HL Deb 21 April 2004 vol 660 cc356-76

7.19 p.m.

Lord Thomas of Gresford

rose to ask Her Majesty's Government whether they accept the legitimacy of pre-emptive armed attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter; and, if so, whether they will define the principles upon which it will be exercised.

The noble Lord said: My Lords, when I formulated the Question, I did so in response to comments made by the American President, President Bush, about the new policies that he was introducing. The Prime Minister is following in his wake, as he has on so many occasions. On 5 March, the Prime Minister addressed a meeting of businessmen in his constituency. He said: It may well be that under international law as presently constituted, a regime can systematically brutalise and oppress its people and there is nothing anyone can do, when dialogue, diplomacy and even sanctions fail, … This may be the law but should it be?". He continued: Before September 11th, I was already reaching for a different philosophy in international relations from a traditional one that has held sway since the treaty of Westphalia in 1648, namely that a country's internal affairs are for it and you don't interfere unless it threatens you, or breaches a treaty, or triggers an obligation of alliance". The Westphalian treaty put an end to the Thirty Years War, which had wasted Europe and caused millions of deaths and untold suffering on a scale that was not repeated until the great wars of the 20th century. It had high ideals, based upon Christian values, and if the promotion of peace and harmony between nations, which was contained in that treaty, did not by any means always lead to the peaceful conclusions that its signatories foresaw, nevertheless the principles of that treaty held sway until 1914 and were subsequently incorporated in and informed the Charter of the League of the Nations and the United Nations Charter in 1945.

The fundamental tenets of the United Nations are set out in Article 2: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations". These principles were derived from the Treaty of Westphalia of 1648.

War is illegal. There are only two exceptions. The first is armed intervention authorised by resolution of the Security Council. The second is the right of a member state to act in self-defence, as set out in Article 51 of the United Nations Charter, which says: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security". That gives an inherent right of individual or collective self-defence if an armed attack occurs.

Self-defence justifies the use of armed force in the violation of another state's territory—crossing a border—in three instances: where an armed attack is immediately threatened; where there is an urgent need for defence; and where there is no practicable alternative to proportionate action in self-defence. In 2003, no threats existed to the territory or to the military forces of either the United States or the United Kingdom.

In the early months of 2003, the noble and learned Lord the Attorney-General gave a legal opinion, which in effect launched the attack upon Iraq since we now know that the generals refused to move without it. He did not seek to suggest in the summary of his opinion that we have been allowed to see that the attack was justified by reasons of self-defence under Article 51. I agree with him.

He justified the invasion on the basis that the 1990 authorisation of force by the United Nations, which launched the first Gulf War, was revived by the failure of Saddam Hussein to comply with the terms of the 1991 ceasefire; in effect, that he had blocked the investigations that were being carried out by United Nations inspectors. I totally disagree with him. The Iraq war was illegal. I do not propose to spend much time on this topic because it is not the main thrust of my argument, but Resolution 1441, when finally agreed in November 2002, did not contain the familiar trigger words that would have authorised the United States, the United Kingdom, or any member state, to take military action against Iraq.

The original draft of the resolution, as disclosed on 2 October 2002, sought to lay down that failure to comply with the inspection provisions of the resolution would constitute a further material breach of Iraq's obligations. It went on: such breach authorizes member states to use all necessary means to restore international peace and security in the area". That was the wording that the United States and the United Kingdom were contending for. That is what they wanted: specific authorisation. Those were the words that triggered the Korean War, the first Gulf War and United Nations-backed armed interventions in Somalia, Haiti, Rwanda and Bosnia throughout the 1990s. They authorised member states to use, all necessary means to restore international peace and security". In all the instances that I have quoted, the Security Council responded not to threats of aggression, but to actual invasion, large-scale violence or humanitarian emergency. Seven weeks of negotiation and exhortation by United States and United Kingdom representatives at the United Nations in October and November 2002 failed to get the explicit authorisation of military force that the Governments of the United Kingdom and the United States were seeking. If they did not need such authorisation because it already existed under the resolutions of 12 years previously, why did they seek it?

I do not doubt for a moment the integrity and professionalism of the noble and learned Lord the Attorney-General, but the refusal of the Government to waive legal professional privilege so that we can see the whole of his opinion, together with his instructions, leads to the inevitable and reasonable inference that it contained qualifications that only historians will be able to judge. I assure your Lordships that it is rare for any lawyer to give an unqualified opinion.

But now in his latest statement the Prime Minister moves to support American efforts unilaterally to change international law. I suppose the view is that the Security Council did not countenance armed intervention into Iraq: it must therefore be circumvented in some way. It is instructive to remember that the United States led members of the United Nations Security Council in condemning the pre-emptive tripartite aggression carried out by England, France and Israel against Egypt in the 1956 Suez War. The United States was party to promoting resolutions that demanded the immediate withdrawal of British, French and Israeli forces. Later, the United States voted with the other members of the Security Council to condemn Israel for its pre-emptive attack on Iraq in 1981, during which Israeli planes destroyed an Iraqi nuclear reactor. That attack was also condemned by the British Prime Minister, the noble Baroness, Lady Thatcher.

What then is this new doctrine of pre-emption, which certainly did not exist at that time, that Mr Bush and his hard-line administration have adopted? On September 20, 2002, the administration unveiled its new national security strategy. This document addressed the proliferation of weapons of mass destruction and terrorist networks armed with the agendas of fanatics, as they put it. The strategy claimed that these new threats are so novel and so dangerous that they should: not hesitate to act alone, if necessary, to exercise our right of selfdefense by acting preemptively". Now the US claims a right of self-defence to act preemptively, on its own. To use the word "pre-emptively" in this context has been recognised as a misuse of language.

