Cluster Munitions (Prohibition) Bill [HL]

My Lords, it is not entirely unheard of for judges to complain, usually in private, that they are sometimes forced to do what the law requires of them rather than what they judge to be right. In other words, law and morality are not always synonymous. In a recent supplementary question, I invited the Minister to comment on the morality, as distinct from the legality, of using cluster munitions. I was very disappointed in the answer that I received. I therefore find myself raising the very same issue in this fuller debate today. Like others, I am extremely grateful to the noble Lord, Lord Dubs, for bringing this matter before us. He and the noble Baroness, Lady Northover, both referred to Jan Egeland, who commented that the use of cluster munitions was utterly immoral. The terms ““immoral”” and ““moral”” are not necessarily easy to define. We can find ourselves in all kinds of trouble if we give the impression that we are seeking the moral high ground. I assure noble Lords that that is not my intention today. The criteria by which we make moral judgments are truly varied. They will include those that we term ““religious””, invoking an external authority; those that are properly termed ““humanist””, implying a consensus among right-thinking people; and, indeed, those that we acknowledge to be ““intuitive”” or ““instinctual””. When it comes to war, and the questions of whether it is to be waged at all and, if so, how, there is in the West a quite remarkable convergence of these criteria—religious, humanist and personal. The coalition of ideas that gathers under the umbrella term ““just war”” has its roots firmly in Christian thought, notably St. Augustine. But these ideas have been refined and developed by many other influences, secular as well as religious, to the point where there is now broad agreement around the reasons why war might be justified—the so-called ius ad bellum—and the manner in which war is to be conducted, ius in bello. For Augustine, participating in war was a last resort but one that could be justified by the moral duty imposed by Christian love: the duty to protect an innocent neighbour from unjust attack. At the same time, Christian love sets definite limits on the violence that can be done to the attacker. It is largely those limits that are the subject of our debate today. The Geneva Convention clearly enshrines the two main principles contained in ius in bello; namely, that, so far as is possible, all non-combatants should be excluded from a theatre of war which could lead to their death or maiming—the so-called ““principle of discrimination””. Secondly, a just war is one that is undertaken without gratuitous destruction; that is, in accordance with the principle of proportionality. For many of us, these principles raise huge moral questions about, for example, the carpet-bombing of Dresden, to say nothing of the holocaust that was Hiroshima. By comparison with such enormous devastation, why are we so bothered by a few unexploded cluster bombs? One answer, which has already been given, is that we are not simply talking about a few. Statistics have already been produced—and other noble Lords will, no doubt, produce others—to show that cluster munitions are a massive problem in areas of recent conflict, and that they not only destroy or maim countless civilian lives, but, just like landmines, render whole swathes of countryside uninhabitable. However, whatever the numbers, the issue of morality is not to be determined solely, or even primarily, by the scale of the problem or the number of unexploded cluster munitions, but by the nature of the weapons themselves, which simply cannot be used in a manner that ensures discrimination. One of the regular obscenities of any war is the death of innocent bystanders, who are written off as ““collateral damage””. Incidentally, it is, perhaps, significant that we always use the term, ““collateral damage”” of the other side, the enemy, and not of our own side. I would find it hard to write off the life of one of my children or my wife in such a cavalier fashion. However, with targeted weaponry such deaths perhaps have to be accepted. The same simply cannot be argued when it comes to weapons that spread like grapeshot and that have very recently been used in areas with a civilian population. The use of napalm in Vietnam was eventually condemned as utterly inhumane, if not illegal, for the very same reason. The effects were indiscriminate, and therefore the principles of discrimination and proportionality were subverted. In medicine, if an apparently effective drug has too many bad side-effects it is withdrawn from circulation. Cluster bombs produce too many bad side-effects. I believe that any society that claims to be civilised should outlaw practices that may at present be legal but that future generations will undoubtedly see as immoral. I am wholeheartedly in favour of the Bill.