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I beg a few moments of your Lordships’ time to examine the Government’s assurance that the use of these weapons is lawful. In the December debate, my noble friend Lady Crawley, no doubt on departmental advice, said that,

It would be wrong to let that assurance pass without a moment’s examination. There are international agreements and conventions to protect civilians, going back to the St Petersburg declaration of 1868, the Geneva Convention and The Hague regulations of 1907. Admittedly, the protection that they offer is limited. However, international humanitarian law includes customary law, and customary international law is a living body of doctrine that can develop with changing situations. It has developed as the nature of warfare itself has changed.

When engagements were on an open battlefield, troops employing firearms had no difficulty in targeting combatants because they knew that the cavalry bearing down on them were combatants. It was very unlikely that a civilian would be found within range. To injure civilians, you had to set out deliberately on an expedition away from the battlefield. More recently, as we were reminded in the December debate, and as we have read in the book by Sir Rupert Smith, The Utility of Force, the nature of warfare has changed. It normally takes place now not in deserted countryside, but in towns, among houses and concert halls, and in thoroughfares and side streets.

It is very difficult to guarantee hitting an object of your choice without a serious risk of causing what is sometimes euphemistically called “collateral damage”, particularly when the weapons are frequently delivered from aircraft, as happened in Kosovo. If to that you add scattering your bomblets over a wide and ill defined area and you extend their lethal effects over a substantial period, and even if we accept that the M85 weapons have a failure rate of some 1 per cent—which your Lordships may not accept—a massive number of civilians will be at serious risk of death or fearful injuries, with unexploded weapons waiting to inflict mayhem in the weeks and months ahead. In those circumstances, the use of a weapon that cannot be targeted and which scatters destruction over a wide area cannot avoid a serious risk of inflicting disproportionate casualties on civilians.

The principles of international law that are applicable to that situation were established by the International Court of Justice in its advisory opinion of 1996 on the legality of using nuclear weapons. The court declared, first, that a clear body of international humanitarian law is now independent of specific treaty or convention obligations. States do not have unlimited freedom of choice as to the weapons that they use. Secondly, the court stated that humanitarian law establishes a clear distinction between combatants and non-combatants and that states cannot lawfully employ weapons that are incapable of distinguishing between those categories. Thirdly, the court said that those principles apply to new weapons in the same way as they do to pre-existing ones.

The court considered the argument that nuclear weapons could never be used in accordance with those principles, but it held, by seven votes to seven, on the casting vote of the president, that it could not conclude definitively that nuclear weapons could never be used lawfully in any circumstances. However, the court declared that the use or threat of use of nuclear weapons would generally be contrary to the rules of humanitarian law. I see no distinction in that reasoning between nuclear weapons, which can rarely, if ever, be used without the risk of inflicting major casualties on the civilian population, and cluster bombs.

I do not dissent from the formulation of my noble friend Lady Crawley that cluster bombs are lawful when they are used in compliance with international humanitarian law, but the caveat is that, like nuclear weapons, they can rarely, if ever, be used in compliance with international humanitarian law. It is like giving planning permission for a swimming pool but specifying that people can only use it if they do not get wet. Even leaving aside the need for a convention specifically related to cluster bombs, it is virtually impossible to argue convincingly that their use does not infringe international humanitarian law. I hope that my noble friend on the Front Bench can assure us that the Government will look at that again. But of course it would be better to conclude a specific convention, so that everyone can see plainly to what they are pledging themselves.

In the December debate, there were a number of references to Protocol V of the Convention on Certain Conventional Weapons. My noble friend Lady Crawley announced that the Government intended to accede to it at the earliest opportunity, but I have not been able to trace an announcement that they have done so. Can my noble friend say whether the United Kingdom has now acceded and, if not, what is the difficulty? However, Protocol V relates to the obligations, after the conflict, of those who have used these weapons. What is needed is an obligation on states not to employ these weapons in the first instance. We hope that the UK delegations will play leading roles in Lima and in future gatherings. I wish them well.

