Landmines and Cluster Munitions

Lord Verdirame Excerpts

Thursday 3rd April 2025 Lords Chamber

Asked by

[Lord Verdirame]

To ask His Majesty’s Government what assessment they have made of the announcement by NATO allies, including Baltic states and Poland, that they intend to withdraw from the Ottawa Treaty on anti-personnel landmines and the Convention on Cluster Munitions.

[Lord Verdirame (Non-Afl)]

My Lords, I thank everyone who will be speaking today. No doubt we will hear a range of views. I am sure all of us would rather this debate had been prompted by new ratifications of these treaties, rather than withdrawals, and by a more reassuring security situation in Europe. But I trust we can all agree that it is not a lack of commitment to international law or to arms control that has led Poland, Finland and the Baltic states to announce their withdrawal from the Ottawa treaty and Lithuania to withdraw from the Oslo Convention on Cluster Munitions. These are free, law-abiding, peace-loving nations led by mainstream political parties: centrist parties affiliated with the European People’s Party in Poland, Finland and Latvia, social democrats in Lithuania and the liberals in Estonia.

I co-authored the recent report by Policy Exchange on these developments. I thank the noble Lord, Lord Godson, for his intellectual leadership and Air Marshal Ed Stringer, a senior fellow at Policy Exchange, for his invaluable expertise on defence matters. There is a question mark in the title of that report because I do not yet have firm answers to the questions we posed, but these questions are urgent and we need to hear what our Government’s thinking is.

On that note, in an Answer to a Written Question on this topic on Tuesday, the noble Lord, Lord Coaker, said the UK will continue

“to engage bilaterally on the actions States plan to take”.

Can the Minister tell us a bit more about the engagement that the Government have had so far with our five allies, following their announcement? Can she also tell us whether there has been any engagement with the French Government on this matter?

While our focus today is on the Ottawa treaty and the Oslo Convention on Cluster Munitions, we must remember that other important treaties and arrangements for our security are in crisis. The 1990 Treaty on Conventional Armed Forces in Europe was suspended by Russia in 2007. In November 2023, Russia withdrew. Russia has also withdrawn from the open skies treaty. Russia has stopped all verification visits under the 2011 Vienna Document, a very important confidence and security-building instrument.

On the non-conventional front, the picture is also very concerning. Since 2018, NATO has declared Russia in breach of the 1987 Intermediate-Range Nuclear Forces Treaty. The US withdrew in 2019, citing Russia’s continued non-compliance as a reason. In 2023, Russia rescinded its ratification—as it put it—of the Comprehensive Nuclear Test-Ban Treaty.

Russia was never a party to the Ottawa treaty, although it was, and still is, a party to a pre-Ottawa treaty that regulates, but does not ban, the use of landmines. Everyone else in Europe, including Belarus, joined the Ottawa treaty. The Americans did not. The main reason they gave was the defence of South Korea, which has a land boundary of 240 kilometres with North Korea. South Korea has a very advanced military with an active personnel of 500,000 and the second-largest reserve army in the world at more than 3 million. There is a long-standing and significant American military presence in South Korea. Each of the five countries that announced its withdrawal from the Ottawa treaty has a longer land boundary with Russia and Belarus than South Korea has with North Korea. Their armed forces are considerably smaller than South Korea’s, and the Joint Expeditionary Force, which we lead, is also smaller than the US forces in the Korean peninsula. In that sense, it is not surprising that these European allies, in the much more challenging position they face, with Russia on the other side, have concluded that they too may need anti-personnel landmines for their defence.

At this point, the only NATO country sharing a border with Russia that has said it will not withdraw from Ottawa is Norway. Given where that boundary is—some 250 miles north of the Arctic Circle—Norway is simply not as vulnerable to a land invasion from Russia as the other five states.

Where do these developments leave Britain as a state party to the Ottawa treaty, committed, as we are, to the defence of our allies? The obligations under Article 1 are very far reaching. We cannot use anti-personnel landmines, retain them or transfer them directly or indirectly to anyone. Nor can we assist or encourage, in any way, anyone to use them. Section 2 of the Landmines Act 1998 creates various domestic law offences based on these provisions. If anti-personnel landmines become, for better or worse, an important part of the defensive strategy of front-line NATO states, do the Government believe that we can be as effective in defending them while we remain subject to these far-reaching obligations? Have we asked these allies what they think?

