Mr Gerald Howarth (Aldershot, Conservative)

I beg to move amendment No. 31, in page 72, line 13, leave out subsection (i).

Mr Frank Cook (Stockton North, Labour)

With this it will be convenient to take the following amendments: No. 32, in page 72, line 16, leave out subsection (ii).

No. 33, in page 72, line 24, leave out subsection (iv).

No. 34, in page 72, line 30, leave out subsection (v).

No. 35, in page 73, line 24, leave out subsection (xxi).

Mr Gerald Howarth (Aldershot, Conservative)

Schedule 8 incorporates into English law the crimes set out in articles 6 to 8 of the statute of Rome. Some of those crimes have already been taken from the Geneva conventions, and I understand that some of them have already been incorporated into United Kingdom—I should perhaps say ``English''—law.

I hope that the Committee understands that the amendments have a variety of objectives. On the face of it, no one could possibly condone any of the crimes set out in the articles—some of the most heinous crimes ever committed. Many were ostensibly committed during the second world war, but we have seen elements of those crimes more recently in Sierra Leone and in the Balkans where British troops have been deployed to try to restore order.

I spoke to the commanding officer of the 1st Battalion Parachute Regiment, Colonel Gibson, when he returned from Sierra Leone, and he told me of the sense of anger that he and his fellow members of the regiment felt. He said, ``The atrocities that we saw committed by the terrorists in Sierra Leone made our blood boil.'' Children with their arms and other limbs mutilated and other such atrocities gave them a real sense of purpose in the mission that they had been called upon to carry out on behalf of the British people and the Government. As the Committee knows, one member of the Special Air Service died in that operation, so it was not without risk, or, indeed, loss of life. It was made clear to me that they felt a strong sense of purpose in seeking to put right the injustices that had been wreaked on the civilian population of Sierra Leone.

In no sense do I resile from the horror of the atrocities listed, but some of the amendments are designed to be probing amendments while others are designed to extract a response from the Government to deal with the real concerns that have been expressed by senior military officers. The Committee will be pleased to hear that I will not rehearse the arguments again or regurgitate quotes from senior officers that have been heard extensively in Committee. The Committee knows that real concerns have been expressed, as I explained to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). A senior Army officer who recently retired told me of his concern that the measure could hobble our troops—those going into battle to try to put right some of the ills that afflict the world.

Some of the arguments that I wish to deploy in favour of the amendments were rehearsed earlier when we debated new clause 1. At the end of my contribution, I said that

``we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.''

I entirely accept what the Minister said in response:

``We shall continue to emphasise that we are determined to ensure that our armed forces are protected properly under law.''—[Official Report, Standing Committee D, 1 May 2001; c. 247-48.]

I do not suggest that the Government do not fully subscribe to that view, but they have not taken on board the potential scenario that we have tried to present. Many years hence—perhaps decades—when the Bill is passed by Parliament and is on the statute books of English law, there may be cases that we try or refuse to try, should we decide on balance that there is no case to answer. It would then be open for the court to say that we were shielding people—who knows how the courts will interpret the question of shielding. We could be accused of shielding military personnel , such as infantry involved in a particular action, or, more likely, those engaged in the delivery of weapons that are capable of inflicting massive destruction—and, in that regard, I am thinking particularly of our Royal Air Force pilots, but sailors serving on ships that fire long-range missiles are another example.

Mr Crispin Blunt (Reigate, Conservative)

As is the Royal Artillery.

Mr Gerald Howarth (Aldershot, Conservative)

Yes, the Royal Artillery, too, is capable of inflicting great damage.

With regard to those examples, who can say whether a future court, the composition of which we cannot foresee, might judge that the British Government had not carried out its duties under the statute. It might feel—or the international community, as it is called, might feel—that we were shielding people, and that they had not been brought properly to account, or that their cases had been inadequately considered.

I am not claiming that the court as it is envisaged now would be likely to reach such conclusions, but Ministers must answer the concerns raised by me, several of my party colleagues and many other people with regard to what might happen in certain circumstances. The general public's understanding of such crimes has moved on, and I will refer later to the bombing of Dresden, because it is important to consider potential scenarios.

