from the Americans, as we did in the Vietnam War, they might have thought twice about going alone. But even if war had still occurred we would have earned an enhanced international reputation for dissociating ourselves from what many feel is an illegal act. Whether the UN can rescue any continuing credibility after this fiasco is doubtful. But that may not matter to the Americans who in any case treat the UN with disdain, despite its building forming a prominent part of the New York skyline.

I think it is very sad that the Prime Minister did not listen to some older and wiser advisers, let alone the opinion of his own people, before committing the UK to following the current American agenda so closely. I am thinking here of some very distinguished and senior people indeed, who sit in your Lordships' House such as the noble and gallant Lord. Lord Bramall, former chief of the defence staff, the noble Lord, Lord Hurd of Westwell, distinguished former Foreign Secretary or the noble Lord, Lord Wright of Richmond, former head of the Foreign Office. All of them and many others of great eminence have spoken or written warning of the dangers ahead. The noble Lord, Lord Hurd, wrote in Friday's Evening Standard, suitably diplomatically of course: On balance I believe that a pre-emptive war against Iraq would be wrong and in the long term unwise". I repeat that he said it would be wrong and in the long term unwise. He added: But once British forces are in action the position changes for me … At that point people like me shut up and hope that our fears were misguided. Two days ago I lit a candle for peace in Durham Cathedral. It seemed that afternoon the most sensible thing to do". I am afraid that I cannot follow the noble Lord and shut up, although I shall not criticise the Armed Forces. They have been given a dangerous job to do and I am sure that as always they will do it efficiently and as humanely as any military operation can be done. My main concern has been and will continue to be that the humanitarian operation that follows the fighting will be carried out equally efficiently; the Iraqi people have already suffered enough, from past wars, from sanctions and from Saddam Hussein's regime. But that is for another debate on another day.

9.38 p.m.

Lord Wallace of Saltaire

My Lords, we shall return to this subject tomorrow so noble Lords will view this debate as part of moving from a discussion of what needs to be done to a discussion of the context in which action is now to be taken. The noble Lord, Lord Owen, who I am sorry to see is not in his place, said powerfully at the beginning of his speech that ideally there should be no doubt as to the legality and the legitimacy of the action that British troops are called upon to take. He made the powerful comparison with Suez, which for many noble Lords was the beginning of their political engagement. We are now going to war. Sadly, doubt remains about the legality and the legitimacy of the action.

A great many respectable, honest lawyers, politicians and informed members of the public remain unconvinced. Our Prime Minister has spoken of the importance "of a firm legal basis" for action. President Bush has spoken of the importance of carrying the international community with us. Neither of those have been carried. Their support has not been won. At the brink of war our arguments have to stop. We have to hope for the most rapid and happy conclusion of the conflict. We recognise the viciousness of the Iraqi regime, and the desirability not only of its disarmament, but of a change of regime for the benefit of its people.

We recognise that the United Nations Security Council has been seized of this issue for nearly 13 years. However, we also recognise that a doctrine of permissible regime change is a radical departure from international law, on which the international community is not yet agreed. A campaign to democratise the entire Middle East, which is part of the underlying rationale for American action, is not one which even the democratic world as a whole, let alone non-democratic states, are yet persuaded to support. Why then have the majority of the UN Security Council, and the majority of international lawyers, remained unpersuaded?

As several participants in this debate have said, Resolution 1441 was unanimous. However, as the noble and learned Lord, Lord Lloyd of Berwick, remarked, it was achieved by compromise and by requiring a report back to the Security Council. There was very careful drafting. The commitment was to inspections. The resolution established an inspection regime with the threat of force behind it, which is now under way. Those inspections have not yet been completed, and nor have they failed. The inspectors have not reported back to the Security Council that they have definitively failed. They have been proceeding with relative, though not yet complete, success.

The attempts to resurrect Resolution 678 from before the last Gulf War, cannot obscure that. Resolution 1441 superseded 678, 687 and the many others. We all share a common commitment to the importance of the structure of international law and its institutions, which has managed to civilise the international society of states. It is the legacy of efforts by Dutch, Swiss, British, French and American lawyers, politicians and diplomats over the past 150 years. As I teach international institutions, I recognise the particular importance of the American contribution to this construction. That included, above all, President Franklin D. Roosevelt's immense contribution in the last years of the last war and, in the end, America's sponsorship and design of the United Nations and the other agencies of the UN family.