Senator Edward Kennedy, speaking in the US Senate soon after this publication, on 7 October 2002, pointed out that strikes that target a country before it has developed a capability to become threatening are not pre-emptive attacks, but preventive attacks. He said: The coldly premeditated nature of preventive attacks and preventive wars makes them anathema to well-established international principles against aggression. Pearl Harbor has been rightfully recorded in history as an act of dishonourable treachery". Japan attacked Pearl Harbor because Japan believed that America was preparing to expand its influence in the Pacific. Senator Kennedy went on: Historically, the United States has condemned the idea of preventive war, because it violates basic international rules against aggression". So when in February and March 2003 the United Kingdom, with the assistance of Spain, again sought Security Council approval for military action in an oblique fashion by their draft resolution of 7 March, the Security Council was not persuaded. The draft resolution was withdrawn presumably because this Government realised, through telephone taps of the Secretary General's conversation with its members, that the resolution had no chance of being passed.

According to Bob Woodward, extracts from whose book, "Plan of Attack", are published in the Washington Post today, the President told Mr Blair on 12 March 2003 that he had had it with the resolutions: 'If we don't have the votes', Bush said, 'pull it down. We're through'. So the United States and the United Kingdom were unable to persuade the jury of world opinion that there was sufficient evidence of a security threat to justify the invasion, the destruction of property and the loss of life which the war entailed. And world opinion was right. The need for authorisation by the Security Council is the essential safeguard against military adventure. If a country cannot persuade the members of the Security Council and avoid a veto by a permanent member, it does not have a case for a legal war.

Where do we now stand? Should we traipse into a war on the say so of the President of the United States? Do we ourselves declare war simply on the basis of our own intelligence sources which so singularly overestimated the threat posed by Iraq? If we abandon the need for authorisation by the United Nations, what other principle is to be applied?

Critics in the Prime Minister's own party have had their say. Tam Dalyell denounced Tony Blair's Sedgefield speech as "passionate, self-justifying drivel". Robin Cook, writing in the Independent on 19 March, the anniversary of the invasion, said: A fitting way to mark the anniversary would be to drive a stake through the doctrine of pre-emptive strike and bury it where it cannot be disinterred to justify another unilateral military adventure. The new Bush doctrine claimed the right to make war on any country that could be a potential threat some years down the road. Iraq has proved beyond any reasonable doubt that intelligence cannot provide evidence reliable enough to justify war on such a speculative basis". Does the growth of international terrorism change the parameters? The answer is no. The Iraq invasion itself was not a response to terrorism because no link with Al'Qaeda was ever claimed by the British Government. And as for Afghanistan, the Security Council immediately passed resolutions which recognised the right of the United States to defend itself against the attack of 9/11 and eventually authorised the invasion of Afghanistan. It had full United Nations Security Council approval. The United States did not complain then about the United Nations' response.

If one state can claim the right in international law to defend itself by pre-emptive military action, entirely on its own assessment of a potential future threat, then every state can claim it. The security of the world in every part will be destroyed.

7.35 p.m.

Lord Judd

My Lords, the noble Lord, Lord Thomas of Gresford, is to be thanked for and congratulated on having given us the opportunity to consider this issue today. I say genuinely that I have had a lot of anxiety about intervening in this debate. To intervene in such a learned debate, opened by someone with as much legal experience as the noble Lord, Lord Thomas of Gresford, to be wound up by my noble and learned friend the Attorney-General, for whom I have a great deal of respect, and to have the insight of the noble Lord, Lord Henley, with his legal experience, is quite a challenge for a layman.

I took heart by re-reading the charter and remembering that its opening words are, We the Peoples of the United Nations". It is most important that we do not allow consideration of these issues to become monopolised simply by legal analysis. There was a spirit of "we the peoples" in the aftermath of the Second World War which means a great deal.

Secondly, in a lifetime spent in international work in and out of Westminster, I have become convinced of the imperative of the rule of law internationally. In doing so, two other considerations have increasingly struck me. First, it is not just a matter of having a rule of law; it is a matter of having equal access to the rule of law and consistency in its application. Therefore, if we in the United Kingdom. together with our friends in the United States, are advocating the cause of the international rule of law, we should be at all times exemplary not only in the detailed legal requirements but in the spirit in which we observe it. After all, we in our own society have for a long time said that it is a matter not only of justice being done, but of justice being seen to be done. People must feel that what is being done is in accordance with the law.

Having said that, and again drawing on my experience of international work, it would be naive to suggest that in the highly dangerous world in which we now live there are no issues surrounding the possible need for pre-emptive, perhaps even preventive. action as distinct from waiting to react. The cost of waiting to react could be incalculably great. But I would argue that in the greater cause historically of the sustainable rule of law across the world as a whole, it is more important than ever that any changes in the rule of law are approached honestly, in a considered and balanced way, through political debate at international level so that international consensus is built behind what is being done.

But if we are also talking about preventive and preemptive action, there is another lesson to be learnt. It is a sensitive issue, but it is no good dodging it. If such action is to be contemplated, it is indispensable that that action is based upon sound, carefully evaluated intelligence and not upon what can be imagined by people, whether that is fair or not, as a political decision to take certain action for which intelligence is then collected to justify the political decision. That is an absolutely crucial consideration.