I take as my first example the sinking of the Belgrano, which cost 300 lives. There was a dispute at the time, and there was also a dispute afterwards, which was notably orchestrated—or articulated might be a better word—by the hon. Member for Linlithgow (Mr. Dalyell). It was claimed that HMS Conqueror had acted improperly in torpedoing the Belgrano. The hon. Gentleman and others suggested that the Belgrano was steaming away from the Falklands, and that it was sunk because the British Government wished to torpedo potential peace talks. I cite that example because it illustrates that there could be different views about what might constitute some of the crimes that are set out in the schedule. If the Belgrano was steaming away and offering no threat, was it justified that it was sunk and 300 Argentine lives were lost?

I have had the benefit of consulting a small publication that is available at the Library. I wish to make a small plug for the Library at this point—it does a fantastic job for all of us in the House of Commons and it is a wonderful resource. It provided me with the most recent book on the Falklands war, which is a slim volume by Michael Parsons. On page 61, he states

``There is, however, little evidence that the proposals put forward by President Belaunde were acceptable to the Argentine junta. Nor is there any conclusive evidence that the British War Cabinet knew about them in any detail before the General Belgrano was attacked.''

If it were a matter of international dispute whether the British Government knew in advance that the Belgrano was steaming away and offered no threat, there is a clear possibility that, although a British court could decide that it was wholly improper to bring charges against the captain of HMS Conqueror, the ICC might, conceivably, take a different view. Where do we stand then? All our arguments about delivery, warrants and so on therefore become pertinent, as we would be obliged to deliver up the captain of HMS Conqueror if the court felt that he had committed a war crime. I accept the point that the Belgrano was clearly a military target, but I invite the Solicitor-General and the Minister of State to cast their minds forward and think about how a court in future might consider such matters? If, in future, attacking a military target when it is offering no threat and is steaming away is a crime, our military forces will be called on to exercise such restraint as to add considerably and in an unjustified fashion to the risks to which they are subject in prosecuting a war. War is an evil business, but it is sometimes a necessary evil. Nevertheless, if one is to prosecute a war, one must do so with full conviction, take risks and make split-second decisions. I offer that as a first example.

I offer also the example of the bombing of the Belgrade television station, which I mentioned on Tuesday. Paragraph 2(b)(ii) of article 8 refers to

``Intentionally directing attacks against civilian objects, that is, objectives which are not military objectives''

Who is to say that a television station is not a military objective? There was a great feeling during the second world war that Lord Haw Haw was doing damage to this country. I cannot remember whether, during the Falklands war, the television station was attacked, but it is matter of dispute whether a television station is a military or civil objective. Under the rules of the court, it is not within our power to determine that. If the broadcasting station was a huge complex, which was deemed essential to attack, and, as a result, a considerable number of civilian lives were lost in what is euphemistically called collateral damage, paragraph 2(b)(iv) might apply. It reads:

``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''.

Who will determine whether such incidental damage will be defined as clearly excessive? The ICC will do so. The likelihood is that we will be inhibited from taking action against quasi-military targets or targets that the commanders of our forces, including the War Cabinet, regard it as essential to attack.

That poses a real problem. The Gulf war was the first war to be conducted on the television screens of people's homes in the United Kingdom and elsewhere. As the Committee will remember, few lives were lost, and most of the allied lives lost were as a result of what is euphemistically called friendly fire. However, as a result of that war, the public overwhelmingly came to the view that it is possible to prosecute a war completely clinically without any collateral damage. Perhaps the bombing of Belgrade, its bridges and so on, slightly altered public perceptions.

There is a belief in this country that modern weapons are so sophisticated that one can send a cruise missile down the streets of Baghdad and get it to turn right at a traffic light and into a ventilation shaft down to the root of a building. If one is lucky that does happen, and sometimes did during the Gulf war. The work done in my constituency at Farnborough by the Defence Evaluation and Research Agency, and elsewhere in the United Kingdom and the United States, may show technology advancing at such a rate that it will become possible to prosecute war in an even more clinical fashion.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

Will the hon. Gentleman make clear where his remarks are leading? Earlier, he agreed that the proposed ICC would interpret the matters to which he now draws our attention—whether crimes constitute war crimes in given circumstances. However, he appears to be opposed to including whole categories of possible crimes in the Bill. Is he fundamentally opposed to essential parts of the Bill, and therefore to essential parts of the proposed ICC?