The UN remains an imperfect body. It is still a very fragile body. Nevertheless, around that has been built a complex fabric of international law and international conventions. Our shared aim must be to strengthen this fragile construction, and to weave more threads into the fabric, not to weaken or to tear it. We must not damage what has been woven together so far. I am persuaded that the Government intend to strengthen it. Sadly, I am not persuaded that the current US Administration shares that objective.

That is partly why we have ended up in the situation that we are now in. We have an Administration which, before they had won the election, were talking about reducing American observance of the structure of international law and conventions; an Administration which, when they came into power, withdrew from several international conventions—including agreements on arms control—and refused to accept several more; we have an Administration which, since September 11th, have breached the Geneva convention on the treatment of prisoners in a number of ways. There is the extraordinary legal limbo of Guantanamo Bay; we heard yet again last week a series of well-sourced allegations in the American press of the mistreatment and torture of prisoners at Bagram; and I remind the Minister of the repetition in the reports in the American press last week that that is also taking place on British territory in Diego Garcia.

There are deeply divided counsels within the US Administration. Again this is a part of the problem as we face the situation we are now in. We have the most bitterly divided US Administration as our partner, with some senior officials dismissing the UN, NATO and international law as such. Calls on the United Nations to "face up to its responsibilities" as the US alone defines those responsibilities are not helpful. I regret that our Foreign Secretary, Jack Straw, has repeated that statement, that demand, in those exact terms.

The US Administration have slipped in terms of their rationale from disarmament to regime change, sliding from a war on terrorism to a very different war on Iraq; sliding from a war on Iraq itself to the objective of remaking the entire Middle East within an American-led framework; and responding very differently to the far more imminent threat from North Korea.

The legality of the conflict must come under Article 42 of the UN Charter and not under Article 51. There is no imminent threat from Iraq to either the United States or Britain which justifies our action. There is a potential threat to Iraq's neighbours, even to Israel, but not to us— unless one accepts the accusation of Paul Wolfowitz and others that the war on Iraq is exactly the same as the war on terrorism, and we have no evidence that that is so.

Article 42 seeks, to maintain and restore international peace and securaty". So, for that, we need a regional approach clearly under multilateral auspices with the support of other states within the region—unless Her Majesty's Government were to accept the view of the neo-conservative right in the United States that the whole of the Middle East, except Israel, is corrupt and needs to be reshaped, with most of its regimes overthrown. That suggests that we are going to change the regimes of some 10 to 20 member states of the United Nations.

Kofi Annan said very clearly that, If the United States and others were to go outside the Security Council and take unilateral action they would not be in conformity with the charter". I agree with the noble Lord, Lord Desai, that sometimes it may be necessary for states to act outside the charter when they are persuaded, as the Indians were in what is now Bangladesh, that their actions are justified even though the rest of the world does not wish to pay attention to what is happening locally. The question for us is whether this action is justified and whether or not the rest of the world is prepared to take its responsibilities seriously.

As we have heard, international law is an imperfect instrument and the UN has many flaws, but legality and legitimacy matter. We are now committed to the conflict, unfortunately without a consensus and without persuading the international community. So we have to underline, first, the importance of international law in the conflict, as my noble friend Lord Lester said, proportionate force, care of civilians and proper treatment of prisoners. Secondly, we have to underline the UN framework for post-war reconstruction and for regional settlement, and, lastly. an emphasis on strengthening international law and institutions—regionally the EU, and globally the UN.

9.50 p.m.

Lord Howell of Guildford

My Lords, I agree with the noble Lord, Lord Goodhart, who proposed this Motion, on one thing at least. It is embodied in the question: where is the Attorney-General? We admire him and are rather proud that he is a Member of your Lordships' House. On such an occasion as this, I would have hoped that he would be able to join us. We know that he is a vastly able person, and fully able—I am sure—to prevent having wormed out of him any properly confidential advice that he has given to the Government. But it is a disappointment. I said that earlier and I say it again.

As to the debate itself, it is customary in all debates to say how timely they are. But, as I hinted in an earlier response to the Statement, the timeliness of this debate does not overwhelm me at all. It seems rather pointless at this late stage to go on questioning legality. It just prolongs arguments which ought to have been closed, at the very moment when our troops are standing by for action in difficult circumstances in the desert. Anyway we know—and all the distinguished lawyers who have spoken know—that all these arguments will always be challengeable and open to question. There will always be legal experts ready to question whatever conclusion is reached.

