New Clause 3 - Defence against unlawful use of force
International Criminal Court Bill [Lords]
9:55 am
Mr Edward Garnier (Harborough, Conservative)
I beg to move, That the clause be read a Second time.
The new clause would create a defence against what would otherwise be an unlawful use of force, or one that was alleged to be unlawful. It would allow a person to defend himself, others or property if it were
``essential for accomplishing a military mission''.
There are many obvious examples of such a thing.
Subsection (2) sets out the defence
``on the balance of probabilities'',
which is, as I think that we would all accept, the test for establishing any defence in criminal law.
Subsection (3) creates a defence
``to any allegation under the ICC statute''
about a person's conduct. The defence of duress from
``a threat of imminent death or . . . imminent serious bodily harm''
is created. Subsection (3)(b) refers to a person acting
``necessarily and reasonably to avoid this threat.''
As Conservative members of the Committee have mentioned before, we are concerned about the conduct of our armed forces, and the new clause has their concerns in mind. It cannot be right to have no defence available that one was defending oneself or others in what the ICC would otherwise judge as an unreasonable use of force.
I am acutely aware of clause 56 of the Bill, of article 31 of the statute of Rome, of section 3 of the Criminal Law Act 1967, and of the common law. Although I am somewhat reassured by existing English law, we must consider the context of the new ICC jurisdiction and the way in which it will touch on prosecution of our own subjects or those who are likely to be tried in English courts under the complementarity rule. I therefore seek reassurance that the Government have those points in mind, and will be able to translate the current state of English criminal law into the new jurisdiction.