Examination of Witnesses (Questions 264
- 279)
TUESDAY 8 JUNE 2004
PROFESSOR PHILIPPE
SANDS, QC AND
MR DANIEL
BETHLEHEM, QC
Chairman: The Committee now moves on
to the second part of this afternoon's session dealing with international
law and pre-emptive military action. It is my pleasant duty to
welcome you, Professor Philippe Sands, and Mr Daniel Bethlehem,
both eminent lawyers, to help us in that consideration.
Q264 Mr Illsley: The initial question
relates to existing international, legal cases and the guidance
we can gain from them for the legality of pre-emptive military
action. I would like to ask initially whether those longstanding,
international cases still hold good or whether, in the light of
comments from various international figures on the new immediacy
of threats, particularly from international terrorism, from weapons
of mass destruction, those cases are no longer relevant and whether
we need to review the whole aspect of international law around
the theory of pre-emptive self-defence. I know that you perhaps
have different theories on this in light of your papers but could
you give us your views on that question first?
Mr Bethlehem: It is a great honour
to be invited to give evidence before you today. You will have
seen in my memorandum, at paragraphs 16 and 17, that I deal with
the question of, in particular, judgments of the International
Court of Justice. There are very few judgments of international
tribunals that deal with the question of use of force. There is
one going back to 1949 in which the United Kingdom was involved,
which addressed certain events in the Corfu Channel. There was
an advisory opinion in the mid-1990s that dealt with the threat
or use of nuclear weapons, which set out the law in this area
generally and there have been a number of other cases. First of
all, Nicaragua v The United States in the mid-1980s and,
second, a more recent decision of the International Court of Justice
in November last year which addressed certain issues between the
United States and Iran. Against that background, my view is that
there has been an inclination on the part of the International
Court, perhaps for very good reasons, to draw the law too narrowly.
My concern is that, when we begin to look at the kinds of threats
with which the Committee is concerned, the law as described is
perhaps not going to be quite so helpful. That is for a number
of reasons. First of all, because the Court has been concerned
to circumscribe the right of self-defence and to narrow it as
much as possible, perhaps for laudable reasons but certainly with
repercussions. In doing so, it has caused to be read out of practice
responses to certain types of events—for example, responses
to an accumulation of a whole series of attacks. My suggestion
is that we do need to look again at the law as it has emerged
from the jurisprudence of the International Court of Justice with
a view to seeing whether it is appropriate to current threats.
Professor Sands: I am not going
to focus so much on the jurisprudence, which has been summarised
very properly by Mr Bethlehem. It is plain that the circumstances
in which we now find ourselves, in which in particular weapons
of mass destruction are capable of being proliferated and in which
non-state actors, NGOs and terrorist organisations can potentially
get hold of such weaponry, is a significant change of factual
circumstance; but the rules of international law, as I have tried
to set out in my paper, are flexible. The basic rules relating
to the use of force, whether self-defence or collective security,
and the emerging principle of the right for humanitarian intervention
are flexible enough to take into account these new circumstances.
What I have tried to do in my paper is to illustrate by reference
to recent events—particularly in Iraq but also Afghanistan
and Kosovo—that it is possible for the rules to be interpreted
and applied properly, in a manner which accommodates those changed
circumstances. Specifically, the point that I make is that it
is not appropriate to claim that recent circumstances require
us to conclude that the existing system does not work and that
we have to start again from scratch. I do not think that is reflective
of the reality. To the extent that the Prime Minister's important
speech at Sedgefield makes that suggestion, I think it takes us
in the wrong direction and distracts us. The key issue in my view
is to ensure that the processes of decision making are sound and
proper, that the circumstance in which a state feels free to exercise
self-defence is based on proper decision making, proper information,
proper intelligence and similarly, in relation to Security Council
resolutions, that they are interpreted, construed and applied
in an appropriate way. I am not for a moment saying that the rules
of international law are perfect. Absolutely not. The last 60
years make it abundantly clear that that is not the case. I do
not think recent events require us to throw the whole lot out,
or to reconceive the whole thing. What we have to be very careful
about is looking at the three bases for the use of force and consider,
on a case by case basis, whether they apply or not.