Mr Gerald Howarth (Aldershot, Conservative)

I am sorry that the hon. Lady takes such a simplistic view. I am genuinely trying to do what I said at the outset, use probing amendments to illustrate my concerns about how the incorporation of the Bill's provisions into our law would affect the way in which our courts work. I do not have much of a problem with that, but I wanted to highlight the fact that behind the provisions are the identical provisions of the statute, which will govern the ICC. Although I am content that our courts will interpret situations in a sensible fashion, I have raised doubts about transferring so much power into the hands of the ICC, which could prosecute our battlefield commanders even though we had concluded that no international war crime had been committed by our troops.

That is the dilemma that I pose. Whether I support the whole idea is by the by. The Government must say whether they have considered such possible scenarios, how they would react to them, and whether they have the same concern as my hon. Friends and I about the potential impact on our armed forces.

Mr. Mark Hendrick (Preston) rose—

Mr. Desmond Browne (Kilmarnock and Loudoun) rose—

Mr Gerald Howarth (Aldershot, Conservative)

I give way to the hon. Member for Preston (Mr. Hendrick) because he rose to his feet more quickly.

Mr Mark Hendrick (Preston, Labour)

I take that as a compliment.

Would the hon. Gentleman have the same concerns if a British ship had been sailing away from an exclusion zone and 300 Royal Navy personnel had died; or if, during a conflict, the headquarters of the BBC were blown up, causing suffering to hundreds of British journalists and perhaps military personnel gathering intelligence? Would he call for the rogue state involved to be hauled before a court such as the ICC?

Mr Gerald Howarth (Aldershot, Conservative)

The hon. Gentleman does not half tempt me. The idea of the BBC being blown up is far too attractive for some of us in opposition to resist—I take it that the hon. Gentleman is referring to the Blair broadcasting corporation. However, I do not want my levity to be misconstrued. I was paying tribute to the hon. Gentleman's fitness when I commented on the speed with which he jumped up—

Mr. Browne rose—

Mr Gerald Howarth (Aldershot, Conservative)

That was a bit slow.

We are discussing serious matters. I would regard the events described by the hon. Member for Preston as a hostile action, but war is war and fine judgments have to be made. It is difficult for those of us and for members of the public who have not served in the armed forces to understand that people join Her Majesty's forces in the full knowledge that it is not like joining Marks & Spencer or BP—such organisations do not call upon their personnel to lay down their lives. The hon. Gentleman will have heard my hon. Friend the Member for Reigate (Mr. Blunt) say that when he was sitting on the front line, at the foot of the iron curtain, at the very pivot of the massive tension between east and west, he knew that he was in line to be wiped out in the first wave. People who join the armed forces understand the risks that they run.

Mr Mark Hendrick (Preston, Labour)

I speak as a former Ministry of Defence worker who trained at DERA, which has been mentioned and which used to be called the Royal Signals and Radar Establishment. I had regular contact with and worked alongside many military personnel there, so I understand those comments. However, the hon. Gentleman has not answered my question. Would he call for the head of the rogue state I described to be brought before a court—the ICC or any other court—and would he do the same if some other broadcasting station, to which he might be more sympathetic, were attacked?

Mr Gerald Howarth (Aldershot, Conservative)

It would depend on how much that action was a factor in the war as a whole. I am trying express the reservations that I hold, which have been expressed to me by members of our forces. The Minister will accept that the way in which our forces prosecute the tasks laid upon them is constrained; nevertheless, as human beings they could, if faced with a difficult situation, be guilty of some atrocity. Although I do think that we are rather splendid, I do not suggest that we are such a superior people that none of us is capable of committing such a crime—after all, we have prisons full of criminals. I have grave reservations. Rather than people being called to account at a war tribunal, it would be better for them to be dealt with by our armed forces in the course of the battle.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

I apologise to the hon. Gentleman for not being present throughout his remarks—I had to answer an important message—but I suspect that I have heard the argument before in this Committee. None the less, my question is genuine. How many of the provisions of the amendments are already part of our domestic law? The part of the Bill in which they fall relates to our domestic law.

