New Clause 1 - Jurisdiction of the court
International Criminal Court Bill [Lords]
12:00 pm
Mr Edward Garnier (Harborough, Conservative)
My hon. Friend's intervention leads me on to my next point. France's fifth interpretative declaration is as follows:
``The Government of the French Republic declares that the term `military advantage' in article 8, paragraph 2(b)(iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof.''
Article 8.2(b) states:
``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts''
will be ``war crimes'', as will the following in 8.2(b)(iv):
``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''.
No objective tests can be applicable to sub-paragraph (b)(iv) when one has to deal with adjectives such as ``excessive''.
To use an historic example, I am concerned that the modern equivalent of the bombing of the Ruhr or of the Mohne dam by the RAF might, once the ICC is up and running, constitute a serious violation under article 8. If a sensible and just decision is to be taken in relation to an allegation against a war commander—be he a civilian or military leader under article 8(b)(iv)—it will require an exchange of opinion as much as an assessment of fact. I appreciate that any opinion should be based on fact. No wonder the French have issued an interpretative declaration.
Their sixth declaration is:
``The Government of the French Republic declares that a specific area may be considered a `military objective' as referred to in article 8, paragraph 2 (b) as a whole if, by reason of its situation, nature, use, location, total or partial destruction, capture or neutralization, taking into account the circumstances of the moment, it offers a decisive military advantage.''
In our excitement and enthusiasm in ensuring that war criminals are brought to book, we must not lose sight of the fact that war, even in its defensive definition, is a nasty business. People get killed in war. If the United Kingdom, still less France, is attacked, there is no reason why we should not take steps to defend ourselves with considerable brutality. I do not suppose that anyone is denying us the right to respond in kind, but situations—I use that expression in the manner employed by the statute of Rome—will occasionally arise in which all manner of nasty things happen.
As I said, I am concerned that unless we, like the French, are sufficiently confident to issue interpretative declarations, our military capability will be hamstrung, and I am not sure that that is this Government's intention. I fully accept their motives in wanting to get the Bill on the statute book as quickly as possible, and in wanting to become one of the first 60 ratifiers of the statute of Rome. We have been in Committee for some time and the Bill has been round the course in the other place. I am concerned that, in their altogether laudable desire to achieve their ends, the Government are mindless—in the sense of unwitting—of the fact that we cannot enact the Bill or adhere to the statute of Rome in a vacuum.