Noon

The Lord Bishop of Leicester: My Lords, I am grateful to the noble Lord, Lord Elton, for bringing his account of the Oslo conference to our attention, and for bringing to our attention the uncomfortable, troubling and disturbing facts behind it. I speak today as a lay person on this subject. I speak as one who has been confronted by stories of human lives brought to an end; of children and adults indiscriminately maimed; of land contaminated and unavailable for agriculture or development; and of unimaginable and interminable risks to innocent non-combatants being visited upon sizeable populations of people in Kosovo, in Serbia and Montenegro, in Lebanon, in Iraq and elsewhere. I speak as one deeply troubled that the United Kingdom military is using these M85 weapons in my name. I speak as one who cannot accept the Secretary of State’s claim that:

I cannot accept that statement because I cannot understand what, in the mind of the Secretary of State, legitimates the use of these weapons. Are they legitimated by international law or convention, and does that offer comfort or consolation to the victims—many of them children—who have not been consulted about the legitimacy of dropping these weapons on their communities?

I cannot understand either the significant military value of these weapons in the kind of conflicts in which our Armed Forces are likely to be engaged in the foreseeable future. I cannot accept that the so-called mitigating features—presumably referring to the self destruct mechanism so eloquently described by the noble Lord, Lord Elton—help to legitimise the use of these weapons. The evidence appears to be robust—even overwhelming—that the self-destruct mechanisms are unreliable; that the tests used to evaluate the performance of the weapons are undertaken only in ideal conditions, which do not replicate actual combat conditions; and that the United Kingdom has made no effort to assess the performance of these munitions in combat.

Furthermore, I cannot accept that this argument outweighs what the Secretary of State refers to as the “humanitarian factors”. Can he be referring to the old man in Kosovo who desperately tried to escape as the sky rained down bomblets and blew him and his neighbours to pieces? Can he be referring to the victims who had holes twice the size of a man’s fist blown in their torsos? Can he be referring to children playing innocently in Kosovo who were punished with multiple amputations for their temerity? Can he be referring to the population of Basra, who had 98,000 of these weapons rained on them during the invasion of Iraq? Are these “humanitarian factors” another way of speaking of our brothers and sisters who pay the price for these weapons in their mutilated bodies? They receive no medals; they are not treated as war heroes; they do not have the benefit of military hospitals, but languish for a lifetime of regret that the “mitigating features” failed to work in their case.

The document Fatal Footprint seeks to clarify the impact of these munitions on the lives of people in 23 countries and areas not internationally recognised, which are confirmed to be affected by cluster munitions. This is the first comprehensive study systematically analysing the impact of these weapons on civilian populations through casualty data. As noble Lords may be aware, it concludes that 98 per cent of casualties are civilian; that these munitions are more fatal and involve more injuries than mines or other explosive remnants of war. Not only are civilians most at risk, but the vast majority of civilian casualties occur when people are carrying on their normal daily livelihood activities in their usual and accustomed places.

Further, it is clear from experiences in Afghanistan, Cambodia, Iraq and Vietnam that extensive cluster munitions use generally poses a volatile and generational threat to civilians where clearance efforts are delayed.

It is commonplace these days for all of us to complain that we live in a culture dominated by the requirements of health and safety. Indeed, we live in something of a schizoid culture, in which on the one hand we want to avoid every possible risk to life and limb for ourselves, however small, even often at great personal inconvenience. On the other hand, we are ready to pretend to each other that the risks visited on entirely innocent populations by our own military are somehow acceptable. I speak as a lay person, as I said. I defer to noble and gallant Lords in their greatly superior military, technical and diplomatic expertise in these matters. But I cannot find it possible to come to terms with the argument that these weapons are legitimated militarily, morally or on any other grounds.

In the Christian calendar, today is the feast day of the Ascension of Christ. For those of us in the Christian tradition, it is a day in which our Lord’s kingship over all human affairs, relations and conflicts is celebrated. It is a day on which we are reminded that human beings are to behave towards each other as children of the same heavenly father. It is a day to repent of these weapons, and a day to press on the Government’s representatives as they prepare to go to Lima that we wish them to be in no doubt whatever that, in the view of this House, these weapons are wholly unacceptable.

12.06 pm

Lord Dubs: My Lords, I add my thanks to the noble Lord, Lord Elton, for initiating the debate and for his part in the campaign against these dreadful weapons; I was with him in Oslo. I also thank Landmine Action and Norwegian People’s Aid, which have both been extremely active in providing information and campaigning against these weapons. Pressure clearly works as far as the Government are concerned. I welcome the statement of the Secretary of State, Des Browne—surely encouraged by my noble friend on the Front Bench—that the Government should move on this. If pressure works, then more pressure will clearly go on working, which is why we are here today.