I know what the hon. Gentleman wants to achieve, but if he gets his way with the amendments, probing or otherwise, the one thing that we can guarantee is that the only jurisdiction over the alleged offences will be that which rests with the ICC, because he will have taken them out of domestic law if they are not incorporated in it in any other way. The amendments are not the appropriate vehicle for the discussion that the hon. Gentleman wishes to have—but that may be a matter for you, Mr. Cook.

Mr Gerald Howarth (Aldershot, Conservative)

I expect that the hon. Gentleman was taking a message from Mr. Alastair Campbell. The Prime Minister does all the time.

The hon. Gentleman makes an interesting point. I accept that the offences are being incorporated into United Kingdom law and will therefore by tried by UK law, but that is being done to give effect to the statute. That is what we have been told all along.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

The hon. Gentleman needs to be clear about the subject of part V of the Bill, which is headed ``Offences under domestic law''. We are not simply accepting the statute, but addressing our own law.

Mr Gerald Howarth (Aldershot, Conservative)

I am grateful to the Minister, but it is clear that the offences are being put into our domestic law to reflect the statute.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Perhaps I can assist the hon. Gentleman, although I am not a Minister and he will want to hear confirmation from someone on the Front Bench. As I understand it, we are ensuring that the offences are part of our domestic law so that we can do exactly what he wants us to do: accept our responsibility to develop jurisprudence in relation to them and, if necessary, prosecute our own people in the domestic courts. We can—I shall say this slowly—ratify the statute without part V. The hon. Gentleman's argument for the amendment is self-defeating.

Mr Gerald Howarth (Aldershot, Conservative)

I am grateful to the honourable lawyer for giving me some guidance. I accept the principle of complementarity. Nevertheless, if we are to incorporate the offences into our domestic law, it would be sensible to guard against future ambiguity by making it clear that we want the courts to err on the side of understanding our troops' concerns.

Amendment No. 34 would delete article 8.2(b)(v), set out in schedule 8, which covers:

``Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives''.

If, for example, an undefended village were harbouring terrorists, where would a commander who attacked the village stand in relation to that provision of our domestic law? No one would suggest that the terrorists were defending such villages or buildings; rather, we would say that they were using them as a shield. Would our commanders face action as a result of attacking? In the attack on the command centre in Baghdad during the Gulf war, many civilian casualties occurred, but it was thought to be an important communications centre and therefore deemed a military target. If the offence were incorporated into our domestic law, would we be satisfied that the courts would take the view that that was a legitimate target, or, indeed, that the collateral damage caused was not ``clearly excessive'', in the words of sub-sub-paragraph (iv)?

My final example is that of Dresden during the second world war. I spent some of my formative years in Hamburg in Germany. When I first went to Dresden in 1956, I saw the devastation that had been caused to the city. Area bombing—one description that is given to the wholesale bombing of cities—was the subject of an argument that raged after the second world war and continues today. A very interesting article on Sir Arthur Harris—commander of Bomber Command during the second world war and known to some as ``Bomber'' Harris—entitled ``Exploding the Myths'' was published in the February-March edition of Legion, the Royal British Legion magazine. Hamburg neighbours to whom my parents spoke were in no doubt that the German people realised the damage that was being inflicted on our cities and the damage that Hitler's Government were doing to their own people only after German city centres were bombed and substantial civilian fatalities were incurred.

The point made by the hon. Member for Kilmarnock and Loudoun (Mr. Browne) was a fair one—even if he was a little slow in getting up—but will area bombing be outlawed for ever if we incorporate the provision into our domestic law? The United States air force 1,000 bomber raid on Berlin on 3 February 1945 resulted in the deaths of 25,000 Berliners. Today, that might well be considered excessive ``incidental damage''. I am sorry to use such phrases and I do not mean to dismiss the loss of 25,000 lives, but to hamper our people so that they cannot prosecute a battle in that way would be a very serious matter. To do so could make it difficult to defend ourselves or our interests on a wider front.

