Syria and the Middle East

Lord Morris of Aberavon Excerpts

Monday 1st July 2013 Lords Chamber

[Lord Morris of Aberavon]

My Lords, last Thursday the noble Baroness, Lady Warsi, to whom I am grateful for opening this debate, was asked point blank by the noble Baroness, Lady Falkner of Margravine, whether—I paraphrase—given the assurances of the Prime Minister in the House of Commons, there would be a vote prior to any decision to give arms to the Syrian opposition, and what would be the arrangements in the Recess. I regret to say that the briefing of the Minister of State did not deal adequately with the situation. She said that the House of Commons would,

“have the opportunity to discuss the issue”—[Official Report, 2706/13; col. 859]—

and that she would consult on what would occur if Parliament was not sitting. Today she was much clearer. She said—if I have the words correct—that Parliament “would be engaged”, and I think she said that Parliament would have to agree.

On 19 June the Prime Minister said that we have,

“a big commitment to come to the House, explain, vote and all the rest of it, but obviously Governments have to reserve the ability to take action swiftly on this or other issues”.—[Official Report, Commons, 19/6/13; col. 909.]

Of course, in the development of what I believe is now a convention for parliamentary approval, there has to be such a reserve power for speedy action if the country is in danger. However, this is not that kind of situation. The Government must make abundantly clear their commitment to a vote of approval—I hope that they already have, but perhaps they could repeat it—and spell out what will happen in the Recess.

It used to be said that going to war did not need parliamentary approval. Technically, for a whole host of legal reasons, we have not declared war since declaring it against Siam in 1942. The most usual scenarios today are armed conflict or the commitment of troops. In the past, Governments were able to act under the royal prerogative—what Churchill deemed “the people’s prerogative”—but all that is changing. Parliamentary approval for the war in Iraq broke new ground.

If one couples that with a report of your Lordships’ Constitution Committee in 2006—to which the noble and learned Lord, Lord Mayhew, and I gave evidence as former Attorney-Generals—one sees that the convention on the need for parliamentary approval is firmly developing. I find it difficult to visualise a situation short of an extreme crisis where armed conflict would be undertaken without parliamentary approval. I would argue that the supply of arms, with the possibility of mission creep, comes very near to engaging in armed conflict, and that there is a need there, too, for parliamentary approval. Indeed, I would like to hear the argument for why it would not be covered by the growing convention.

Not for the first time, the Security Council is paralysed. There is no Security Council resolution that I know of that would permit the supply of arms. Arming the rebels could be seen as an illegal use of force contrary to Article 2(4) of the UN charter. I note that in May 2013 the European Union lifted its arms embargo, which means that the transfer of arms, subject to certain conditions, could be legal under European law. There could be at least five legal objections to supplying arms after the lifting of that embargo. Even the arms trade treaty signed in June of this year, which is yet to be ratified, requires states to abide by the UN charter.

I would counsel a close examination of the United Kingdom’s vulnerability at international law if it implemented the European Union’s lifting of the ban. Much as we are enjoined and have a duty as Ministers, politicians and the Armed Forces to obey international law, there are precedents in certain circumstances where there is an overwhelming humanitarian disaster for acting in the absence of an appropriate Security Council resolution.

In 1991 my predecessors as law officers enunciated the germination of, and indeed blessed, the doctrine of intervention in the absence of a Security Council resolution to provide for a no-fly zone to protect the Kurds and the Marsh Arabs in Iraq. As the Attorney-General, I was faced with a similar impasse in the case of Kosovo, where I had to hone and develop that doctrine and provide what I believed in those particular circumstances was a legal basis for Ministers and the Armed Forces to act. Representing the United Kingdom, I had to defend our stance for five long days in the International Court of Justice at The Hague. It is possible, whatever my views about non-humanitarian intervention at all, that it may have to be prayed in aid in the circumstances of Syria if parliamentary approval is obtained.

I shall set out briefly what I believe are the necessary requirements following Kosovo. First, there has to be convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale requiring immediate and urgent relief. I have no doubt that this is satisfied. Secondly, in all the circumstances there is no practical alternative to the use of force, if lives are to be saved. This is much more difficult; it depends on the action proposed, and judgment has to be exercised. Thirdly, the proposed use of force—in this case, the supply of arms—is necessary and proportionate to the aid proposed, which is the relief of humanitarian need, and is strictly limited in time and scope to that end; that is, it is the minimum necessary to achieve that aim. I argue that the supply of arms could be deemed to come under what might be called the rubric.

The doctrine is not without controversy. Some distinguished academics, perhaps from the comfort of their ivory towers, find the doctrine unacceptable. I respect them. They did not have to face the overwhelming humanitarian disaster that I had to face, or to advise my colleagues. Others take the same view. Having set out what I believe are the legal grounds that might justify acting, given the history of intervention in Afghanistan and Iraq, I would nevertheless counsel against any intervention until we were satisfied that there was very wide acceptance of whatever action we took and we were confident that our actions both were right and would work to bring peace to these long-suffering communities.

Wars used to last for five years; now 10 years, and more, go by very quickly. As a relatively small nation in economic terms, is it in our national interest to embark on such interventions without much broader unanimity across the world?