Syria and the Use of Chemical Weapons

Lord Goldsmith Excerpts

Thursday 29th August 2013 Lords Chamber

[Lord Goldsmith]

My Lords, it is inevitable that this debate looks to the past. Some of the parallels that are being drawn with past events are absolutely right. Some of them—in particular I single out what is being said about Iraq—are not necessarily helpful parallels. However, there is a parallel that matters. Just as it was essential in relation to Iraq that two conditions were satisfied, so they must be satisfied if there is to be military intervention here. I identify those two conditions as: any action must be lawful, but must also be right. Those are not the same. Being lawful is a necessary precondition to military action, but it is not enough on its own. Equally, being right and moral may well be essential, but it is not enough on its own.

My contribution to this debate is to focus particularly on the issue of legality, on which we now have, in the note from the Government, a statement of their position. I notice how it is described as a statement of the Government’s position and is divided into two parts. The first is legal principle which identifies in what circumstances military action may be lawful and the second considers whether the conditions that are set out are met. There is an important difference between them. On the first issue, I agree, or Members of this House would agree, that the primary and preferred approach or basis for legal action would, of course, be a United Nations Security Council resolution passed under Chapter 7. Will it happen? I suspect that all noble Lords in this House believe that it will not because of the existence of the veto.

Is there, therefore, another basis? This is where this potential conflict differs from Iraq as there is no pre-existing Chapter 7 resolution that could be relied upon. The Government say that humanitarian intervention would be the legal basis. That is a controversial doctrine, although more and more accepted. It was the basis on which action was taken by NATO in relation to Kosovo and the bombing of Serbia. Generally that would be recognised as justified, I think by many people in the world, and increasingly by international lawyers, although there is no basis for it in fact in the United Nations charter. However—this is essential and I am glad to see that it is made clear in the Government’s statement of legal conditions—certain conditions must be met.

First, the purpose of the humanitarian intervention must be just that. It is for humanitarian purposes. It is to prevent further humanitarian catastrophes. It is not to punish. Even though there are breaches of international law if chemical weapons are used, that does not justify the use of force for punishment. It must be to prevent further humanitarian catastrophes. That means, in itself, that one needs to be satisfied as to what has happened. Was there a chemical attack? Did it take place? Was it the result of action by the Assad regime? Critically, if action is not taken, is there a likelihood—I would say a strong likelihood—that that may be repeated? I will come back to that application.

[Lord Hurd of Westwell]

My Lords, I am grateful to the noble and learned Lord for giving way. He will have seen reports, as I have, that the terms of reference of the inspectors now in Damascus precludes them, as the noble Baroness, Lady Falkner, reminded us, from pointing a finger. They are not in the business, and would not be allowed to get into the business, of allocating blame or responsibility.

[Lord Goldsmith]

I did not want to deny the noble Lord the opportunity of saying something given his previous position, but he is not dealing with a point that I am making. I am not saying that UN inspectors have to say what has taken place, but one must be satisfied that that is what has happened. Secondly, the use of force needs to be a measure of last resort—you need to try everything else first—and thirdly, it needs to be proportionate. One needs to understand what that means. Proportion is not just about the same degree of force that someone else has used. It means that you are using no more force than is necessary in order to achieve your objective. The objective here would be to prevent a further humanitarian catastrophe of further attacks using chemical weapons, if that is what has happened.

When I look at the second part of what the Government say and at the JIC report, I start to have some concerns. For example, on the issue of who is responsible for the attack which took place, I find it convincing that it was the Assad side for the reasons that are given. Was it, on the other hand, the Assad regime at the very top? I notice that the JIC report says that it is believed that authority has been delegated to commanders. I have seen press reports suggesting that there may be a rogue—perhaps that is the wrong word—commander acting on his own initiative. One needs to know, because if that is what has taken place, the chances of it happening again are different from the chances of it happening again if a decision was taken at the centre. That is just one example of what one needs to analyse.

I need to conclude given the limited time. I am glad that we and the House of Commons do not have today to make a decision, because I am concerned that the answers to these questions are not yet fully given. One would need to look at the evidence. I take the point that you can never be absolutely sure about these things and should not try to be, because that is a way of shirking responsibility, but you have to make a good-faith judgment, on evidence, as to what the situation is. If and when this matter returns, the other place and this place will want to ask the question: are we satisfied, on good-faith evidence and in a good-faith judgment, that this action is necessary to prevent a humanitarian catastrophe and is no more than is needed to achieve that result?

--- Later in debate ---

[Baroness Anelay of St Johns]

My Lords, I understand that Mr Miliband posed a question to my right honourable friend the Prime Minister as to the impact of both the defeats tonight—each of the Motions was lost. I understand that the challenge was whether my right honourable friend the Prime Minister would give an undertaking that he would not override the will of the House, and I believe that he has given that undertaking. There is a rolling Hansard, and I suggest that that is something that will be finalised with the Hansard tomorrow.

I think that it is impossible for the Government to deliver what the noble Baroness is asking for, which is to find out exactly what was said in the Commons and, within a matter of time, report it here. Certainly those who have been using their iPads and the modern technology that that gives, including the Clerk of the Parliaments, have been following proceedings in another place. Our proceedings are here. It is very fair for the noble Baroness the Leader of the Opposition to ask what next steps may be made. I can only say what the Prime Minister has said currently in another place. Clearly, I suspect that there may be other developments tomorrow. However, that is my understanding as it currently stands—that the Prime Minister will consider the matters as they have developed in the Commons.

[Lord Goldsmith]

My Lords, perhaps I may press the noble Baroness a little further. I understand that today the State Department said that it was not concerned or would not be deterred in any way in deciding what it was going to do by what this Parliament decided. The consequence of that may well be, therefore, that the United States may take action quite soon. Indeed, there were suggestions that that might happen this weekend. For that reason, and because the House has been recalled—it is more of an emergency for this House because it was not due to sit next week—it would be enormously helpful to know what might happen next and what involvement this House might have in it. That is why I would certainly support the suggestion of my noble friend for at least a short adjournment to see whether there is a plan B and whether the government Front Bench can advise the House on what that plan B is.

[Lord Wallace of Saltaire]

Asking us to provide a full sketch of a plan B at 23.00 on a Thursday night is not possible. I am of course not privy to what the Americans may or may not be planning. We all take what is being said on the opposition Benches under consideration, but at the moment we cannot predict what will happen over the next few days.