Q265 Mr Illsley: We have had this
argument, particularly recently, as to whether the quality of
our intelligence and the quality of the decision making based
on that intelligence was sufficiently thorough to justify military
action. Professor Sands, what you are saying is that, if a government
acted in good faith on the information it had before it which
represented to it that there was an immediate threat, pre-emptive
action would be justified, even though in subsequent months that
threat was found to be non-existent. You are saying that international
law is adequate enough to deal with that and that government would
be found not guilty on the basis that they acted in good faith.
Would that be fair to conclude from your remarks?
Professor Sands: The use of the
word "pre-emptive" makes me a little uncomfortable.
Where there is broad agreement amongst international lawyers is
that the existing rules of international law permit the use of
force in what is known as anticipatory self-defence. That is to
say, before an attack has actually occurred. The key question—I
think we are in agreement on this—is defining the circumstance
of imminence. The circumstance of imminence was put by the Attorney
General, I think correctly, in the statement he made in the House
of Lords in April, as being related to an issue of remoteness.
To what extent do the facts as identified give rise to a credible
threat such as to permit an immediate response? I have dealt in
my paper with the situation in which evidence emerges that a private,
non-state group, a terrorist organisation, with an avowed commitment
to use force (say against the United Kingdom) using weapons of
mass destruction, and credible information emerges that that group
is in the process of acquiring the final component, or even an
early component. Plainly the rules of international law permit
a state, in an exercise of self-defence, to protect itself. Everything
turns on the credibility of the information. That is the important
point in the process. What has concerned me about the direction
which has been taken is that this aspect is not addressed in the
Prime Minister's speech. That is the issue that I think determines
whether the rules work and work effectively.
Mr Bethlehem: I agree entirely
with Professor Sands's emphasis on the credibility of the evidence.
I think that is immensely important from whatever spectrum of
the law one approaches this. I would come back to what I see as
a problem with the law and perhaps it is emphasised by an extract
I quoted from the judgment of the International Court in the recent
Oil Platforms Case, where the Court indicated quite clearly
that there was no margin of appreciation to States. It is not
a question whether States are acting in good faith: whether they
have tried to discover the information. It is simply a question
whether there is an objective threat. I do read that as a problematical
statement for current times.
Q266 Mr Illsley: Does the war in
Iraq change the legal framework for military action? I know that
both of you in your documents have to some extent suggested that
the situation in Iraq is unique and perhaps does not change anything
and should not affect the law, but would you like to expand on
that?
Professor Sands: In the paper,
I go through the three possible arguments that could be made.
I read very carefully this Committee's report, which I thought
was an extremely useful briefing document, as well as the exchanges
with Professors Greenwood and Brownlie. I noted that someone right
at the end suggested that it is terribly important as to which
professor you choose to get your advice from. That was a rather
prescient comment. Humanitarian intervention was never invoked
in the context of Iraq and plainly would not have been justifiable,
even if one accepts that as a basis in existing international
law. There was not as of March 2003 a massive, fundamental threat
to the fundamental human rights such as to permit that argument.
Self-defence was not argued either. I do not think it could have
been argued, and I think that is essentially conceded by the Attorney
General in his statement last April, and also by the Prime Minister
in his speech. There was no imminent threat against the United
Kingdom as of March 2003. What that takes us to is the argument
that is made that somehow the Security Council authorised the
use of force in Resolution 1441. I have set out in my paper—and
will not rehearse again—my reason why I think that argument
is fundamentally misconceived and why most independent commentators
and the vast majority of states consider it to be fundamentally
misconceived. The central point is that international law and
the rules of the United Nations do not allow one or two members
of the United Nations to determine for themselves in what circumstances
force can be used to enforce Security Council resolutions. One
can imagine other situations. We listened to your two previous
speakers. There are examples in Israel and the Middle East at
the moment of Security Council resolutions not being followed.
Is one state entitled to interpret what the Security Council has
done and say, "We may now use force"? I heard your question.
Once we go down that route, we are in extremely dangerous territory.
In simple terms, the answer to your question is no. In a real
sense, Iraq is a bad case on which to hang a claim to revisit
the fundamental rules of international law. I agree entirely with
Mr Bethlehem that there are other cases where plainly the rules
of international law are wanting and we need to revisit them.
Q267 Mr Illsley: You do not consider,
as we were told here on occasions by ministers, that an immediate
threat to the region gives a right to anticipatory self-defence?
In other words, if Iraq was looked upon as a threat to Israel
or surrounding countries in the Middle East, would that justify
military action?
