Cluster Munitions (Prohibition) Bill [HL]

My Lords, I join my noble friend Lord Berkeley in congratulating my noble friend Lord Dubs on finding an opportunity to promote this Bill and an occasion for discussing a topic which troubles many of your Lordships and very many people outside this House. My noble friend made it clear that under the Bill, the United Kingdom would renounce the use of cluster bombs, because to use or possess them would be a criminal offence, as it would be to trade in them. And it would be a unilateral act by this country, because there is not yet a convention or treaty prohibiting their use. In that respect, there is a distinction between this Bill and the Landmines Act 1998 which implements the United Kingdom’s undertakings under the existing Ottawa convention. Of course, most noble Lords participating in the debate hope to see a convention concluded in the near future, but, sadly, that can be initiated only by Governments; for the moment, Parliament has no role to play other than to express approval or disapproval of the actions of Governments. Some of us would like to see Parliament play a more proactive role in negotiating conventions, but that is for the future. Sometimes a unilateral renunciation of a detestable weapon, as the noble Lord, Lord Jay, pointed out, is important not only in augmenting the respect which this country currently enjoys but in encouraging others to follow suit. We sometimes debate the merits of unilateral renunciation of nuclear weapons, but that is very different. It is argued by the Government that to renounce our nuclear deterrent would leave us vulnerable to attack. However that may be—and some of us take a different view—no one can seriously argue that only cluster bombs can deter someone who might wish to attack us. Many of the issues which might otherwise have confused this debate are already foreclosed. It is established in international law and, I am sure, in an international moral consensus, that a state prosecuting a war is not entitled to an unrestrained choice of method. The end does not necessarily justify the means, pace the noble Earl, Lord Attlee, who for the moment is not in his place. Military necessity does not confer a blanket licence. At least since the St Petersburg declaration of 1868, it has been accepted that there are categories of weapon, the use of which is unacceptable. That consensus was reinforced by the Hague convention of 1899 and the conventions relating to specific weapons since the Second World War. Similarly—and perhaps more importantly for the present purpose—there are conventions to protect non-combatants. That protection is not confined to the specific conventions. There has grown up over the past 150 years a body of customary international law generally referred to as international humanitarian law. The argument that cluster bombs are unlawful is not necessarily refuted by pointing out that there is not yet a convention forbidding them. Even were that not so, to say ““There is not a law against it”” is not usually an acceptable excuse. We are here to examine the existing law and, where necessary, to change it. It is now clear, as was pointed out by the noble Lord, Lord Ramsbotham, that the character of war itself has changed, at least since the end of the Cold War. Military operations no longer normally take place on open battlefields with set-piece manoeuvres; more frequently, they are carried out in towns and villages among civilian populations. Tanks proceed up residential streets and are resisted from buildings in the side streets. It is difficult to target a military objective with any weapon without endangering civilians, so cluster bombs stand condemned on two grounds. First, they are liable to injure those who are not and should not be targeted. It is sometimes argued that it is necessary to balance the suffering inflicted against the advantages to be gained—in traditional international law, the doctrine of proportionality. I am not qualified to assess the advantages. I am not sure that the Government are in a position to assess the advantages and disadvantages, since we are told that they have not conducted any study of the subject. But I accept that it could not be right to inflict such harm for a negligible advantage. I have always been a little troubled by the doctrine of proportionality. As the right reverend Prelate the Bishop of Coventry warned us, that might appear to imply that any suffering is justified if the advantage to be gained is sufficient, pace the noble Earl, Lord Attlee. I do not go along with that. It is as though a burglar were to argue, ““It's all right for me to burgle that house because the damage and distress which I cause will be outweighed by the value of the loot which I take away with me””. The second ground on which cluster bombs stand condemned is that their power to injure is not exhausted at the time of impact, as many noble Lords have pointed out. They can kill, maim and ruin lives long after the battle has subsided. We have heard more than once—and before this debate, too—the distinction between smart bombs and dumb bombs. We know, too, as some of your Lordships have said, that smart bombs, like the smart human beings, are not infallible. There are times when smart bombs can act dumb and fail to self-destruct. There are, of course, disputes about what proportion of them fail to self-destruct. In the case of the M85, estimates have varied from between 1 per cent to at least 5 per cent and some, I believe, higher. The problem with statistics is that they conceal as much as they enlighten. Quoting statistics can be a way of saying, ““It's all right because not many people have been injured””. If, as I am told, 78,000 bomblets were used in Kosovo, 1 per cent of 78,000 is the 780. That was 780 deaths and maimings waiting to happen. To the person whose legs are amputated the damage is 100 per cent. But the damage is not confined to individual human tragedies. The death traps left behind, as the noble Lord, Lord Ramsbotham, pointed out, inhibit the rebuilding of homes and the rehabilitation of civilian populations. And they continue to alienate populations when humanitarian organisations are seeking to bring about peace and reconciliation. We saw in the case of landmines how public opinion can build up until it is irresistible. I believe, like my noble friend Lady Whittaker, that it is building up across the globe and that there will be a convention. That is why my heart goes out to my noble friend on the Front Bench—the most compassionate of individuals. When it comes, I am sure that she would like to say with pride, as I would, that my country gave a moral lead.