Iraq

Lord Falconer of Thoroton Excerpts

Friday 26th September 2014 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am delighted to follow the noble Lord, Lord Hurd, whose authority and insight were evident in his remarks, with which I wholeheartedly agree.

I support the Government’s proposal to contribute to the air strikes within Iraq against ISIL in aid of the Iraqi Government’s defence of Iraq and its citizens. The question of whether further intervention is required, including in Syria, is for another day. Nothing should be ruled out. We should stand up to ISIL by using force to help those who are in the front line against it. There is no other sensible or just option.

I would not support the use of force by Her Majesty’s Government unless it was lawful under public international law. I have no doubt that it is and I will address this issue briefly. The use of force by one state in the territory of another state is lawful if authorised by the UN under Article 42, or in self-defence, or pursuant to the responsibility of nations to protect the citizens of another country who are the subject of mass human rights abuses from which their own Government cannot or will not protect them, or also when there is an immediate humanitarian emergency that is likely to be averted by the use of force. The precise parameters of this last possible basis for the use of force under international law are uncertain, but it exists and was the basis for intervention by Her Majesty’s Government in northern Iraq in 1991 and following, and in Kosovo in 1999. It does not require a UN resolution.

In this case, there is no Article 42 resolution. Self-defence requires no UN resolution. It includes collective self-defence. Where one country, at the request of another, comes to the aid of the requesting country in defending itself, the use of force by that other country—in this case our own—is lawful, provided that the force used is proportionate and is in response to an immediate threat to the country defending itself. Iraq has requested assistance, as the noble Baroness the Leader of the House has described. There is no doubt that there is a threat to the territorial integrity of Iraq and the lives of its citizens. That threat is real and immediate.

The force used in self-defence must be proportionate. That must be a judgment made on the ground, with which we should be extremely slow to interfere, as the noble Lord, Lord Hurd, indicated. We offer six Tornado aircraft, as well as continued surveillance, targeting ISIL’s military capacity in Iraq. It seems extremely unlikely, in the light of that contribution, that issues of proportionality will arise.

Collective self-defence—a basis for the use of force expressly preserved by Article 51 of the UN charter—provides clear legal authority in this case. This legal justification is uncontroversial and while, no doubt, there will be some who will seek to controvert it, it is not significantly in doubt. As for the “responsibility to protect” doctrine, I can see a very strong case for it being invoked. There are many who think it cannot be invoked without a UN resolution. But Iraq, in seeking the support of other nations in self-defence, is responding appropriately to the threat to itself and its citizens.

The right of countries to intervene with force in another country, under the “responsibility to protect” doctrine, arises where that country’s Government will not or cannot protect their own citizens. Where, as in this case, the Government genuinely seek the assistance of other countries to protect their citizens and the assistance obtained is likely to be a sufficient and proportionate response to the threat, and while the “responsibility to protect” doctrine may also justify intervention, the detail of that need not be examined because of the clear collective self-defence case. Similarly, that is also the case in respect of the immediate humanitarian emergency basis.

I have one final point. The constitutional course adopted by the Government in this case, in making and seeking Commons support for the decision, is right. The decision on whether to use force resides constitutionally with the Executive. There is, however, a constitutional convention that, under normal circumstances, the Government should seek the support of the Commons in their decision to use force, in advance of its use. Where that support is not forthcoming, force should not be used. That convention is not formalised in the sense of appearing in legislation or standing orders. To reduce it into writing would reduce its flexibility. But it exists and it should be given effect to. I congratulate the Government on giving effect to it. It is right that we are also recalled to give our views, but it is not us who have to endorse the right to go to war: it is the other place.