Professor Sands: It could in certain
circumstances, depending on the pattern of treaty or other arrangements
between the state and the region and the United States and the
United Kingdom. NATO is constructed on the principle that an attack
on one Member State (or an imminent threat against one Member
State) constitutes an attack or a threat against all Member States.
In principle, that could have applied But again, I do not think
it appears that the evidence, as of March 2003, was such that
Iraq posed an imminent threat to any other countries in the region.
Mr Bethlehem: Did Iraq promise
a change or raise questions necessitating a change? I think the
answer is yes in some respects and no in others. Iraq has been
a rather important watershed in respect of questions relating
to the efficacy of the United Nations and a review of the institutional
structures of the United Nations. In that respect, I think Iraq
has been immensely important. I think Iraq has also been important
because it has put before us very squarely the question of the
evidence that we rely upon. This Committee has looked at questions
of military intelligence and other evidence before. I think that
has been brought to the table by Iraq. On the question of the
law more generally, no, I do not think Iraq has put into play
issues of international law which have not been in play before.
I think these have been issues that have been in place since 1949
or 1945. It does not change the issues that are in play. But certainly
the events of the last few years have made it very much more urgent
that we arrive at answers, or at least that we embark upon the
road to those answers.
Q268 Mr Illsley: Does the UN Charter
still provide a viable legal framework and do we need to refine
it in view of the new realities and the new threats? Does the
international community need to develop criteria for the Security
Council to advise it when making decisions in relation to humanitarian
disasters and so on?
Professor Sands: On the first
question, yes, the UN Charter remains a viable framework, interpreted
in accordance with new situations. Two, in relation to criteria,
Mr Bethlehem touches on this in relation to the issue of imminence
although not so much humanitarian crisis. There is an effort to
do that now. There are various initiatives within the UN. The
Canadian Government has set up an initiative. Both are extremely
useful. In answer to that question, yes, it would be useful for
the international community and for states—and perhaps for
this Committee—to recommend that further efforts be undertaken
to seek to develop a consensus on these issues. That said, one
has to recognise that ultimately, particularly when it comes to
the use of force in relation to self-defence, it is going to turn
on issues of information and intelligence, which states are not
going to be willing to share with other states for very sensible
reasons.
Mr Bethlehem: I agree with that.
I do not think anyone is proposing that we reconceive the UN Charter.
That having been said, I think it is quite clear and widely accepted
in many quarters that the workings of the United Nations really
do have to be looked at specifically in this context. The Secretary
General has recently appointed an eminent panel and they are due
to report later this year, I believe. One of the big issues that
they are asked to address is precisely the working of the Security
Council.
Q269 Sir John Stanley: You referred
to the fact that the world had changed, I think rightly so. We
are in a situation in which the world is facing a quite different
level of threat from people who are in some cases invisible and
extremely difficult to detect. I suspect that the scenario that
lay behind the Prime Minister's speech on 5 March was something
like this: somewhere out there in the world firm intelligence
is received that a particular party, which might be a very dangerous
and aggressive state but is probably more likely to be a terrorist
organisation, is believed to be in possession of weapons of mass
destruction or able to get manufacturing capacity to produce weapons
of mass destruction. Those weapons of mass destruction are there.
The target for them is unknown and therefore the self-defence
ground in international law does not apply but that party is simply
too dangerous to be allowed to have weapons of mass destruction
or access to weapons of mass destruction. The question the Prime
Minister posed, I think rightly, is whether we need to push out
the boundaries of international law as far as pre-emptive action
in those circumstances is concerned. I would like to ask you both:
against that scenario, do you think we should do so?
Mr Bethlehem: Yes, and I have
said so quite expressly in my memorandum. I think there are circumstances
in which we can conceive of a threat of catastrophic action where
the boundaries of anticipatory self-defence need to be pushed
out. I am concerned that the language of imminence, as traditionally
interpreted, is rather too narrow and it is construed in a temporal
context only rather than in the context of the harm that is likely
to occur. In circumstances in which the scenario you paint might
arise, we need to look at the law again. Perhaps I could meet
your example with another. If there was intelligence of a meeting
of the hijackers of the 11 September aircraft on 1 September in
Afghanistan, would the law have permitted pre-emptive, anticipatory
action to have been taken then? My concern is that in that scenario
we are in an area of uncertainty and I think we need to clarify
that uncertainty so that action can be taken. Again, I come back
to Professor Sands's comment that it does depend on the credibility
of the evidence.
