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Cluster Munitions

My Lords, the House will be indebted to the noble Lord, Lord Elton, for this opportunity to continue the debate that took place on the Second Reading of the Bill introduced by my noble friend Lord Dubs on 15 December, and in particular to indicate our support for what I hope my noble friend on the Front Bench will tell us will be the Government’s message to the world at Lima. I congratulate my noble friend on the work that he has done in these negotiations already. In the limited time available to us, I beg your Lordships’ indulgence to deal with one issue that arose out of that debate. Of course we would all like to see Lima lead to a convention, but in the December debate the noble Lord, Lord Elton, raised the question of whether cluster bombs are unlawful already. In that debate, the right reverend Prelates the Bishop of Coventry and the Bishop of Salisbury pointed out that, even if the use of cluster bombs is said to be lawful, it does not follow that to use them is morally right. When I was young—long, long ago—we often heard the expression, ““They can’t touch you for it””. It became a one-liner that was used by comedians again and again. It exposed the excuse that, provided that an action was not unlawful, it did not matter that it was dishonest, selfish or cruel. The lawfulness or otherwise of using cluster bombs does not foreclose the debate. I beg a few moments of your Lordships’ time to examine the Government’s assurance that the use of these weapons is lawful. In the December debate,my noble friend Lady Crawley, no doubt on departmental advice, said that, "““cluster munitions are lawful weapons when used in compliance with international humanitarian law””.—[Official Report,15/12/06; col. 1764.]" It would be wrong to let that assurance pass without a moment’s examination. There are international agreements and conventions to protect civilians, going back to the St Petersburg declaration of 1868, the Geneva Convention and The Hague regulations of 1907. Admittedly, the protection that they offer is limited. However, international humanitarian law includes customary law, and customary international law is a living body of doctrine that can develop with changing situations. It has developed as the nature of warfare itself has changed. When engagements were on an open battlefield, troops employing firearms had no difficulty in targeting combatants because they knew that the cavalry bearing down on them were combatants. It was very unlikely that a civilian would be found within range. To injure civilians, you had to set out deliberately on an expedition away from the battlefield. More recently, as we were reminded in the December debate, and as we have read in the book by Sir Rupert Smith, The Utility of Force, the nature of warfare has changed. It normally takes place now not in deserted countryside, but in towns, among houses and concert halls, and in thoroughfares and side streets. It is very difficult to guarantee hitting an object of your choice without a serious risk of causing what is sometimes euphemistically called ““collateral damage””, particularly when the weapons are frequently delivered from aircraft, as happened in Kosovo. If to that you add scattering your bomblets over a wide and ill defined area and you extend their lethal effects overa substantial period, and even if we accept that the M85 weapons have a failure rate of some 1 per cent—which your Lordships may not accept—a massive number of civilians will be at serious risk of death or fearful injuries, with unexploded weapons waiting to inflict mayhem in the weeks and months ahead. In those circumstances, the use of a weapon that cannot be targeted and which scatters destruction over a wide area cannot avoid a serious risk of inflicting disproportionate casualties on civilians. The principles of international law that are applicable to that situation were established by the International Court of Justice in its advisory opinion of 1996 on the legality of using nuclear weapons. The court declared, first, that a clear body of international humanitarian law is now independent of specific treaty or convention obligations. States do not have unlimited freedom of choice as to the weapons that they use. Secondly, the court stated that humanitarian law establishes a clear distinction between combatants and non-combatants and that states cannot lawfully employ weapons that are incapable of distinguishing between those categories. Thirdly, the court said that those principles apply to new weapons in the same way as they do to pre-existing ones. The court considered the argument that nuclear weapons could never be used in accordance with those principles, but it held, by seven votes to seven, on the casting vote of the president, that it could not conclude definitively that nuclear weapons could never be used lawfully in all circumstances. However, the court declared that the use or threat of use of nuclear weapons would generally be contrary to the rules of humanitarian law. I see no distinction in that reasoning between nuclear weapons, which can rarely, if ever, be used without the risk of inflicting major casualties on the civilian population, and cluster bombs. I do not dissent from the formulation of my noble friend Lady Crawley that cluster bombs are lawful when they are used in compliance with international humanitarian law, but the caveat is that, like nuclear weapons, they can rarely, if ever, be used in compliance with international humanitarian law. It is like giving planning permission for a swimming pool but specifying that people can only use it if they do not get wet. Even leaving aside the need for a convention specifically related to cluster bombs, it is virtually impossible to argue convincingly that their use does not infringe international humanitarian law. I hope that mynoble friend on the Front Bench can assure us that the Government will look at that again. It would bebetter to conclude a specific convention, so thateveryone can see plainly what they are pledging themselves to. In the December debate, there were a number of references to Protocol V of the Convention on Certain Conventional Weapons. My noble friend Lady Crawley announced that the Government intended to accede to it at the earliest opportunity, but I have not been able to trace an announcement that they have done so. Can my noble friend say whether the United Kingdom has now acceded and, if not, what is the difficulty? Protocol V relates to the obligations, after the conflict, of those who have used these weapons. What is needed is an obligation on states not to employ these weapons in the first instance. We hope that the UK delegations will play leading roles in Lima and in future gatherings. I wish them well.