It is part of the argument about the role of Bomber Command—I know that you take great interest in these matters, Mr. Cook—Albert Speer, who was in charge of German industrial production from 1942, gainsaid critics who said that Bomber Command was ineffective. According to the article to which I have referred, he said that

``the strategic bomber was the cause of all our setbacks''

and that the failure to stop the bombers was

``the greatest lost battle on the German side''.

Are we enacting domestic legislation that would inhibit any future British Government carrying out such action? It might be the collective view of the Government of the day, supported by the will of the people, that such action was the lesser evil and the only available option.

A future British Government might decide that bombing of the type that took place in Nagasaki and Hiroshima was necessary to destroy a great evil. Would the legislation inhibit such bombing? Huge damage was done to those cities, but which of the two evils is greater? Group Captain Sir Leonard Cheshire, who was on board the United States bomber that dropped that awful bomb on Hiroshima, went on to do fantastic charitable works and was a great and respected figure in the world of charity in this country. The bombing of Hiroshima was clearly a source of great anguish to him. None the less, it was felt that it was the only way to bring that war to an end and prevent a greater evil.

Mr Mark Hendrick (Preston, Labour)

In the light of the outcome of the example that he gave and assuming an Allied victory, does the hon. Gentleman agree that Adolf Hitler—had he not shot himself in his bunker in Berlin—would have been more likely than Winston Churchill to have been brought before an ICC?

Mr Gerald Howarth (Aldershot, Conservative)

The hon. Gentleman makes a fair point. If we were to stick rigidly to it, I envisage that there would be arguments on both sides. The atrocities that Hitler committed were definitely atrocities, and what was done in the name of our forebears in the second world war was done to destroy Adolf Hitler's tyrannical regime, but some would argue that the bombing of Hiroshima or Nagasaki was unnecessary and that those responsible should be called to account. It was said earlier that through the ICC we are trying to avoid tribunals of the victorious or victor's justice. That is my reservation.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

Does the hon. Gentleman accept that there are already international laws against the indiscriminate bombing of civilians? Does he also accept that the current Government and previous Conservative Governments signed up to international agreements and treaties such as the nuclear non-proliferation treaty, the review conference on the nuclear non-proliferation treaty and various other international agreements that limit our actions? His remarks about nuclear weapons leave me uncertain about whether he advocates a first-strike policy in all circumstances, which, in many senses, would be an international crime. He is arguing against the imposition of any constraints or international restrictions on the Government?

Mr Gerald Howarth (Aldershot, Conservative)

The hon. Gentleman and his hon. Friend the Member for Kilmarnock and Loudoun are missing the point. I have not suggested that; I have posited a scenario. The hon. Gentleman asks whether I accept that the use of first-strike nuclear weapons would be a crime against humanity. If Hiroshima and Nagasaki were not first strike, what were they? I would not rule out first-strike nuclear weapons: they were the basis of our nuclear deterrent which ended the cold war, destroyed the iron curtain and liberated the peoples of eastern Europe from lengthy subjection to communism. Many Government Members would disagree with our actions in government during those glorious 18 years, but, through the work of my right hon. and noble Friend Baroness Thatcher, for whom I had the privilege of working, we brought about wonderful changes and ended the cold war.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

Tell us about the poll tax.

Mr Gerald Howarth (Aldershot, Conservative)

We never contemplated the use of nuclear weapons as a first strike against the poll tax protestors, but the right hon. and noble Baroness Thatcher might have it in mind as a possibility, if all else failed.

I shall conclude my argument with the remarks of the noble Lord Shore—a distinguished member of the Labour party who happens to be sound on certain issues. I quoted him on Tuesday, and shall do so again now. He said:

``If I was to take seriously all those new listed war crimes in article 8.2(b) onwards—all of them, not just some of them—I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 359.]

The Minister should answer that point. I would be grateful if he did so.

Mr Robert Maclennan (Caithness, Sutherland & Easter Ross, Liberal Democrat)

Two important points occur to me as counters to the arguments deployed the hon. Member for Aldershot (Mr. Howarth).

First, the hon. Gentleman introduced several hypotheses involving military circumstances in which this country might need to act as a result of decisions taken by politicians in war, describing that as ``necessary''. He advanced that proposition as though there were no background to constrain the decisions of democracy. The reality is that we have long subscribed to the international laws and customs of war and we recognise their existence in tribunals other than the ICC. The schedule from which the hon. Gentleman wants to delete certain provisions that codify existing laws is nothing new: it restates international law as it is widely understood and has been accepted by post-war Governments. By deleting such provisions, he would revoke the existing international law of war.