So, despite what the noble Lord, Lord Owen, was saying about how he hoped the message would go out from this debate, my fear is that the message—if anything at all leaks out of this debate from your Lordships' House, which is not usual—will be thoroughly confusing and not particularly helpful to the position that we have reached and which we have to resolve with determination and, one hopes, with some national unity.

I am very much at one with the noble Baroness, Lady Ramsay of Cartvale, that if there is one clear rule of international law, it is that international lawyers always disagree. Even this evening, the party of the noble Lord, Lord Goodhart, the Liberal Democrats, seemed to disagree with each other. We have heard one comment of dissent. The noble Baroness rightly said that all our parties have dissenters in them on this very complex issue. But here was the eminently sensible Menzies Campbell MP—an old acquaintance whom I much admire—clearly stating back in September, that, legally, no resolution is required for the use of force to implement resolution 687". Yet, the noble Lord, Lord Goodhart, this evening said the exact opposite. I must confess that the whole position of the Liberal Democrats on this issue is bewildering. They say that action will be illegal but they say they will support the troops who presumably they regard as fighting illegally. I do not understand how those two positions can be held at once. Perhaps on second thoughts I do because the confusion is forgivable. Why? It is forgivable because we are operating in wholly new and unfamiliar circumstances, as the noble Lord, Lord Hannay, argued with great authority, which he certainly possesses.

As the US national security strategy pointed out last November, while there is nothing new about the legitimacy of pre-emptive strikes—those have been argued for by scholars, theologians and others down the ages—the concept has always been associated in the past with the other concept of "imminent threat". What now has to be adapted is that latter concept in the age of global terrorism, where the whole idea of imminent threat being armies massed to attack is displaced by far more amorphous, diaphanous and difficult threats which have to be analysed and foreseen rather than patiently waited for until they inflict murder and mayhem, as happened in September a year ago in New York. I can understand why some lawyers are confused because they have not yet perceived that the world is an entirely changed place and that the nature of "imminent threats" has changed as well.

On the narrower issue of the legality of intervention in Iraq, the basic contention that disarmament by force is legal seems irrefutable. We have heard from the Attorney-General and from US legal authorities. I took the trouble to consult over the weekend and my suspicions were fully confirmed. They were extremely strong in their argument. We have heard from numerous legal experts on both sides of the Atlantic.

All agree that Articles 51 and 42—which say that the UN may take such action by air, sea and land forces as may be necessary to restore international peace and security—the reinforcement given by the phrase "all necessary means" in Resolution 678 that we have all quoted at each other this evening; and the combination of Resolutions 678 and 687 and a string of further resolutions leading to Resolution 1441 establish beyond doubt the legal nature of any intervention.

The noble Lord, Lord Goodhart, gave his own criteria in a clear and telling speech the other night. As well as the universal acceptance of the doctrine of humanitarian war—which is new to the global scene—they seem to underpin the same view. The well-documented genocide of the Marsh Arabs is a cut-and-dried case. Genocide has been committed. Humanitarian intervention is the custom of the age. To me, that is the end of the matter.

The interventions in the 1990s, when President Clinton was in office and cruise missiles rained down on Iraq, was fully justified and supported by the resolutions that are now being called upon. The noble Lord, Lord Grabiner, is so right when he says that one must consider the full context, not just the narrow niceties—although I can see that great legal minds focus on such matters.

The real issue is no longer legality. Although that is important, that argument is either over or will never be decided and will go on for ever. The issue is the nature of the threat. Does one believe, as I certainly do, that ahead there is a crossroads, a fatal rendezvous, where fanaticism and weapons of mass destruction will meet—and where not only our interests in the Middle East region but here on UK soil could and would be directly assaulted?

The noble Lord, Lord Wallace of Saltaire, who is an enormous authority on international affairs, dismissed that point, as many of his colleagues have done again and again. But those who have to take political decisions and lead nations are not in a position to dismiss those questions. Professor Christopher Greenwood, a professor of law whose views have already been mentioned, recently told the Foreign Affairs Select Committee in another place that the gravity of a threat must be taken into account—that is, the nature of nuclear or biological attack and the methods of delivery, which these days might be completely clandestine. He wisely added that the judgment of whether such a threat exists lies with governments, not lawyers.