My next point is that it is rather like discussing the Bible and other documents of equal significance. There is a danger about debating specific articles of the charter. The charter is a carefully crafted document. One has to look at the charter as a whole.

The noble Lord, Lord Thomas of Gresford, quoted from Article 51 and I shall not bore the House by quoting it again. However, in this context one has to look at Article 39 to which the noble Lord referred. It states: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security". Article 51 is clearly an article that is very realistic. It says that if something happens that requires immediate action—and obviously requires immediate action—that action may be taken. However, the charter goes on to make it plain that such action has to be brought together under the auspices of the UN as soon as possible. That action may be taken, but that brings us to the kernel of the difficulty: almost everyone has put 9/11 down to Al'Qaeda. However terrible the regime was in Iraq, and as someone who has been responsible for work carried out by a humanitarian agency in Iraq in the bad years, I take second place to no one on the horrors of that regime—it was a terrible regime—it has to be acknowledged that the involvement of Iraq in 9/11 has never been established.

So what was the action in Iraq about? The only justification under Article 51 was that there was an imminent and overpowering threat. As we have seen, that has not been established. It makes it all the more questionable why the methodical work, which was being undertaken by the UN through its inspectors and so on, should have been short-circuited, rather than waiting until that work was completed and there was a chance to evaluate it. It is apparent that there was not an overriding case in terms of imminent danger and overpowering threat.

Of course, weapons of mass destruction were central to the argument. Weapons of mass destruction have not been found. I have always been a little cautious about saying that because the weapons have not been found that shows that the war was illegitimate. It is theoretically possible that the weapons may still be found. I believe that it is highly unlikely, but it is possible. My concerns are about whether they could have been deployed overpoweringly and speedily, justifying action under Article 51, and about the need for UN authority.

Another argument is that the Iraqis failed to act in accordance with previous UN resolutions, to which the noble Lord, Lord Thomas, referred. But the previous UN resolutions dealt with the material, the weapons and so on that could be a threat. The evidence is still conspicuous by its absence in terms of overweening urgency in this situation.

Reflecting on these matters, I have come to the conclusion that it would be wanton irresponsibility on the part of the Government not to take the issue of international terrorism seriously. We all have to be prepared to consider how the new challenges, which until quite recently we never envisaged, should be tackled. I have a great deal of feeling for the responsibilities that lie on the shoulders of my noble and learned friend the Attorney-General. I am glad that it is he who is shouldering those responsibilities because I have a great deal of respect for his outlook on political affairs.

If we are to tackle the issue of terrorism, it is not just an immediate terrorist threat in a specific situation that should concern us; we should be concerned that terrorists operate and succeed in a climate of significant, widely-based ambivalence. If many thousands or millions of people do not get up every morning saying, "Our first task is to eliminate, to reveal, to bring to justice terrorists", if people whose plight is so terrible in economic and social terms that sometimes they wake up in the morning saying, "They are doing terrible things, how horrible, but perhaps they are on our side, even though the action they are taking is wrong", then the terrorists have the climate that they seek which gives them maximum room for operation because there is a climate of ambivalence.

We therefore have to be resolute in tackling the issues of economic and social justice. But it is not simply a matter of economic and social justice on which we have to be resolute, but also the matter of political power. Coupled with the economically and socially disadvantaged, there are many highly intelligent, extremely well-educated people in the world who feel totally excluded from the power structures of the world. That is a diabolical mix which gives terrorists the best possible situation from their own standpoint in which to deploy their wickedness.

We have to tackle the issues of the distribution of power. We have to show that when action is taken it is not just taken by a small, well-endowed—literally— group of nations, telling the world how it should be run, but that it is undertaken with the maximum possible endorsement by the international community. That is absolutely essential to winning the battle for hearts and minds. That is why I have always felt that it is unfortunate to suggest that before such action is taken, there is a legal requirement alone to have a UN Security Council resolution. As the law stands—before we change it—that is certainly a requirement. But what really matters is that such a resolution by the Security Council should be the seal of authority on an international consensus that has been built. The task is to build international consensus and not to say that we are dispensing with collective international responsibility and taking over the running of the world ourselves. That is the issue. Language becomes very important. It is not a matter of saying, "We are going to do this", or "We are going to do that". It is a matter of saying that together with all the people in the world who care, together with those in Iraq who care, we shall do those things so that the responsibility is shared.

I know that the case was put together on the basis of previous resolutions. I have alluded to the degree to which those previous resolutions may not have been contradicted quite in the way in which sometimes it is easily assumed they were contradicted. Much more importantly, if something of the significance of Iraq was to be undertaken, it seems to me that it was crucially important that it was undertaken in the demonstrable context of the maximum possible international consensus.

I conclude by saying that we are now looking at the future. I think that the world has been extraordinarily forgiving. People across the world are now looking at the future and at what we are to do for the future of Iraq, the future of stability in the region and the future of stability throughout the wider world. I beg the Government to learn from what has happened in recent years. It really is absolutely essential that in all that is done for the future we have the explicit, specific and demonstrable authority of the international community as represented in the authority of the United Nations.

7.49 p.m.

Lord Mitchell

My Lords, I too am grateful to the noble Lord, Lord Thomas of Gresford, for introducing the debate. It is a pity that more noble Lords are not speaking on this important topic, but the hour is late. Like my noble friend Lord Judd, I rise with some hesitation; perhaps more so. This is a debate about international legalities. Many noble Lords who spoke today, as my noble friend Lord Judd said, are themselves eminent and learned members of the legal profession. I am not a lawyer and perhaps I feel a little out of my depth. But the subject is important and I have certain views that I should like to add.