Secondly, it is strange that the hon. Gentleman takes exception to such matters being considered by the ICC, which is constituted by many member nations. It was agreed by the party of which the hon. Gentleman is a member that, in respect of violations of the laws of war, especially under the Geneva convention of 1949 ratified by a Conservative Government in 1958, protocol 1 of which was ratified in 1998, our troops should be subjected not to an international court, but to the court of any state party to the Geneva convention. If it is acceptable to allow any state party to the Geneva convention to have jurisdiction over our troops when they violate the laws of war, it is a lesser step to allow an international court, given all the international checks that exist over it, to adjudicate in similar cases.

The hon. Gentleman is inflating the risk. I am not saying that his proposal is completely negligible, but he has got things out of proportion. The trail has already been blazed. Given the risk of a miscarriage of justice being perpetrated against British troops, many steps have been taken that are more significant than those that we are contemplating under the Bill,

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I refer first to the simple but critical point spotted by my hon. Friend the Member for Kilmarnock and Loudoun. We want to ensure that United Kingdom courts can always investigate allegations against a British national so that the ICC cannot have jurisdiction. If we accept the amendment and delete certain offences, the result would be that domestic courts could not prosecute cases; thus, the cases would fall within the ambit of article 17 of the treaty in that we would be ``unwilling or unable'' to deal with them, with the result that the ICC would have jurisdiction.

The hon. Member for Aldershot referred to the situation in Sierra Leone. We believe that the crimes set out in the schedule are justified in terms not only of a dry, legal analysis but of the horrors that are still occurring throughout the world. It is a moral argument. As the hon. Gentleman acknowledged, we are discussing serious and barbaric crimes. I regard the amendments as probing, not substantive, and the best way in which to deal with them is to assure the Committee first about the offences. Before doing that, I direct its attention to article 22.2 of the treaty, which states clearly:

``In case of ambiguity, the definition shall be interpreted in favour of the person being investigated''.

In addition, article 22 of the Rome statute states that the provisions are to be interpreted strictly—a principle of strict instruction. That goes straight to the point of creativity about which the hon. Gentleman was concerned.

The ``Elements of Crime'' prepared by the preparatory commission set out clearly the elements necessary if someone were to be convicted. I say as an aside that the United States was content with the outcome of the preparatory commission and agreed the elements. I suspect that it saw them as one way of confining creativity by the court. Let us consider the crime under paragraph 2(b)(ii) of schedule 8, which corresponds with article 51 of the first Geneva protocol. To prove the crime, the prosecutor must first demonstrate that the perpetrator was

``intentionally directing attacks against civilian objects''

or attacking individual civilians who were not taking direct part in the hostilities. The first element is the intention, while the second is the civilian population or the individual civilian's aspect. The third element is that the perpetrator intended those civilians to be the object of an attack. The elements of the crime are set out clearly and the preparatory commission has done further work to try to denfine them.

Mr Gerald Howarth (Aldershot, Conservative)

Is the Solicitor-General saying that the type of area bombing that was carried out during the second world war on Dresden, Hamburg and other German cities could never happen again, although not necessarily as a result of the Bill? I am interested to know the answer.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

Let me deal with the three examples given by the hon. Gentleman. The sinking of the Belgrano would not fall within the provisions that he seeks to delete from the Bill, because it was a military object.

The attack on the television station in Belgrade would not fall within paragraph 2(b)(iv) of schedule 8. The expression

``clearly excessive in relation to the...military advantage''

would not catch that attack because the television station was pumping out propaganda for the Serbian regime. As I said to the Committee the other day, the prosecutor for the international criminal tribunal for the former Yugoslavia has decided not to take the process forward in relation to that attack.

