Syria and the Use of Chemical Weapons

Debate between Lord Hurd of Westwell and Lord Goldsmith

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?