If war is illegal, as the noble Lord, Lord Goodhart, and his colleagues seem to imply, what is the attitude of the International Criminal Court'? The noble Lord, Lord Lester of Herne Hill, made his usual perceptive comments about the conduct of the war. If it is believed that the war will be illegal, will actions taken during that war by leaders or the rank and file become war crimes? Incidentally, I understand that ICC crimes have been adjusted. I learnt that only by chance. The crime of aggression has had its jurisdiction deferred while lawyers try to define what it means. If that is correct, we should know a little more about it; in fact we should be told about it.

There remain a long list of war crimes on the statute hook. Is it proposed that our soldiers be judged against those? Are those issues on which it would have been helpful for the Attorney-General to disentangle the complex questions involved?

Diplomacy has failed, in this instance, as has the UN process. As I said, the will to enforce the resolutions is not present. That is deeply regrettable, and the situation could have been better handled. I am tempted to agree with the observations of my noble and learned friend Lord Howe of Aberavon that there was a danger in calling the situation a war, when in fact it is a disarming and cleaning-up operation—a determination to free the world from a poisonous virus that has been polluting the whole Middle East—and that that would have been a better description and might have led to lower and more realistic expectations.

Tomorrow we will debate the whole issue and will also debate how, despite the errors and blunders, a new and better foundation for European advance and transatlantic relations can be built on all the divisions and tensions.

Meanwhile, as I said, France has pulled the plug on the United Nations. A second resolution is impossible, so there is plainly a right to go ahead without what is unattainable. The right to go ahead remains, and the exercise of that right is a matter for political decision, not for lawyers. I agree with Professor Greenwood about that. The decision that has now been made is wise, lawful and opens a better chance of peace in a hideously dangerous world.

10.1 p.m.

Baroness Symons of Vernham Dean

My Lords, I, too, thank the noble Lord, Lord Goodhart, for initiating this debate and thank all your Lordships for your manner of participation in our debate.

Last Thursday, in answering a Question posed by the noble Lord, Lord Roberts of Conwy, I reminded your Lordships that, by long-standing convention, followed by successive governments and reflected in the ministerial code, legal advice to the Government remains confidential. That convention is confirmed in page 389 of Erskine May.

I am sorry that the noble Lords, Lord Goodhart and Lord Howell, were somewhat niggardly in their approbation of my noble and learned friend's statement. The Attorney-General has been more open-handed than any of his predecessors in publishing his advice in the way that he has. Furthermore, my right honourable friend the Foreign Secretary has also tried to help your Lordships by circulating a further paper.

In recognition of the enormous importance of this issue, my noble and learned friend has decided to disclose his view of the legal basis for the use of military force. As I said, that is almost unprecedented. The last time that a Law Officer's views were disclosed concerned the Maastricht Treaty in 1992. It is right that what has happened today remains the exception rather than the rule.

Many shades of opinion have been expressed this evening both among noble Lords who are lawyers and those of us who are not. I remind my noble friend Lord Rea that although my noble and learned friend may take a different view from several of your Lordships, he has had access to all the relevant documents. That fact must be borne in mind.

My noble friend Lady Ramsay of Cartvale explained that she is not a lawyer. Nor am I, but the position before us is relatively clear and the basis of our legal view is fairly plain and straightforward.

The legal basis for any military action that might be taken against Iraq would be the authorisation which the Security Council, by its Resolution 678, in 1990, gave to member states to use all necessary means restore international peace and security in the area. That authorisation was suspended, but it was not terminated by Security Council Resolution 687 in 1991. It has been revived on previous occasions and UNSCR 1441 revived it again.

In UNSCR 1441 the Security Council determined, first, that Iraq's possession of weapons of mass destruction constitutes a threat to international peace and security; secondly, that Iraq has failed in clear violation of its legal obligation to disarm; and, thirdly, that in consequence, Iraq is in material breach of the conditions for the ceasefire laid down by the Council in UNSCR 687 at the end of the hostilities in 1991.

