Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 264 - 279)



  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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