We know the case against cluster bombs and munitions. It is similar to the case against anti-personnel landmines: they are a danger to innocent civilians months and years after the conflict. Children playing, farmers working, people collecting firewood, tending livestock or fetching water: all these most innocent of activities are liable to lead to a loss of limb or life in areas where these weapons are being used. The second argument is that they are relatively indiscriminate weapons when used during a conflict. These days, there are seldom targets with no civilians around. I have seen films, shown at Oslo, where civilians in Serbian streets and towns were maimed as a result of cluster bomblets descending upon them.

We must help to ensure that existing cluster bomblets are cleared. To do that, we must know more about where they have landed. At the Oslo conference, we learnt that in Serbia, where NATO had used cluster bombs, it had not provided the Serbian clearance teams with the co-ordinates of where they had been targeted. Similarly, the Lebanese clearance teams have not been able to obtain the co-ordinates of the Israeli cluster munitions used in the recent conflict in Lebanon. All we can do is ask the Government to press Israel to provide this information on humanitarian grounds. I urge my noble friend to ensure that this happens, a simple step which can be taken. A further tragedy of the recent Lebanon conflict is that both sides used these weapons. Their use by Hezbollah is the first time that a non-governmental organisation has deployed them. All of this strengthens the case for banning them.

On Serbia, I recently asked a question in the House and my noble friend Lady Amos wrote to me with further information on 15 May:

We are talking about 1999, and this is 2007.

NATO is supposed to be a modern, effective organisation, and our motives in the war in Serbia were surely humanitarian. In Oslo, I talked to a man who had lost both legs trying to clear bombs in Serbia, and he emphasised the difficulties. I cannot for the life of me see why NATO cannot get a move on rather than waiting eight years before it is almost ready to provide information that was surely available the moment the cluster bombs were launched.

I shall turn briefly to the argument about smart and dumb cluster munitions, which has already been mentioned, and whether smart bombs are smart enough. It is, of course, a welcome change on the part of the UK Government, but it still means that M85 sub-munitions will be used. The Government have given us various figures—I am not sure which are the authoritative figures—but my right honourable friend Adam Ingram in answer to Questions between 2003 and 2006 mentioned a maximum failure rate of 2 per cent, a failure rate of 1 per cent and a 95 per cent success rate with M85s. I am not sure what a 95 per cent success rate means, unless it means that 5 per cent of them failed. Given the number that have been used in, say, the Lebanon, that represents a large number of people. The tests that have been used to establish the failure rates are undertaken in ideal conditions. They do not take account of different ground surfaces, soft ground or the effect of buildings or trees. We do not yet have the accurate information to allow us to say that smart weapons are smart enough, and, as has already been said, if the self-destruct mechanism does not work, it poses an even greater danger to the brave individuals putting their lives at risk to clear these weapons. They sometimes suffer appalling injuries or die. I have been invited to visit the Lebanon within the next few weeks to see the clearance work on the ground and the effect of the use of such weapons, and I am sorry that I was not able to go before this debate.

My last point is about whether there is any real military justification for these weapons. I am not an expert; I am a lay person. However, I have talked to a lot of people who are experts, some of whom are Members of this House. I think the case for having these weapons is pretty weak. It may have been valid years ago when we were faced with the prospect of large Soviet armies with thousands of men concentrated in small areas, but that is not the nature of the conflict that we now face. I would like better military justification before the Government go ahead and say that smart bombs will continue to be used.

I shall conclude with four brief points. First, we need international agreement. Even if the British Government do what we ask them to do, other countries are still using these weapons, so an international agreement is crucial and I hope that significant progress will be made at the forthcoming conference in Peru. Secondly, we need to ensure that, in all areas where cluster munitions and cluster bombs are being used, proper information is provided about the co-ordinates. Thirdly, all possible help must be given to those countries to enable the weapons to be cleared. Finally, we still need to admit that smart weapons are dangerously dumb.

12.13 pm

Lord Mayhew of Twysden: My Lords, I join in the expressions of gratitude to my noble friend Lord Elton for having chosen this subject for his balloted debate. I also express my diffidence at following the noble Lord, Lord Dubs, who knows much more about this subject than I do, having campaigned with great distinction in this field for so long.