I shall reiterate some of the detail of the argument. As my noble friend Lord Grabiner said, it is a question of the full context of what has happened since Resolution 660 which we should take into account. As the noble Lord, Lord Goodhart, pointed out, chapter 7 of the United Nations Charter gives the Security Council the power to authorise states to take such military action as may be necessary to maintain or restore international peace and security. In the case of Iraq, the Security Council took such a step following the Iraqi invasion of Kuwait. Paragraph 2 of SCR 678 authorised, Member states co-operating with the Government of Kuwait … to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area". The phrase "all necessary means" was understood then, as it is now, to include the use of force. Following the liberation of Kuwait, the Security Council adopted UNSCR 687. That resolution set out the steps that the council required Iraq to take in order to restore international peace and security in the area. Iraq's acceptance of those requirements was the condition for the declaration of a formal ceasefire. Those steps included the destruction of all WMD under international supervision and the requirement that Iraq should not attempt to acquire such weapons or the means of their manufacture. As a means to achieving the disarmament required by the Security Council, UNSCR 687 also required Iraq to submit to extensive weapons inspection by UNSCOM, now UNMOVIC, and the IAEA. The Security Council was quite clear that those steps were essential for the restoration of international peace and security in the area.

I agree with the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Owen, that UNSCR 687 did not repeal the authorisation to use force in paragraph 2 of SCR 678. On the contrary, it confirmed that SCR 678 remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire, but the authorisation could be revived if the council determined that Iraq was acting in material breach of the requirements of SCR 687.

This is an important point. SCR 687 suspended but did not terminate the authorisation. The formality of acceptance of the terms was not sufficient. Iraq was and is required to comply with those terms. I make that point strongly for the noble Lord, Lord Thomas of Gresford, as well as for the noble and learned Lord, Lord Lloyd of Berwick.

Although almost 12 years have elapsed since SCR 687 was adopted, Iraq has never taken the steps required of it by the council. Throughout that period the council has repeatedly condemned Iraq for violations of SCR 687 and has adopted numerous resolutions on the subject. In 1993 and again in 1998 the coalition took military action under the revived authority of SCR 678 to deal with the threat to international peace and security posed by those violations.

The right reverend Prelate the Bishop of Salisbury was right to say that I would say something about 12 years being a long time. Indeed, 12 years is a long time for Iraq to comply. More particularly, I say to the right reverend Prelate that 17 resolutions is a great number for Iraq to have failed to comply with.

In relation to the action in 1993 the Minister of State at the Foreign and Commonwealth Office, Douglas Hogg, wrote: The Security Council determined in its statements of 8 and 11 January that Iraq was in material breach of resolution 687 and its related resolutions, and warned Iraq that serious consequences would ensue from continued failure to comply with its obligations. Resolution 687 lays down the terms for the formal ceasefire between the coalition states and Iraq at the end of hostilities mandated by the Security Council in resolution 678. These terms are binding in themselves but also have been specifically accepted by Iraq as a condition— the point made by the noble and learned Lord, Lord Mayhew— for the formal ceasefire to come into effect. In the light of Iraq's continued breaches of Security Council resolution 687 and thus of the ceasefire terms, and the repeated warnings given by the Security Council and members of the coalition, their forces were entitled to take necessary and proportionate action in order to ensure that Iraq complies with those terms". Again, on 14th January 1993 in relation to UK and US military action of the previous day, the then UN Secretary-General, Dr Boutros Ghali, said: The raid yesterday, and the forces which carried out the raid, have received a mandate from the Security Council, according to resolution 678, and the cause of the raid was the violation by Iraq of resolution 687 concerning the ceasefire. So, as the Secretary-General of the United Nations, I can say that this action was taken and conforms to the resolution of the Security Council and conforms to the Charter of the United Nations". This is not a new point. Indeed, we reiterated it fairly recently. I remind my noble and learned friend Lord Archer that in relation to the military action taken in 1998 I said, I believe from this same Dispatch Box, that any action involving UK forces would be based on international law. That is our position today.

The charter of the United Nations allows for the use of force under the authority of the Security Council. The Security Council resolution adopted before the Gulf conflict authorised the use of force in order to restore international peace and security in the region. Iraq is in clear breach of Security Council Resolution 687, which laid down the conditions for the ceasefire at the end of the conflict. Those conditions included a requirement on Iraq to eliminate its weapons of mass destruction under international supervision. These conditions have been broken. It is the same argument—it goes back to Resolutions 678 and 687, but now it is reinforced by Security Council Resolution 1441.