Professor Sands: I broadly agree
with that approach, save that I would finesse it in this way:
in my opinion, existing rules of international law are adequate
to deal with that scenario. In the case that Mr Bethlehem has
posited, in my view, there is a perfectly decent argument to be
made that the use of force would have been justified in those
circumstances under the present rules of international law. The
point of convergence is that this does not turn, I fear, so much
on the interpretation of the rules. They are there. They are sufficiently
flexible to be applied to deal with those circumstances. It really
turns on the credibility of the information, the credibility of
the intelligence. The main thrust of my paper is to express a
real concern that events over the past year have undermined that
credibility at two levels. They have undermined credibility in
relation to the public, which plainly appears to have concerns
about the information side. And perhaps more seriously it has
undermined credibility amongst states. I do a lot of work for
many countries around the world, so I know that the United Kingdom
has a really esteemed position at the intersection of relations
with the United States, Europe and the Commonwealth. It is a rather
unique position. It is and has always been respected for exercising
judgment on issues of this kind. My fear is that over the past
year serious damage has been done to the credibility of the country
in relation to factual and intelligence issues and in relation
to the sorts of legal arguments that the British Government has
been willing to associate itself with.
Q270 Sir John Stanley: The difference
between the two of you is that you are saying, unlike Mr Bethlehem,
that in your view present international law, particularly the
application of the right of self-defence, would apply in circumstances
where a WMD capability is firmly believed to be there based on
intelligence, even though the party that is going to take pre-emptive
action cannot demonstrate any direct threat to itself.
Professor Sands: The issue turns
on the question of direct threat to itself.
Q271 Sir John Stanley: That is the
key point.
Professor Sands: A state is entitled
to exercise anticipatory self-defence in relation to its territory
and its population and, in response to a question earlier, in
relation to those friends and allies with whom it has arrangements.
Under the present state of international law, one state cannot
exercise the right of anticipatory self-defence to protect the
interests of a third state with which it has no legal obligation
or right to act. In relation to the situation that Mr Bethlehem
described, I think international law is flexible and permits an
appropriate response in those circumstances.
Q272 Chairman: Gentlemen, you have
spoken about the quality of intelligence as being very relevant.
That quality is very much in the eye of the beholder. In the case
of Iraq, for example, not only the CIA and our own intelligence
agencies but the French and the Germans agreed that there were
weapons of mass destruction there. Does that alter the position?
If you were in a position of taking a decision at the relevant
time, you, as non-professionals, would have had to accept the
quality of that evidence.
Professor Sands: This takes us
into an area beyond my expertise. I can only answer that question
as a member of the public. I read all of the documents at the
time and frankly I was not persuaded that the evidence as it existed
. . .
Q273 Chairman: With respect, you
are an amateur in respect of that. You cannot comment from your
professional viewpoint on the quality of intelligence. On the
question of imminence, in 1981 Israel saw Iraq developing a nuclear
reactor which would have produced highly enriched uranium. Presumably
the international community attacked Israel then because it was
believed that it was not sufficiently imminent. Now, with the
development of law, would there be a different view?
Professor Sands: Over the past
few days, we have been discussing precisely that case, the attack
on the Osirak reactor. It appears with the benefit of hindsight
that there may be arguments that could have been made that the
attack was justified, but of course the difficulty that we face
is that friends and allies change. In 1981, the then government
of Iraq under President Hussein was perceived to be a useful and
friendly government to certain countries, which subsequently took
a different view. I think applying the Attorney General's test
of remoteness—which is the right test—it could not
be said, as the facts were in 1981, that Iraq posed an imminent
threat to its neighbours or to the United Kingdom.
Q274 Chairman: There would come a
point along the continuum where the imminence would become a potentially
decisive factor and therefore you would agree there would be a
legal basis?
Professor Sands: Yes, I would
agree.
Q275 Chairman: Is that agreed?
Mr Bethlehem: I would go further
than Professor Sands. My view—I think it emerges from my
paper and I deal with the Osirak reactor case head on—is
that a very good case was made then, although it was not accepted,
for the legality of the attack. It is not simply a question of
the temporal dimension and imminence and how close it was to weapons
being produced. It was also the consequences of when an attack
to neutralise the reactor might have been made. As I recall, the
Israelis at that stage said this was the point at which they could
undertake action with the least amount of—what is the euphemism?—collateral
damage. In those circumstances a very good case could have been
made and there are certainly very many who are reassessing that
now.