To justify our co-operation with them, we would have to rely on a declaration we made on ratification of the Ottawa treaty in 1998. This declaration says that the UK’s understanding is that

“mere participation in the planning or execution of operations”

with non-state parties that use anti-personnel landmines is not a form of assistance prohibited under the treaty. But we are more than mere participants; we are the lead nation of the Joint Expeditionary Force, and therefore the NATO country that would have to lead in the defence of Estonia. Do the Government consider that this unilateral declaration remains fit for purpose in the current situation, and that it would survive legal challenge?

The Cluster Munitions Convention was concluded 10 years after the Ottawa treaty. By then, Russia’s neighbours were becoming nervous. Poland, Finland, Latvia, Estonia, Romania, Ukraine, Turkey and, of course, the United States all stayed out. The one country that went in is Lithuania, but it has now withdrawn. Unlike the Ottawa treaty, the Cluster Munitions Convention does have a provision, Article 21(3), that expressly permits state parties to

“engage in military … operations with States not party to this Convention that might engage in activities prohibited to a State Party”.

The then Defence Secretary, the noble Lord, Lord Browne of Ladyton, who I know intended to speak today, would have reminded us that this was a key provision from a UK perspective, because it meant we could still operate with the Americans and rely on them, but is it sufficient now?

The Prime Minister, who must be congratulated on his leadership throughout this crisis, has said that the Europeans must now be ready to do the “heavy lifting”. He said, rightly, that ours is

“an era where peace … depends upon strength and deterrence”.—[Official Report, Commons, 3/3/25; col. 25.]

If that is so, can Europe’s two main military powers—the UK and France—really afford to deprive themselves of this capability? Let us not forget that both the Ottawa treaty and the Oslo convention provide that if the withdrawing state is engaged in an armed conflict, the withdrawal will take effect only after the end of the armed conflict. Ukraine, for example, remains bound by the Ottawa treaty until the end of its conflict with Russia, even though Russia is not a party. So this rule applies even if one party is the victim of unprovoked aggression by a non-party.

We must therefore consider now the impact on our potential deployment in Ukraine. The purpose of such deployment would be to deter—or to dissuade, as President Macron put it—further Russian aggression. Cluster munitions and anti-personnel landmines have been used widely by both parties in the Ukrainian-Russian conflict. I have read no analysis that suggests that you could be an effective belligerent in that theatre without these capabilities. Indeed, one of the last decisions of the Biden Administration was to supply Ukraine with anti-personnel landmines because, as the then US Defense Secretary Lloyd Austin put it, Russia had changed its tactics and so Ukraine needed them.

Would it be wise to deploy British troops without equipping them with the capabilities that—according to the Americans, the Ukrainians and other front-line NATO allies—are necessary in that very theatre? If we did, would such a deployment have the credibility that effective deterrence requires? In a widely reported speech last month, Prime Minister Tusk said that Poland must achieve “the most modern capabilities”, even in

“nuclear weapons and modern non-conventional weapons”.

That is an alarming statement, and we must consider how best to respond to the concerns that prompted it. Is this not the time to provide Poland and other allies with maximum reassurance on the conventional front to lower any incentive they might have to explore the acquisition of non-conventional weapons? How can we reassure them effectively if we are not prepared to consider reacquiring conventional capabilities that under previous assumptions we thought we could dispense with but that have turned out to be necessary?

We cannot avoid conventional rearmament in Europe, but we cannot afford—and may still have time to prevent—non-conventional proliferation. If we are too cautious on the conventional weapons front, we might miss an opportunity to defuse a far more terrifying arms race. As the Prime Minister said, we face tough decisions—and this might be one of them.

Israel-Gaza Conflict: Arrest Warrants

Lord Verdirame Excerpts

Tuesday 26th November 2024 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My noble friend is correct in that the warrants are for war crimes of starvation, intentional attacks on civilians and other inhumane acts. I point out to noble Lords that the indictment is not a finding of guilt. It is the start of a process. There would theoretically be a court process that would investigate all the alleged crimes.

[Lord Verdirame (Non-Afl)]

My Lords, the first principle of the rule of law, according to Lord Bingham, is that rules must be “intelligible, clear and predictable”. I echo the question asked by the noble Baroness, Lady Ludford, from the angle of international law: the Government say they are committed to the international rule of law, which means being committed to the conduct of foreign relations under clear and predictable rules, yet say they do not know whether those rules, including customary international law rules on immunity, would mandate or preclude the arrest of Prime Minister Netanyahu.