I begin with the general reflection that modern war is such a horrible manifestation of evil that, if we adopt rules to regulate its conduct, it can seem almost as though we are improperly treating it as some kind of game. The laws of cricket may forbid aiming the ball at a batsman as a missile but they still legitimise bowling that produces a bumper with equal lethal potential. That may count as cricket—one should remember that Sir John Major’s recent book is called More Than a Game—but in regulating war, that kind of nice distinction seems rather out of place. We are so far short of having beaten into ploughshares all swords that we have to do what is practical, by piecemeal rules if necessary, to diminish, at least, the horrors of war. Quite good progress has been made. International law has established norms, recited in the debate on this subject in December, on which specific prohibitions have been built over quite a long time.

The noble Baroness, Lady Crawley, in that debate reminded us that:

She added that an attack can take place,

a rather question-begging adjective—

These criteria are conceptual; the rub comes when you try to determine whether a particular military proposal is compliant. In principle this is a matter of law but more immediately it is one of political will.

The noble and learned Lord, Lord Archer of Sandwell, has opened a very interesting discussion on the legality of the use of these weapons. More immediately, the question of use will be decided by political will. Luckily, consensual, political will has shown itself capable of evolving; it does not need to stand still and it tends not to do so for long.

In this context, the thrust of my noble friend Lord Elton’s argument seems to have the great advantage of being intended to benefit primarily civilians, especially their children, who have the misfortune to live and to try to exist where combatants have chosen to indulge their belligerence.

At the very least everyone can agree that children cannot carry any responsibility for war. Yet it is clear from the evidence from recent conflicts all over the world that children have quite disproportionately suffered the consequences of the use of cluster munitions. The reason, so eloquently explained to us, is because they often do not explode; they lie about on the surface. They constitute enticing souvenirs or at least objects of childish curiosity. When picked up they often go off and are so small that they are easily missed in clear-up operations.

None of that is news. We have known about it for a long time. It has been recognised by the nations—I have to admit that I learnt about this only recently—participating in the Oslo conference that have signed up or are prepared to sign up to the treaty we have been told about. Those nations have grown impatient at the lack of progress in the United Nations. Our country is now seeking to exempt from the treaty weapons fitted with a self-destruct device, designed to operate if they do not go off on impact. That has been explained to us with remarkable technical expertise by my noble friend Lord Elton.

It is argued on our behalf that the self-destruct device satisfactorily deals with the problem, with the consequence that weapons can legitimately remain available to our Armed Forces—legitimate in our own consciences. The contrary seems to be the case. The weapon in question is the M85. Since 2002, questions have been asked of the Armed Forces Minister in the other place about the failure rate of this self-destruct device. The answers began in 2003 by citing 2 per cent but by the end of 2006 the figure had grown to 5 per cent. What is today’s estimate? I hope that the Minister can give us the answer.

The M85s we use are purchased from the Israelis. The UN Mine Action Coordinating Centre in south Lebanon estimates that “about 4 million” sub-munitions were dropped there by the Israelis, and it would seem that perhaps as many as 200,000 of these unexploded missiles have been left lying about.

These weapons would have to be capable of producing some enormous military advantage to justify exposing children and other non-combatants to risks on this scale. It would have to be an advantage of a clear war-winning character. But we all know now, or we should do, that it is too soon to cast the balance sheet of wars once the last shot has been fired. That sometimes can prove to be just the end of the beginning. Hearts and minds have to be secured, and I find it hard to imagine an aftermath—short of permanently poisoning their land, for example—more inimical to winning people's hearts and minds than leaving the areas where they live sprinkled with unexploded bomblets.

We already know that the Israelis themselves reckon their campaign in south Lebanon to have been a failure. We have now heard of distinguished and very senior military voices disavowing any net advantage from the use of such weapons. I very much hope that we shall hear that, at the forthcoming conference in Lima, the Government will drop their policy of seeking to exempt the M85 and sign up to the Oslo treaty accordingly.

12.20 pm

Lord Hannay of Chiswick: My Lords, the timeliness of this debate can hardly be questioned. Both the need for and the possibility of banning cluster munitions by international law have moved sharply up the agenda. We are on the eve of the next in a series of international meetings designed to muster support for the negotiation of a legally binding international instrument by next year. Those are the words of the communiqué issued after the most recent such meeting in Oslo in February. It would be good if this House, through today's debate, were to send the strongest possible message of backing to the conference in Lima.

We should pay tribute to the noble Lord, Lord Elton, who has initiated today's debate, and the noble Lord, Lord Dubs, whose Private Member's Bill pointed the way forward, for the example that is being set and the work that is being done. As the chair of the United Nations Association of United Kingdom, I declare an interest, because my organisation is taking part in that campaign.

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