I suppose it was inevitable that the discussion today would centre on Iraq, which is one of the two centres of great unrest in the Middle East. I shall not speak about Iraq but will confine my points to Israel and Palestine. Is it not odd that in a part of the world where Turkey occupies part of Cyprus, where Syria occupies and controls Lebanon and where Armenia occupies part of Azerbaijan, that only Israel seems to bear the brunt of occupation and has to answer questions about preemption? Much of what I will say this evening will be centred on the fact that other countries, including our own, take pre-emptive action, but it seems to be Israel that is singled out and treated with a harsher level of condemnation.

It would be useful to look at some of the background to the situation. Perhaps noble Lords will bear with me. I know that much of it is known, but I should like to make a few points. For three and a half years Israel has been subjected to a horrendous and continuous barrage of Palestinian-instigated violence from within the West Bank and Gaza Strip; 400 civilians have been killed, which is equal to two Madrids, in a country of 6 million people. What is not often mentioned is that many of the people—in this case 2,000—have been horrendously injured, often by flying ball bearings and nails.

The Palestinian Authority has taken almost no steps to comply with its fundamental obligations under the Israeli-Palestinian agreements to combat terrorism, to arrest terrorists, to confiscate illegal weapons, to prevent incitement and to co-operate on matters of security. To the contrary, Palestinian officials have consistently supported and encouraged terrorist actions and engaged in incitement.

In order to comply with its responsibility to protect the lives of its citizens, Israel has initiated a series of defensive measures intended to protect the lives of its civilians, while limiting, as far as possible, injury to Palestinian civilians.

Painful dilemmas are created by the fact that the terrorists invariably locate themselves within civilian areas. While the prevention of injury to civilian bystanders must be a paramount concern, the fact that a terrorist deliberately places himself within the civilian population does not grant him immunity.

Noble Lords will remember that in the Bosnia crisis, in Kosovo and latterly in Afghanistan, we ourselves have been faced with the same dilemma. It is in the nature of cowards to hide behind the skirts of civilians, and hospitals and schools are their buildings of choice. What wonderful propaganda it makes for them when a shell explodes in the wrong place.

Among these defensive measures, as a rare and exceptional measure, is the targeted killing of terrorists acting with impunity from within the Palestinian territory. Considered use of this measure is both lawful and appropriate.

I should like to look at the right of self-defence in the face of terrorist attacks. No state is required by international law to remain passive in the face of an armed attack. This is a cardinal principle of customary international law.

Israel's options for prevention have been severely narrowed by the failure of the Palestinian side to comply with its obligations to combat terrorism, and, to the contrary, by its active support and encouragement for many terrorist acts.

The alternative to targeted killings—in other words waiting for more innocents to be blown apart by Hamas—will result in far more deaths than those that occur in targeted killings. Until the Palestinian authority can effectively suppress terrorist activity, Israel is left with no choice but to dismantle the terrorist infrastructure itself.

Let me address Article 51 of the United Nations charter. The noble Lord, Lord Thomas, summarised some of its key points. Israel remains in the position of being barraged with attacks by a terrorist group, which explicitly promised to persist. Israel is not required by international law to remain passive in the face of these armed attacks. Use of phrases such as "assassination" and "extra-judicial killing" to describe such defensive acts is just a little inappropriate.

"Assassination" is generally used to describe the murder of a prominent person or public official for political ends. The targeting of terrorists focuses not on the public role of the individual, but on the role played by him in the murder of innocent civilians, and has as its goal not political motives but the saving of lives. "Extra-judicial killing" implies that an alternative legal recourse is available and has been deliberately ignored. On the rare occasions that Israel targets terrorists, it is precisely because no legal recourse is available. As such, the policy is no more extra-judicial than any individual using force to defend themselves from attack.

I turn to the fourth Geneva Convention. Some have contested that terrorists cannot be targeted in this manner due to protections afforded by the Geneva Conventions. That claim is unsubstantiated, however, as the Geneva Conventions are intended to protect civilians during times of hostilities. It follows that an individual who actively promotes and engages in terrorist attacks, utilises weaponry and armaments, or leads a hostile military organisation, cannot be defined as a civilian by any stretch of the imagination. He or she could not expect to benefit from those protections provided for civilians under the conventions. Put simply, it seems to me that those individuals who directly and actively partake in hostilities forfeit the immunities of civilians under those Geneva Conventions.

I should now like to address the topical issues of the killings of Rantissi and Yassin as well as other Hamas leaders. This is clearly an issue that causes great worry and much hand wringing. Sometimes I throw up my hands with disbelief when I hear the words that are uttered in support of these brutes, thugs and killers. These people, the Hamas leadership, have only one redeeming feature—they tell the truth. They say they want to kill all Jews, that they will never recognise the state of Israel and that they want an Islamic state from the Jordan to the Mediterranean. That is what they say and it is true. And as I said in your Lordship's Chamber last week, Jews take it very seriously when a leader says he wants to kill us all. We have heard it before and we did not believe it. These days it tends to concentrate the mind. Rantissi was one of the leaders and proponents of an extremist terror organisation which has committed 425 terror attacks, not including those that have been foiled by the Israeli defence force, killing nearly 400 Israelis and injuring more than 2,000.