[Baroness Chapman of Darlington (Lab)]

That is right. The issue is that this has never happened. We have never had a serving Head of State subject to an ICC warrant visit the UK. We have had situations under European arrest warrants and the situation with Pinochet, but we have never had this. We need to see the warrant; it needs to be seen by the court, which needs to make a determination at that point.

Commonwealth Parliamentary Association and International Committee of the Red Cross (Status) Bill

Lord Verdirame Excerpts

2nd reading
Friday 17th May 2024 Lords Chamber

[Lord Verdirame (Non-Afl)]

My Lords, I welcome this Bill and I commend the noble Baroness, Lady D’Souza, for sponsoring it. It is a privilege to speak before the noble Earl, Lord Sandwich. As a relatively new Member of this House, I look forward to his speech and I am sorry that it will be a valedictory speech.

I will focus my remarks on the ICRC. Of the two institutions, it is the one with which I am more familiar, both through my practice at the Bar and through my work as an international law academic. In fact, my academic home for many years was the Lauterpacht Centre for International Law in Cambridge, which hosted the ICRC and British Red Cross researchers who worked on the Customary International Humanitarian Law Project. Promoting and working for the faithful application of IHL is one of the core functions that the ICRC has under the Geneva conventions, but of course most of the ICRC’s work is on the ground. Its key functions under the conventions include assistance to victims of armed conflict and, very importantly, serving as an intermediary between parties to armed conflicts. It is especially for this work that the ICRC needs at least some of the privileges and immunities normally accorded to international organisations.

That said, the grant of privileges and immunities is not something that should be agreed to lightly. It means, in effect, that organisations, individuals and their activities are placed outside the reach of the law. The approach of the Bill, quite sensibly, in my view, is to look at the International Organisations Act 1968 as the model. That means that the specific extent of the privileges and immunities that are to be granted to the ICRC and to the CPA is going to be set out in an Order in Council. There is, however, one important difference. Section 1(6) of the International Organisations Act provides that the Order in Council

“shall be so framed as to secure … that the privileges and immunities conferred by the Order are not greater in extent than those which, at the time when the Order takes effect, are required to be conferred”

under the relevant treaty; in other words, in deciding how much immunity and how many privileges are to be granted to an international organisation, His Majesty’s Government would begin by looking at what the relevant treaty says. These treaties will normally be very complex and detailed legal documents such as the UN Convention on the Privileges and Immunities of the Specialized Agencies.

In the case of the CPA and the ICRC, we do not have a treaty that sets out all of the detailed provisions. In paragraph 4, the Explanatory Notes say:

“It is proposed that the Government will conclude written arrangements with the ICRC and CPA which will set out the parameters of the status change. They will include the privileges and immunities which the Government has decided to confer on the organisations”.


Differently from the case of international organisations under the International Organisations Act, we will get the legal document that specifies the extent of the privileges and immunities after the legislation. The document will not be the result of a treaty-making process, but it will reflect what the Government consider appropriate to grant. As I said, the analogy between the ICRC and international organisations, while not a perfect fit, is the best we have. I appreciate that the approach proposed by the Bill remains the most practical one.

It is important to be reassured that the arrangements, which will eventually be agreed with the ICRC and the CPA, will be subject to parliamentary scrutiny. The arrangements will not be a treaty, so they fall outside the scope of the Constitutional Reform and Governance Act 2010. They do not need to be laid before Parliament prior to ratification and there will not be a ratification process in that sense. Given that the arrangements will end up shaping the extent of the immunities that these institutions will be granted under our law, it is appropriate that your Lordships’ International Agreements Committee should scrutinise them.

Others have touched on the important issue in Clause 2 around the protection of confidential ICRC information. I think the reasons for this are compelling, and the definitions of the key terms of “protected ICRC information” and “confidential” are clear and would work well. There is a separate provision on evidence in Clause 3, which mirrors a mechanism we have under other immunity statutes: that the Foreign Office can provide certificates that are conclusive as to the issue of fact relative to the question of immunity. The Foreign Office—I know this from personal experience, having worked on a number of these cases—uses the power very sparingly, and I am sure it would continue to do so. With that in mind, I very much welcome the Bill, and I too wish it a speedy passage.