It is against that legal background that the United Kingdom and the United States brought to the council the draft resolution which was eventually adopted unanimously as SCR 1441 on 8th November. I remind the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Wallace of Saltaire, that the preamble to that resolution again expressly referred to SCR 678, confirming once more that that resolution was still in force. It also recognised the threat that Iraq's non-compliance with the council resolutions posed to international peace and security; and it recalled that SCR 687 imposed obligations on Iraq as a necessary step for the achievement of its objective of restoring international peace and security. I say to the noble and learned Lord, Lord Lloyd of Berwick, that in paragraph 1 the council went on to decide that Iraq, has been and remains in material breach of its obligations under SCR 687 and other relevant resolutions.

On this occasion, the council decided, in paragraph 2, to offer Iraq, a final opportunity to comply with its disarmament obligations". Iraq was required to produce an accurate, full and complete declaration—all those words are important; "accurate, full and complete"—of all aspects of its prohibited programmes, and to provide immediate and unrestricted access to UNMOVIC and the IAEA. Failure by Iraq to comply with the requirements of SCR 1441 was declared to be a further material breach of Iraq's obligations, in addition to the continuing breach already identified in paragraph 1.

In the event of a further breach, or interference by Iraq with the inspectors, or failure to comply with any of the disarmament obligations under any of the relevant resolutions, the matter was to be reported to the Security Council. The Security Council was then to convene, to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security". That appears in paragraph 12. In paragraph 13, the council warned Iraq that, it will face serious consequences as a result of its continued violations of its obligations". UNSCR 1441 did not require a further decision by the Security Council to be taken. SCR 1441 afforded Iraq a final opportunity to comply and provided for any failure by Iraq to be "considered" by the Security Council under paragraph 12. That consideration has taken place regularly since the adoption of 1441. It is plain from UNMOVIC statements to the Security Council, its 12th quarterly report and the so-called "clusters document". that Iraq has not complied, as required, with its disarmament obligations. Whatever other differences there may be on the Security Council, no member of the council has questioned that conclusion. It follows that Iraq has not taken the final opportunity offered, and remains in material breach of the disarmament obligations which, for 12 weary years, the council has insisted are essential for the restoration of peace and security. In these circumstances, the authorisation to use force contained in SCR 678 revives.

The noble Lords, Lord Goodhart and Lord Thomas of Gresford, spoke about automaticity and hidden triggers. The US and the UK made it clear that there were no hidden triggers or automaticity because everyone in the council understood the consequences of a finding of material breach and everyone agreed that there would be a further council discussion before force was used. The statements by the UK and the USA at the time made that clear.

Mr Negroponte, the American Ambassador to the UN, said on 8th November that if the Security Council failed to act decisively in the event of further Iraqi violation, the resolution did not constrain any member state from acting to defend itself against the threat posed by Iraq or to enforce the relevant UN resolutions and protect world peace and security. Our own ambassador, Sir Jeremy Greenstock, said at the same meeting that there was no automaticity in the resolution. He said that if there was a further Iraqi breach of its disarmament obligations, the matter would return to the council for discussion as required by OP 12. That is the point—that is what has been happening, and it has been happening for four months.

The noble Lords, Lord Brennan and Lord Wallace of Saltaire, spoke about the Secretary-General. The UN Secretary-General stated that if action were to be taken without the authority of the council, it would not be in conformity with the charter. Our position is that as the council has authorised military action through UNSCR 678 and subsequent resolutions, such action is in accordance with the authority and would therefore be in conformity with the charter.

The noble Earl, Lord Sandwich. talked about the strong concerns of the NGOs. I agree that there are real concerns about the humanitarian issues. Her Majesty's Government's policy is clear that an immediate priority is to continue to support humanitarian efforts to relieve the suffering of the Iraqi people. We in the United Nations system are planning for a range of humanitarian contingency matters. Our planning includes the MoD and DfID We are in contact with the United States and with a range of United Nations humanitarian agencies. We are all making detailed contingency plans.

The noble and learned Lord, Lord Lloyd of Berwick, made much of UNSCR 1441 being a compromise. So are most treaties and most legislation, but words still mean what they say, even in a compromise. There is nothing wrong with a good compromise, provided that it does the job it needs to do, and UNSCR 1441 certainly did.