Rantissi personally vowed that Hamas would continuo its attacks on Israeli citizens and repeatedly rebuffed all attempts of reaching a negotiated ceasefire, stating that, we will be unified in the trenches of resistance. We will not surrender, we will never surrender". He was adamantly against the notion of negotiation with the state of Israel, refusing even to accept the existence of Israel as a legitimate state, and he repeatedly declared his severe opposition to the Oslo accords, which were formed on the basis of such political recognition. Rantissi perpetually rejected any attempt at a ceasefire with Israel, as well as any type of political understandings between the Palestinian authority and "what is called the state of Israel", as he put it.

The Hamas doctrine leaves Israel with little feasible alternative. These circumstances necessitate that a state, which is responsible for the welfare of its citizens, defends them from such attacks. Past terror attacks, and the certainty of them in the future, compel Israel, as it would any other state, to defend itself and its citizens from terrorists who promise intentionally to inflict tremendous harm.

As the Labour leader Shimon Peres remarked following Rantissi's death: This is not the type of operation we are enthusiastic to carry out. We do it because we have no choice". Were Hamas to agree to and actually implement a ceasefire and negotiate with Israel, Israel would discontinue the policy of targeted killings. Sadly, Israel was unable to find a peaceful partner in Mr Rantissi, just as with Sheikh Yassin.

That leaves another hypocrisy. When coalition forces in Iraq successfully targeted the sons of Saddam Hussein, nobody cited Article 41 or the 4th Geneva Convention. Rantissi, like his predecessor, Sheikh Yassin, was responsible for the sort of indiscriminate killings of which the Hussein brothers would have been proud. Therefore, it must be asked why Israel's targeting of Rantissi was so deplorable when the death of the Hussein brothers was widely supported by the international community. Here is yet another hypocrisy: when our special forces based in Afghanistan and Pakistan are busy, presumably, tracking down terrorist number one, Osama bin Laden, nobody complains. Indeed, I suggest that there would be some rejoicing were he to be removed from the scene. So why should Israel be treated any differently?

I wish to remind noble Lords of an occurrence where Israel did take pre-emptive action, which has already been mentioned in this debate, and that was widely condemned by countries around the world. In 1981, the Israeli Air Force bombed the Osirak nuclear plant in north-east Iraq. At that location Iraq had been developing its own nuclear bomb and was close to going live. The plant was flattened. Saddam's nuclear hopes were destroyed. Israel reacted as she did because she felt that her existence was being threatened—and so she was. Had Israel not taken that action, imagine Saddam and his sons with the bomb. Imagine him marching into Kuwait, Iran and Saudi Arabia. What would we have been able to do? Absolutely nothing. Sometimes pre-emptive action saves the day.

8.2 p.m.

Lord Jacobs

My Lords, I am grateful to noble Lords for enabling me to speak briefly in the gap. As my speech follows that of the noble Lord, Lord Mitchell, I had guessed that I would hear much about the Israel/ Palestine situation with which I agree. I shall make just one comment on that. Sheikh Yassin, who was recently the subject of a targeted assassination, had made the statement: We are against the killing of all civilians, but Israelis are not civilians". The results are there for us all to see.

I wanted to speak because I was quite surprised that my noble friend Lord Thomas of Gresford apparently relies entirely on the rule of law. That is a good idea in principle. But if the rule of law must be adjudicated at times by the UN—and in order to comply with the rule of law, before making attacks on other countries, one must get the permission of either the Security Council or the UN; I am unsure which—that is a belief in the UN that I find difficult to share.

If, when the terrible massacres were occurring in Rwanda, an appeal had been made to France or even the United States to send in troops to try to prevent the violence, the UN might not have authorised that. In that case, under the rules as I understand them, the countries being called in could not have done anything about it, because they were not being threatened, and the massacre would have continued.

In the same way, what would have happened if the Holocaust had been occurring only within the borders of Germany, and if Germany had not been at war? At that time, would we have authorised other countries to go in to prevent the Holocaust? I have not yet heard anyone address the issue of massacres, which tend to occur within a country.

The same applies to Bosnia. The massacres that took place there were an issue brought before the UN. So far as I can recollect—I admit that I have not researched it for today—the UN was disinclined to support any attacks on the Serbs to prevent what was going on. As usual, it took America's effort, supported strongly by Britain, to bring the necessary attacks upon that country without UN permission and to bring the massacres to an end, with a peace agreement arrived at in due course. The entire reliance on the UN frightens me.

My last point is one that the noble Lord, Lord Mitchell, made. It relates to the attack on the nuclear establishment of Iraq. At that time every country in the Western world, and probably elsewhere, verbally attacked Israel for such a dastardly act. But during the Gulf War it was interesting to note that not one country felt that the destruction of Iraq's nuclear establishment was anything but good. Incidentally, had Iraq's nuclear establishment not been destroyed, might it not have used it when the war commenced?

I am sorry to say that we are being a little simplistic when we consider that we can rely entirely on the goodwill of the UN to prevent terrible things happening in this world.

8.6 p.m.

Lord Henley

My Lords, I start by disabusing the noble Lord, Lord Judd, of the fact that I am a distinguished lawyer. That accolade belongs to the noble and learned Lord the Attorney-General, whom we are very grateful to see, and the noble Lord, Lord Thomas of Gresford. I might be a lawyer, but I am not distinguished. I have forgotten most of the law that I ever knew. The simple points that I shall make are largely political rather than legal.