Israel/Gaza

Lord Verdirame Excerpts

Tuesday 24th October 2023 Lords Chamber

[Lord Verdirame (Non-Afl)]

My Lords, I too thank the Minister for his wise words in opening the debate. I join others in calling on him and the Government to use their influence on Qatar to ensure the release of the hostages. We also need to record our thanks to the International Committee of the Red Cross and the Red Crescent for the very positive role they have played.

There has been a lot of talk about proportionality in the law on self-defence. I refer to the words that the noble Lord, Lord Pannick, used a few days ago on the test of proportionality. It does not mean that the defensive force has to be equal to the force used in the armed attack. Proportionality means that you can use force that is proportionate to the defensive objective, which is to stop, to repel and to prevent further attacks.

Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says it does and what Hamas has done and continues to do.

Asking a state that is acting in self-defence to agree to a ceasefire before its lawful defensive objectives have been met is, in effect, asking that state to stop defending itself. For such calls to be reasonable and credible, they must be accompanied by a concrete proposal setting out how Israel’s legitimate defensive goals against Hamas will be met through other means. It is not an answer to say that Israel has to conclude a peace treaty, because Hamas is not interested in a peace treaty.

Proportionality also applies in the law that governs the conduct of hostilities, not only in self-defence. The law of armed conflict requires that in every attack posing a risk to civilian life, that risk must not be excessive in relation to the military advantage that is anticipated. That rule does not mean, even when scrupulously observed, that civilians will not tragically lose their lives in an armed conflict. The law of armed conflict, at its best, can mitigate the horrors of war but it cannot eliminate them. The great challenge in this conflict is that Hamas is the kind of belligerent that cynically exploits these rules by putting civilians under its control at risk and even using them to seek immunity for its military operations, military equipment and military personnel. An analysis of the application of the rules on proportionality in targeting in this conflict must always begin with this fact.

There has also been some discussion about siege warfare. The UK manual of the law of armed conflict, reflecting the Government’s official legal position—it is a Ministry of Defence document—says:

“Siege is a legitimate method of warfare … It would be unlawful to besiege an undefended town since it could be occupied without resistance”.


Gaza is not an undefended town. It is true that obligations apply to the besieging forces when civilians are caught within the area that is being encircled, and those obligations include agreeing to the passage of humanitarian relief by third parties. But it is not correct to say that encircling an area with civilians in it is not permitted by the laws of war.

A further point that concerns the laws of war is also of particular relevance to the British Government’s practice. It has already been mentioned that the Government have taken the view that Gaza remains under Israeli occupation, even though Israel pulled out in 2005. The traditional view until 2005 was that occupation required physical presence in the territory. That view is consistent with Article 42 of the Hague regulations of 1907, which states that a territory is occupied when it is actually placed under the authority of the occupying power. Again, it is also the view taken by the UK manual of the law of armed conflict, which reflects the UK’s official legal position and states that occupation ceases as soon as the occupying power evacuates the area. The European Court of Human Rights, in its jurisprudence, has also adopted a similar approach to occupation. So I have always been rather baffled by the British Government’s position on this issue, which, as far as I know, has not changed. Yes, it is true that Israel has exercised significant control over the airspace and in the maritime areas, but even as a matter of plain geography it takes two—Israel and Egypt —to control the land access points to Gaza.

More fundamentally, it is Hamas that has been responsible for the government and administration of Gaza. I appreciate that this is a legal matter on which the Minister may not want to respond immediately but it is an important one, because the legal fiction that Israel was still the occupying power under the laws of armed conflict has been relentlessly exploited by Hamas to blame Israel for everything, while using the effective control that it has over the territory, the people and the resources to wage war.

On a final note, I would like to say something briefly on the way in which the war is being reported. When a serious allegation is made, particularly one that could constitute a war crime, the immediate response of the law-abiding belligerent will be to say, “We are investigating”. The non-law-abiding belligerent, by contrast, will forthwith blame the other side and even provide surprisingly precise casualty figures. The duty to investigate is one of the most important ones in armed conflict. What happened in the way in which the strike on the hospital was reported is that the side that professes no interest whatever in complying with the laws of armed conflict was rewarded with the headlines that it was seeking.