In relation to the second world war Bomber Command, it was partly as a result of the range of events that took place in the second world war that we have the Geneva protocols. The approach taken by all major countries was that war must be more civilised, and the hon. Gentleman's party, when in power in 1957 and 1995, incorporated those protocols into domestic law. I commend it for that and the Labour party at the time supported it. Civilised countries took the view that the provisions were necessary so that, should war occur—it is unfortunately inevitable in our world—it would be conducted in a civilised way.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Before my hon. and learned Friend moves on from the importance of the provisions in terms of international law, would he comment on an aspect of the argument that I have not yet heard articulated in the Committee? The provisions are in international law, and whether they are incorporated into our domestic law or are in the jurisdiction of the ICC does not matter. The provisions serve not only to generate parameters for the behaviour of our armed forces, but to provide a level of protection for our armed forces and our civilian population. If Parliament undermines the provisions and effectively decriminalises the acts, we reduce the level of protection for our armed forces in combat and that our civilian population has in a time of conflict.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I agree fully. The provisions incorporating the Geneva protocols have that civilising effect, and we have signed up to them. We are signed up to them for a number of years. I will develop that point, which was raised by my hon. Friend the Member for Ilford, South (Mr. Gapes) and by the right hon. Member for Caithness, Sutherland and Easter Ross. In the provisions that the amendment would delete, article 8.2(b)(i) set out in schedule 8 is taken from article 51 of the first additional protocol to the conventions. It relates to a grave breach under article 5.3 of the protocol. That was incorporated into our law in 1995, under the Geneva Conventions (Amendment) Act 1995, so it is already an offence under domestic law. The effect of the amendment would be to reverse our domestic legal provisions.

Paragraph 2(b)(iv) of schedule 8 is based on article 51.5(b) of the first additional protocol, and relates to a grave breach of the Geneva convention under article 85.3. The provision is a milder form of the provisions in the Geneva protocol. The language in the Bill states:

``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians...would be clearly excessive''.

That ``clearly'' does not appear in the Geneva protocols. We have an element of an offence that is imposing a far higher threshold on criminal culpability, because of the words ``clearly excessive'' in relation to the

``concrete and direct overall military advantage anticipated''.

The amendments, which I accept are probing, would remove offences that are already in our domestic law as a result of legislation introduced by the previous Government.

It was suggested that the matter would have a chilling effect on the operations of the armed forces. My hon. Friend the Member for Kilmarnock and Loudoun quoted from the former head of the British Army Legal Service the other day, and my hon. Friend the Minister of State quoted the words of Colin Powell. My hon. Friend the Member for Preston reminded us that we are addressing the effect on not simply the armed services, but workers at the Ministry of Defence, Ministers who may be involved in approving attacks and Law Officers. Therefore, I have personally considered the effect of the provisions being incorporated into domestic law, and I assure the Committee that the creation of the ICC will not inhibit the proper conduct of duties by the armed forces or Ministers. The provisions have nothing to do, in terms of the defined elements, with unfortunate and avoidable mistakes that may occur in wartime or with the second-guessing of decisions taken in good faith by the armed forces. They are about punishing people who carry out attacks in the full knowledge—that relates to article 8.2(b)(iv)—that the civilian damage will be disproportionate. Such people are those who systematically shelled and blew up virtually every building in Vukovar, during the war in Croatia. The action was not for legitimate military reasons, but to allow people to vent their ethnic hatred.

As I said at the outset, the amendments would reduce the protection for the armed forces, and I ask that they be withdrawn.

Mr Gerald Howarth (Aldershot, Conservative)

I am grateful to the Solicitor-General for responding to my points. He was right to observe that the amendments are probing, rather than substantive, and I hope that his comments will reassure our armed forces. He said that he did not believe that the provisions of the schedule would inhibit our forces in a legitimate prosecution of their activities. I am sure that I have not got the words exactly right, but he certainly used the word ``inhibit'', which is the one that springs to mind. I hope that he is right. I am disappointed that the Government are not prepared to enter a reservation or interpretative declaration, to use the French expression, as the French have, because it would have been helpful to have done so. I accept the point that he and the hon. Member for Kilmarnock and Loudoun made—that we are discussing matters that are essentially for United Kingdom courts to judge. I hope that, if the Bill is passed and we are ever in the unfortunate position of engaging in a sufficiently large conflict in which such issues might arise, our courts will interpret the provision in the way that the Solicitor-General suggests and that it will not inhibit our armed forces. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.