I congratulate the noble Lord, Lord Thomas, on bringing forward this timely debate. He ranged widely, and, possibly taking the advice of his noble friend Lord Russell, my noble kinsman, started off with the Treaty of Westphalia. I am afraid that my research took me back only to 1837, when the United States Secretary of State Daniel Webster, following the attack on the "Caroline", explained that to qualify as self-defence, there must be, necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment of deliberation … [the act should involve] nothing unreasonable or excessive, since the act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it". Obviously, going on from self defence to what we could term anticipatory self defence, there is considerable controversy. I do not wish to be drawn into that this evening, although that is properly the subject of the debate. I will concentrate more on the simple issue of the recent Iraq war, and the reasons put before another place as to why that war should be justified and why certain of us in another place voted for going to war. My noble friend the shadow Attorney-General, Dominic Grieve, made clear in a debate in another place on 9 March why he voted for the war: I did so based on my assessment of the position and, of course, on the material that the Government presented to the House—presumably, the exact basis on which the Government intended hon. Members to make up their minds".—[Official Report, Commons, 9/3/04; col. 1421.] We are therefore grateful that Her Majesty's Government's most senior law officer, the Attorney-General, is with us this evening, and we hope that he will be able to explain in some detail why he made that decision. As I think he knows, we on these Benches feel that there is a strong need to publish the full legal opinion that he offered to his colleagues in the Government to encourage them, and no doubt the senior military, about the legality of the war. My honourable friend the shadow Attorney-General made it clear, again in that debate, that we accept that normally—I stress normally—that kind of legal opinion is not published. However, this is not a normal occasion.

The shadow Attorney-General also said: It is ordinarily important that such advice should remain confidential. The reason for the confidentiality is exactly that enunciated by the Foreign Secretary: the desirability of being able to get advice without it being published and also because—I suspect that the right hon. Gentleman would not disagree—the Government cannot hide behind the advice of an Attorney-General. It is the Government's decisions, based on advice, that have to be taken. In the old days, the advice used to be called an opinion. It is someone's opinion, not the gospel truth, that is offered to the world. It is the best advice that an individual, having sought the opinion and help of others, can offer the Government on what may be a complex and difficult issue".—[Official Report, Commons, 9/3/04; col. 1421.] However, we are involved here with some complicated issues and with the vagaries of international law. We are also confronted with the fact that there were reports that there was another legal opinion from the Foreign Office that came out against the war. Perhaps the Attorney General can confirm this, but as I understand it, the author of that report resigned as a direct result of going to war.

As I made clear, normally we would accept that the advice from the Attorney General should remain confidential, but on this occasion, in March of last year, a summary of that advice was published by the Government. They argued that this compromise meant that the opinion was made public, but that confidentiality could be preserved. The summary stated: Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687, and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter, which allows the use of force for the express purpose of restoring international peace and security". The summary states that the fundamental reason for going to war against Iraq was that Saddam Hussein ignored successive United Nations demands to abandon his weapons of mass destruction programmes. This was backed up by the Government's September 2002 and 2003 intelligence assessments, which have been the subjects of further debate and considerable comment.

It seems to me, as it did in that debate on 9 March to the principal Liberal Democrat spokesman, Sir Menzies Campbell, that the principle, or the convention, that such advice not be published was breached by that publication, and also that it was a recognition by the Government of the special circumstances of the time. Again, I stress that my honourable friends, many of whom voted with the Government on that occasion, voted on the basis of what limited advice they saw—they did not see the full advice—and on the Government's intelligence assessments. It seems that the Government therefore recognised that there were special circumstances, and it seems that the case for publication of the noble and learned Lord's advice is a pretty strong one.

The Question that we are dealing with tonight can go much wider than the simple issue of the legality of the war in Iraq. Other noble Lords have commented on the situation in Israel and in other parts of the world. The noble and learned Lord could, if he wished—I hope that he will not—treat us to what might amount to an academic dissertation on the generality of the possibility of action under Article 51 of the United Nations Charter. In the light of the Question, it would, I suppose, be legitimate for him to do so. However, following last year's events and given the importance of the decisions that the Government and Members of another place had to make when they voted for the war on the basis of the intelligence dossiers that were published, we understand, after a certain amount of editing and on the basis of the advice given by the noble and learned Lord the Attorney-General, that this debate is another vehicle for the noble and learned Lord either to explain his advice in some detail or—far better—to agree to its publication.

Certain members of the Government have seen the advice. I understand that some members of the Government who later resigned, such as Clare Short, claimed that they had not seen the advice. We owe it to them, to those who voted in another place on the war and, more important, to the Armed Forces who did the fighting—many of whom paid the ultimate price—to let the legal opinion see the light of day. Whatever the noble and learned Lord the Attorney-General says this evening, we cannot in future let our soldiers go into battle with serious doubts about the legality of their action. From the Chief of the Defence Staff downwards, all must have full confidence in the rightness of what the Government ask them to do.

8.16 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, I also congratulate the noble Lord, Lord Thomas of Gresford, on having secured the debate. He asks Her Majesty's Government, whether they accept the legitimacy of pre-emptive armed attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter; and, if so, whether they will define the principles upon which it will be exercised". Despite the discouragement from the noble Lord opposite, I shall answer the Question, although I will go further—he need have no doubt about that.

Article 51 of the charter provides that, Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations". It is argued by some that the language of Article 51 provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistent position of successive United Kingdom Governments over many years that the right of self-defence under international law includes the right to use force where an armed attack is imminent

It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. That can be traced back to the "Caroline" incident in 1837. If the noble Lord, Lord Henley, will not accept the description "distinguished lawyer", he can at least accept "accurate lawyer". It is not a new invention. The charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.

The Government's position is supported by the records of the international conference at which the UN charter was drawn up and by state practice since 1945. It is therefore the Government's view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.

