Cluster Munitions (Prohibition) Bill [HL]

My Lords, I add my congratulations to the noble Lord, Lord Dubs, on giving us the opportunity to debate this Bill. I trust that, given the almost unanimous support for the Bill in this debate, it will go into Committee and be taken seriously. We have heard speeches from noble Lords with a wide range of experience. I single out the military experience of the noble Lord, Lord Ramsbotham, and the diplomatic experience of the noble Lord, Lord Jay, as providing an important dimension to the debate. I have taken a close interest for a number of years in the question of the appropriateness of weapons that depend on cluster munitions for their effect. As noble Lords have shown as they have thrown the various statistics around, we have, sadly, been gaining much more data about their effect, particularly in many of the conflicts over the past 15 years. As the noble Baroness, Lady Turner, said, Kosovo in 1999 was effectively an air campaign with the widespread use of cluster bombs. In Afghanistan in 2001, in Iraq in 1991 and 2003 and in Lebanon in 2006, a large number of unexploded submunitions have caused injury and death to civilians long after the battle has finished. I take very seriously the words of the noble Earl, Lord Attlee. He is, after all, among your Lordships today the person with the most recent experience of the battlefield. He said, rightly, that there is no such thing as a nice weapon. By their nature, weapons are not nice. However, I assume that, just like other members of the British military, of which I was once a member, he accepts that there are certain classes of weapons that are appropriately prohibited from warfare, whatever their military utility. The right reverend Prelates the Bishops of Salisbury and of Coventry reminded us of that moral dimension and the need to align what is legal with what is right. We have accepted that in the international community. As the noble Lord, Lord Archer of Sandwell, said, we have done that for 140 years, since the St Petersburg international military convention of 1868 laid down that, "““the necessities of war ought to yield to the requirements of humanity””." Since then, we have banned many types of weapons, despite the fact that they are probably very useful to have. We do not use them because their effects are both inhumane and disproportionate. Thus, there are bans on biological and chemical weapons, which we all accept. Perhaps we forget the much older ban on exploding bullets in 1868, the ban on expanding dum-dum bullets just before the turn of the century, the prohibition on weapons that contain shrapnel that is undetectable by X-rays, the prohibition of laser blinding weapons and, in 1997, the prohibition of anti-personnel landmines. The question for me, therefore, is whether cluster munitions, or a subset of them, fall into a similar category of weapon that merits banning. If they do, then the military utility argument no longer holds, although I will address that issue. We also need to keep in mind that we are making the argument to ban cluster bombs for two different reasons, which we need to put together. There is the question of the direct effect of the weapon: is it disproportionate in the way that it acts and does it cause too much collateral damage? There are also the longer-term consequences of the weapon, which is a separate problem. One can combine those issues in considering whether these are inappropriate weapons. The noble Lord, Lord Ramsbotham, reminded us that many of the weapons that we are talking about were conceived in the days of the Cold War, when he and I used to look at weapons in a different way from perhaps how they are looked at in the post-Cold War era. Then, we were thinking of an anti-armour weapon, such as the BL755 against mile after mile of Red Army tanks that may have progressed forward. That weapon was, effectively, a 1,000 pound bomb with 147 fragmentation armour-piercing bomblets. Once deployed, the bomblets would disperse and, because the bomb would be going forward, the bomblets would go forwards and land in an elliptical pattern. The size and the shape of that pattern were difficult to predict, because they depended on the speed and the angle of the aircraft dropping the canister, the height at which the canister opened and the effects of wind. There were lots of uncertainties. The higher you were when you launched the weapon, the bigger the pattern. It is normally at least several hundred metres long, however—a big area in which 147 fragmentation armour-piercing bomblets are randomly dispersed. Whatever else they may be, cluster bombs are area weapons. We have heard from many noble Lords that not all the bomblets will detonate on landing. That is understandable: sometimes they are too low to arm before they hit the ground; some of the parachutes get caught in trees; some strike the soft ground, as we have heard; and some just fail because, on occasion, military equipment does just fail. From a military perspective, there is also the problem that, because you have lots of little bombs in a big canister like an ordinary bomb, none of them can be that powerful. They are smaller than if you were dropping a 1,000 pound bomb. You have a random spread, which means that you must have your targets close together to have much hope of achieving a good military effect. Most of the bomblets tend to miss the target, which is another reason why they are scattered around. There is also the problem of the unexploded ones. The noble Lord, Lord Dubs, cited the Kosovo assessment of the 530 UK cluster bombs dropped producing 78,000 little bomblets. These assessments are generally made with the most optimistic of assumptions. The weapons might have disabled up to 30 pieces of military equipment—not tanks or armour, but what are called ““pieces of military equipment””. That is a pretty low rate of return for a military weapon. These weapons are much more use against soft-skinned vehicles or troop concentrations—that is one argument that is made. We have also heard from many noble Lords that they should not be used in urban areas, yet most of the operations in which we now find ourselves have an urban dimension. As the world becomes more urbanised, that problem gets worse. Because this is an area weapon, if it is used in urban areas, where there are lots of civilians, it is bound to cause disproportionate direct civilian casualties. If you were to make a case merely on the direct effect, you would have to be absolutely confident that you were able to control targeting policies so that the weapons were used only against military targets and not places with possible concentrations of civilians. As we have seen, this is impossible to police. On direct effects, the military utility is not terribly high and there is the difficulty of controlling these weapons so as to not cause disproportionate damage to civilians. I have no problem with saying that one could make a case just on the basis of direct military effect that it is time for these weapons to go. As most noble Lords have said, however, the real problem is the consequential long-term effects of unexploded munitions, which potentially lie around for years. That case for a ban is much stronger. In the past, the Government have made the case—I think that they have now stopped—that although they are sowing what amount to anti-personnel mines, that was not the intention when the bomb was dropped and is therefore different from setting deliberate anti-personnel mines. That case cannot be sustained. We know that there will be a percentage of unexploded munitions and we must accept responsibility for them. We know that the victims are likely to be civilians and we know that children are particularly vulnerable, as many noble Lords have said. As the noble Lord, Lord Ramsbotham, reminded us, however, one of the big problems is not just for the civilians, but for our own troops. As they go through what are effectively unplotted minefields or are de-mining—it is difficult to clear these sorts of submunitions—they get damaged. We lose our own troops as well as civilians and children. Unexploded ordnance is not a new problem. We must remember that there are failure rates, whatever weapon we are talking about. We still find live bombs left over from World War II, but we are now talking about a different scale of problem. The odd bomb that did not explode was one bomb for every bomb dropped; in this case, we are talking about hundreds of bomblets for every bomb dropped. The question is whether we should treat weapons with submunitions differently. It is a question of scale and risk. Noble Lords have been throwing around a lot of statistics on the percentage rate of failure and unexploded ordnance. For what we now call ““dumb”” cluster munitions, Governments and manufacturers tend to claim a failure rate of 5 per cent. The sales brochure figure appears over-optimistic compared to the data in reality. That is understandable; the sales brochure figures are compiled under carefully controlled test circumstances. When you are dropping a bomb or firing artillery in real operational circumstances, you tend to get a higher failure rate.