The noble Lord, Lord Lester of Herne Hill, raised a number of points about international humanitarian law. I am still being advised by the FCO on these matters. As an FCO Minister and, even more particularly when I was an MoD Minister, I cannot recall a time when these matters were not thoroughly, painstakingly, almost agonisingly discussed, as they should be. I assure the noble Lord that these extremely complex questions are gone into in great detail when all the stages of any military action are engaged upon. I shall write to the noble Lord and make sure that a copy of the letter goes into the Library of the House. I assure him that, as always, whatever we do will be in compliance with international law.

Lord Lester of Herne Hill

My Lords. I am grateful to the Minister for giving way. In the light of what the Cabinet Secretary said to a committee in another place, will the Government give the Armed Forces and civil servants very clear guidance about their obligations under humanitarian law? Will she confirm that there are effective remedies in English and American law if they breach those obligations'?

Baroness Symons of Vernham Dean

My Lords, of course; we always do when we are in these difficult situations. I have no reason to think that this particular armed conflict, if, sadly, it must come, will be any different.

The Government have said since the start of this process—as we did during similar processes leading to military action in 1998—that we shall always act in accordance with international law. I hope that I have been able to set out the basis for international law as regards the action that may follow Iraq's failure to comply. We still hope that Saddam will take a decision open to him even now to disarm voluntarily but I am bound to say that that hope is dwindling fast, as many of your Lordships indicated this evening.

As my right honourable friend's Statement made clear, tomorrow the House of Commons will be asked to endorse the UK's participation in military operations and it will be asked to do so with the objective of ensuring the disarmament of Iraq's weapons of mass destruction and thereby the maintenance of the authority of the United Nations. As part of the same village, as my noble friend Lord Desai put it, these issues are of enormous importance not just in Iraq and the region but right the way across the world. In many ways I agree with many of the sentiments expressed by the noble Lord, Lord Howell of Guildford.

I am sure that all your Lordships join me in sending the strongest possible message of support to our Armed Forces already in the Gulf and to those who will join them shortly. I am sure that, although we do not take any relish in the debate that we shall have tomorrow, we shall approach it in the same serious frame of mind as we approached the very interesting debate initiated by the noble Lord, Lord Goodhart, this evening.

10.21 p.m.

Lord Goodhart

My Lords, I thank all noble Lords who took part in this difficult and rather unhappy debate. We have seen tonight a deeply divided House. There have been powerful speeches in support of the Government by, among others, the noble and learned Lord, Lord Mayhew of Twysden, who was the Attorney-General at the time of the first Gulf War, the noble Lord, Lord Hannay of Chiswick, who was our ambassador to the United Nations at the time of the first Gulf War, and the noble Lord, Lord Owen, who is a former Foreign Secretary.

There have also been powerful speeches the other way, not only from my noble friends but also from a former Law Lord, the noble and learned Lord, Lord Lloyd of Berwick, and from two distinguished lawyers on the Labour Benches, the noble and learned Lord, Lord Archer of Sandwell, a former Law Officer, and the noble Lord, Lord Brennan, a former chairman of the Bar Council.

I should like to make a special mention of the right reverend Prelate the Bishop of Salisbury, who for a few minutes raised our thoughts away from the narrow details of the text of resolutions of the United Nations and up to a higher level.

It is not appropriate for me at this stage to make a speech in reply. However, I should like to make one comment; that is, that the arguments of the noble and learned Lord the Attorney-General and of those who supported him in this debate are that ever since Resolution 678 in 1990 there has been a right for the USA or, indeed, any other member state, to launch an attack on Iraq up to the level of full-scale war without any further approval by the Security Council at any time when Iraq has been in serious breach of Resolutions 678 or 687. That, I have to say, in my view stretches the interpretation of Resolution 678 far beyond the breaking point. It might have been wiser to be more frank and simply to adopt the view of the noble Lord, Lord Desai, that what is illegal may also be just—not an argument which I accept in this case but one which seems to me to be seriously arguable.

We now therefore move to war. I say in response to the noble Lord, Lord Howell, that I see no inconsistency between our stating our views frankly while we are still at peace and recognising that, once war begins, that debate should cease, as it will as far as we are concerned. I join entirely with the noble Baroness, Lady Symons, in sending messages of support to our troops in the Iraq theatre. On this sombre evening, we must hope that the war is quick and that casualties among military and civilians on our side and the other are as low as possible. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

Northern Ireland Assembly Elections Bill

Brought from the Commons; read a first time. and to be printed.

House adjourned at twenty-six minutes past ten o'clock.