The concept of what constitutes an "imminent" armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al'Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.

Two further conditions apply where force is to be used in self-defence in anticipation of an imminent armed attack. First, military action should be used only as a last resort. It must be necessary to use force to deal with the particular threat that is faced. Secondly, the force used must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.

In addition, Article 51 of the charter requires that if a state resorts to military action in self-defence, the measures it has taken must be immediately reported to the Security Council. The right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. That is the answer to the Question as posed.

But I go further, particularly because it has been suggested that the military action taken against Iraq was based on an alleged right of pre-emptive action against Saddam's possession of weapons of mass destruction. Perhaps I may say very clearly that that is not the case. It has never been the position of the Government that the military action against Iraq was legally justified on grounds of "pre-emptive self defence". In particular, I should like to say to my noble friend Lord Judd that that was not the basis of this Government's action.

As your Lordships are aware, my view of the legal basis for the use of force against Iraq was set out in a Written Answer to my noble friend Lady Ramsay of Cartvale on 17 March 2003. On the same date, my right honourable friend the Foreign Secretary submitted a memorandum to the Foreign Affairs Committee which gave further detail of the legal position. Those documents made clear the Government's view that a legal basis for the use of force against Iraq existed in the combined effect of UN Security Council Resolutions 678, 687 and 1441.

It is evident, therefore, that the legal basis for the use of force against Iraq was not to be found in an alleged right of pre-emption, but rather in an authorisation given by the Security Council. Perhaps it is regrettable that the detail set out in those government documents—in particular, the FAC memorandum—is often overlooked by those commenting on the legal position.

The noble Lord, Lord Henley, raised, as has been raised previously, the issue of disclosure of such advice as I may have given to the Government. There have been many calls for that. But the Government have made it clear repeatedly to this House and another place that they do not intend to do so, given that there is a longstanding convention, adhered to by successive governments, that advice given by the Law Officers is not publicly disclosed. The convention enables the Government to seek and receive full and frank legal advice in confidence. That is in the public interest so that governments of whatever party take full and frank legal advice and act in accordance with the rule of law. I do not intend to say anything different today. I disappoint the noble Lord, although I suspect that there is no surprise in my saying that.

I take the opportunity to address some of the criticisms levelled at the legal position set out in my Written Answer. In doing that, I should like to make it clear that I am expressing my view of the legal position for the benefit of the House. I do not intend any waiver of legal professional privilege in any advice that I may have given.

I want to make four points. In a sense, this responds to allegations made today or previously by those who take a different view; I always respect an alternative legal point of view. The first allegation is that the action was unlawful because it was not authorised by the Security Council. In my view, that is not correct. Resolution 678 explicitly authorised the use of force. The second allegation is that the authorisation to use force given by the Security Council in Resolution 678 cannot be relied on in 2003. That is perhaps the principle argument that is raised. The noble Lord, Lord Thomas of Gresford, made it today.

However, the view that the authorisation in Resolution 678 is capable of being revived by a material breach by Iraq of the ceasefire conditions imposed in Resolution 687 is not new. That is supported by, first, previous practice of the Security Council. The coalition took military action against Iraq on the basis of revived authorisation from Resolution 678 on two previous occasions, in 1993 and 1998—under two different governments, Conservative and Labour—following determinations by the Security Council that Iraq was in violation of its obligations.

Secondly, it is supported by statements made by the United Nations Secretary-General. Following the 1993 action, the then UN Secretary-General, Boutros 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 Secretary-General of the United Nations, I can say that this action was taken and conforms to the resolutions of the Security Council and conforms to the Charter of the United Nations". He repeated that view in his introduction to The United Nations and the Iraq-Kuwait Conflict 1990–96, published by the United Nations in 1996. He stated that following the adoption of Resolution 687. enforcement measures remained in effect, including … the Council's authorisation to Member States to use 'all necessary means' to uphold Iraqi compliance", with its obligations.

Thirdly, that is supported by the terms of Resolution 1441. Resolution 1441, which I remind noble Lords was passed unanimously, 15 to nil, by every member of the Security Council, including Syria, makes explicit reference to the authorisation to use force in Resolution 678 and to the fact that the ceasefire was based on an acceptance by Iraq of the conditions set out in Resolution 687. This is a clear indication that it was understood by the members of the Security Council that a determination that Iraq was in material breach of its obligations would revive the authorisation to use force in Resolution 678.

These points are not always remembered by those who take a contrary point of view.

Lord Roper

My Lords, the noble and learned Lord made reference to the fact that a material breach would provide an opportunity for further action, but if I remember rightly there was also discussion in the Security Council of the suggestion that there would have to be a determination by the Security Council that there had been such a material breach.

Lord Goldsmith

My Lords, the noble Lord is uncharacteristically wrong in his facts. That is because there was, first, a determination by the Security Council itself in Resolution 1441 unanimously that Iraq was in material breach. One sees that in the first operative paragraph of the resolution: Iraq has been and remains in material breach of its obligations". Secondly, and this is very important, it made a predetermination that if, after all these resolutions and after 12 years, Iraq did not now comply with its final opportunity, that would be a further material breach. Operational paragraph 4 decides that, false statements or omissions in the declarations submitted by Iraq pursuant to this resolution of failure by Iraq at any time to comply with and co-operate fully in the implementation of this Resolution shall constitute a further material breach of Iraq's obligations".