Q276 Chairman: On that basis, would
you be persuaded?
Professor Sands: I want to come
back with a related point. I do not think I would be persuaded
but I would come back with this related point, that I allude to
in my paper but do not elaborate because it is outside the terms
of reference. I am not sure that you can address these issues
of self-defence and the use of force against nuclear reactors
in a narrow context. You have to take them in the broader context
of the rules of international law which allow trade and international
movements in certain products, chemicals, nuclear material, and
look at the use of force rules as part of that broader context.
If we are going to address the issue that plainly exists, I think
we all agree, in relation to new threats, it is not good enough
just looking at the rules of international law to deal with the
use of force once the threat has arisen. We have to look at the
whole multilateral framework, whether it is the International
Atomic Energy Agency or other international rules and conventions,
which ensures that there are appropriate safeguards to stop this
type of material floating around. The two go hand in hand.
Q277 Chairman: I think that one of
you said, "Are one or two states entitled to interpret what
the United Nations Security Council decides?". If 14 of the
UN Security Council agreed one thing and one of the permanent
five decided to veto, possibly for capricious reasons, would that
nevertheless still give authority to proceed in international
law, or should it?
Professor Sands: No, it would
not. We have constructed a system—coming back to one of
your earlier questions—in which, right or wrong, we have
five states that are permanent members. If one exercises a veto,
that is the end of the matter. I would like to say very clearly
that the suggestion that was made by the Prime Minister in the
run-up to the war in March 2003—that somehow the United
Kingdom would be entitled to override an unreasonable veto, as
it was put—is really unacceptable. Once we go down that
route, the door really is open to certain countries using force
in very dangerous circumstances.
Q278 Chairman: But is there not a
danger in your thesis of rather sanctifying the UN Security Council?
You recall that, shortly before the Kosovo intervention, China
said that it would not agree to the renewal of the mandate of
the UN force in Macedonia, for the wholly capricious reason that
Macedonia had recognised Taiwan. If on that basis the UN Security
Council was not able to act, and the international community therefore
not able to prevent a massacre, would not the international law
be an ass if it could not respond in those circumstances?
Professor Sands: With respect,
I think that it is terribly important to distinguish between the
different legal bases for use of force. Humanitarian intervention,
a grey area—but many people are now beginning to accept
that is justifiable. In those circumstances it does not matter
what the Security Council does. If there is an overriding threat
to fundamental human rights on a massive scale then, irrespective
of what the Security Council does, one state or a group of states
may claim to be free to act.
Q279 Chairman: You do not accept
that yet. You do not accept that international law has moved sufficiently
to encompass intervention for humanitarian aims?
Professor Sands: My personal view
is very much moving towards the view that the circumstances of
Kosovo do not pose a problem in existing rules of international
law; but that is a different issue from a situation in which you
are faced with collective self-defence, Security Council authorisation,
and a permanent member exercises its veto. In those circumstances,
once the veto is exercised, it is the end of the matter. You then
have to look to the two other reasons: either self-defence or,
possibly, humanitarian intervention. But collective security is
out.
Mr Bethlehem: Let me move away
from the particular to the abstract of the question. I think that
there are many instances in which the burden of interpreting Security
Council resolutions and acting in pursuit of them is borne more
heavily by one state or by some states than others. In fact, the
UN Charter envisages this. If I recall correctly, Articles 48
and 49 envisage an unequal burden. So I think that, in the particular
issue, one would have to take account of the circumstances and
assess whether it is a capricious vote within the Security Council.
Of course, the United Nations' Charter system does contemplate
a circumstance in which the Security Council is unable to act
on the basis of the Uniting for Peace Resolution, where matters
go back to the General Assembly. For myself, I have to say that
that becomes more problematic rather than less so when we are
dealing with the use of force, because I do not think that there
is a sense of non-partisan treatment of these issues in the General
Assembly. As a concluding comment on this point, I draw your attention
to a document, which I think you have considered before and certainly
Professor Sands has mentioned in his paper, the Responsibility
to Protect proposal, published by the Canadians in 2001. That
deals with humanitarian intervention and says very squarely that
the issues relating to humanitarian intervention should rest with
the Security Council, and that the Security Council should, when
acquitting its responsibility, bear in mind that, if it does not
do so, States may be pushed into unilateral action. I think that
the same goes in the area of self-defence.
Chairman: I am obliged, gentlemen. You
have been very helpful. Thank you very much.
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