Lord Judd

My Lords, I am grateful to my noble and learned friend for giving way. Does he not agree that while what he argues seems absolutely logical in one context, there is a reasonable ground for other members of the United Nations Security Council to say, "Surely we have to agree that the situation is now right to take the action that was envisaged"? That is what the international dispute is about.

Lord Goldsmith

My Lords, if one examines the very important language used in Resolution 1441, one sees explicitly in operational paragraph 12 this and this only: that in the event that the matter came back to the Security Council which, as we all know, it did on a number of occasions, it was to meet to "consider the situation". That language was deliberate. It was not intended that it was necessary for the Security Council to take a further decision following a further material breach by Iraq. Several members of the council argued for this during the negotiation of 1441, but their proposals to amend the text to require that the council had to decide what action to take at that stage were not accepted.

Lord Thomas of Gresford

My Lords—

Lord Goldsmith

My Lords, I will give way but I am very conscious of the time. There are other important points I need to deal with and I invite the noble Lord to be as quick as he can.

Lord Thomas of Gresford

My Lords, I will be quick. Will the noble and learned Lord deal with my point that the Government were negotiating for authorisation of further force before resolution 1441 was passed? If they were seeking further authorisation, why was that necessary if his argument be correct?

Lord Goldsmith

My Lords, it was not necessary. That is the point. What matters is the resolution that was ultimately passed then and there with the determination of an actual material breach, with a final opportunity given to Iraq and with a clear statement that a failure fully to comply or co-operate in any way would constitute a further material breach. There is no doubt—one can look at what was said by Dr Blix, and all the evidence in relation to it—and it was never contested otherwise, that Iraq failed to take that further final opportunity.

Lord Rea

My Lords, perhaps I may make a very brief point.

Lord Goldsmith

My Lords, if the noble Lord will forgive me, I am anxious to spend a moment or two on a third issue with which I must deal.

My noble friend Lord Judd made the important point that this is not a lawyers' debate but a debate about people. He referred to the response to the difficult challenges that we face. I am grateful for what he said about the heavy responsibility the Government bear—which they do—to protect the citizens of this country against all kinds of threats, but that they should not be dealt with only by the use of force.

Of course that is right. But it is important—and this debate provides the opportunity—to touch on the need for a wider international debate about the question of the use of force by states. It is an important area for discussion and we need to seek a political consensus at international level on the circumstances in which the Security Council should act under Chapter 7 of the United Nations Charter.

For the first 40 years of its existence the Security Council was constrained by Cold War political realities. A great deal has changed since then and the Security Council's practice has developed considerably. It has acted, for example, in relation to Somalia, eastern Zaire, East Timor, Sierra Leone and, most recently, Haiti.

The Security Council does not authorise in every case and the noble Lord, Lord Jacobs, was right to remind us of the situation in relation to Kosovo. That is why I do not agree with the noble Lord, Lord Thomas of Gresford, that there are only two circumstances in which force is justified. There is increasing acceptance of the view taken in 1999 that imminent humanitarian crises justify military intervention.

My right honourable friend the Prime Minister made an important contribution to the debate in his Chicago speech in 1999 and he made a further important contribution to it in the Sedgefield speech on 5 March. We welcome the contributions that others have made to the debate—for example, the Canadian-sponsored International Commission on Intervention and State Sovereignty—and we very much welcome the establishment by the United Nations Secretary-General of a high-level panel—including the noble Lord, Lord Hannay of Chiswick, of this House, although in a personal capacity—which is looking at how the United Nations can improve its response to the broad range of threats to international peace and security, including the circumstances in which the use of force is justified.

I am afraid that I am prevented from dealing at any length with the points made by my noble friend Lord Mitchell and the noble Lord, Lord Jacobs. I simply say this. The Government deplore and have repeatedly condemned the terrorist atrocities committed against Israel and we recognise its right to defend itself against terrorism. But we also say that Israel must act in accordance with international law. That is what lies at the heart of the statements which have been made about the recent targeted killings.

The tragic impact of suicide bombings has been all too clear. Israel is entitled to take steps to ensure its security and safeguard itself against terrorism, but that conflict cannot be solved by military means alone. Ultimately, Israel's security can be achieved only through a just and lasting settlement negotiated between the parties. The road map offers the best opportunity for peace and we now look for both sides to move forward in implementing its obligations.

I am here to answer for the United Kingdom Government, not for anyone else's view. That would be extending my brief a little too far. The noble Lord, Lord Thomas of Gresford, referred to what the United States has said; I am not here to answer for it. If one looks at the document, one sees much more than simply a statement about unilateralism.

I conclude with the very wise words of Kofi Annan, who said last September, it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable".

Lord Rea

My Lords, before the Minister sits down, may I make the point that I tried to interject while he was in the midst of making an important point? Why was it not possible to allow the United Nations Security Council inspector, Hans Blix, to determine whether there had been a material breach of Resolution 1441? Instead, why was there an attack while he was still only half way through his work?

Lord Goldsmith

My Lords, I shall answer the noble Lord's question. If one looks at what Dr Blix said in his reports to the Security Council on 27 January, 14 and 20 February and 6 March, when he issued a 173-page paper detailing unresolved issues, one sees that he did answer that question. His document catalogued Iraqi evasion, deceit, and the feigning of co-operation while in reality pursuing a cynical policy of concealment. Twenty-nine instances of Iraqi failure provide credible evidence and there were at least 17 occasions when inspectors uncovered evidence that contradicted the official Iraqi account. That utterly supports the view, which nobody contested, that Iraq had failed to take the opportunity which the Security Council unanimously had given it.

House adjourned at twenty-two minutes before nine o'clock.