moved Amendment No. 1:
Before Clause 1, insert the following new clause--
:TITLE3:RATIFICATION: RESERVATIONS AND DECLARATIONS
(" . The Secretary of State shall not ratify the ICC Statute unless--
(a) a report is laid before Parliament, setting out--
(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,
(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
(b) that report is approved by each house of Parliament.").
My Lords, the amendment states that,
(a) a report is laid before Parliament, setting out--
(i) any reservations Her Majesty's Government proposes to make and the reasons for those reservations,
(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
(b) that report is approved by each house of Parliament".
The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure. Those who have followed our proceedings will have noted that while reservations to the statute are prohibited under Article 120, a range of declarations and interpretative comments have been placed on the ratification status document by some of the 39 countries which have already ratified the statute. In some cases, those are very detailed--in particular as regards France and Israel. It seems only right that we in Parliament, and your Lordships, should seek to know what declarations the Government intend to put down. They will colour the way in which this country approaches the statute and the entire project, and deals with the International Criminal Court authorities in the future.
Not having had much luck at earlier stages in seeking clarification from the Opposition on how our Armed Forces will be protected where the United Kingdom is unwilling to make an investigation but where the ICC therefore feels that it has the jurisdiction to do so, and having found some reluctance by the Government to state what declarations there will be--they would in effect be reservations with a small "r"--we seek again to elicit this information by placing the requirement proposed in the amendment on the Government before they ratify.
It is an important requirement. It is not just an idle request in order to keep Parliament informed in an age when, all too often alas, it is by-passed. It is a matter of great concern. That concern has been expressed strongly in this country by our Armed Forces. If anyone doubts that, he should have read the front pages of our daily newspapers. A great deal of uncertainty remains. If anyone thinks that this is an idiosyncratic request coming only from one side in the British context, look at the attitude of other countries.
France and Israel have made declarations which seek to protect their armed forces. They are clear on the ratification status document. I draw attention to one. It states that the declaration of the Government of France does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law. Another declaration seeks to interpret the phrase, "military objectives", which appears in the war crimes schedule, in ways which would be handled by the French themselves.
What is behind those and other considerations is not a narrow nationalism or even an unwillingness to support the noble and excellent principles behind the setting up of the court, and the Bill. It is simply to accept--the point was made by the noble Baroness, Lady Williams of Crosby--that modern actions by troops, soldiers and armed forces are extremely complex, sensitive and difficult. They involve many levels of response, from the non-response--"Don't shoot back at all"--to a self-defence of the most vigorous kind. These require the most refined and rapid judgments under fire and place on our Armed Forces considerable burdens of decision as to whether they are acting in a lawful way, or an unlawful way which could constitute in the eyes of others--not of their own commanding officers, their own jurisdiction or their own country--a war crime and, therefore, make them liable to investigation and charges.
We believe strongly that Parliament must know the declarations that our Government will put down on the status document to protect the Armed Forces--they are trying to do their job in difficult circumstances--against these additional risks and challenges.
That is the thinking underlying Amendment No. 1, grouped with Amendments Nos. 3 and 7. Perhaps I may speak to Amendment No. 3 in the name also of my noble friend Lord Kingsland. It returns to the question of reservations but particularly in relation to Clause 50. One cannot make reservations about the statute itself. But reservations in relation to other treaties which may be relevant to the interpretations of articles under the statute can be withdrawn, made, revoked or amended by the Government.
Parliament has a right to expect to be involved in the detail of such matters. Amendment No. 3 proposes that before any such reservation or declaration to a treaty predating the International Criminal Court statute is withdrawn, the reason for such withdrawal is approved by both Houses of Parliament.
Underlying the two amendments is the continuing concern--it has not been answered in all our discussions--about the further protection of Armed Forces. I am the first to concede that life is difficult enough for those operating in hot war, or nearly hot war, situations under the mixture of constraints and laws which rightly govern the modern warfare in which our nation becomes increasingly involved; namely, humanitarian causes and peacekeeping. But it is evident, and many believe--I am one--that unless we are very careful we shall add to rather than subtract from those difficulties. It is in that spirit that I beg to move the amendment.
My Lords, Amendment No. 7, which stands in my name, is grouped with Amendment No. 1, moved by the noble Lord. I have no disagreement with what he said. Indeed, my task is made simpler. I shall seek to reinforce the case made by the noble Lord in his usual moderate way.
In some ways a long tradition inhibits me from intervening on Third Reading and moving an amendment. It is almost unknown in another place. But this House gives quite extraordinary latitude to Members and I shall take advantage of it.
It is a serious move to which I wish to draw the attention of the House. Let us be clear. I have no problem with the thrust and purpose of the convention and the Bill. I welcome the implementation as an international crime, and with all the mechanisms so described in the Bill, of genocide (Article 6 in the convention), crimes against humanity (Article 7), and the traditional war crimes, with which we have been familiar since the First World War, referred to in the first part of Article 8. I add this point. The kind of circumstance which most noble Lords have addressed when speaking in favour of the Bill would be covered entirely by the enactment of Articles 6, 7 and 8(2)(a). Dreadful monsters such as Pol Pot and Saddam Hussein, who have inflicted such misery on their own people and on others, would be caught under those provisions. There is no worry about that. That would close a great gap in international law.
So what is my problem? It is twofold. The lesser part of it is that, almost unbelievably, the list of very important acts of war, which are to be outlawed in Article 8(2)(b), has not even been mentioned in either House of Parliament during the evolution of the convention. Statements were made in both Houses in July 1998 saying that we were signing the Rome Convention and just before that my noble and learned friend Lord Archer of Sandwell initiated a valuable debate in which he gave his principled case for the implementation of Articles 6, 7 and 8(2)(a) as part of an international treaty. However, on none of those occasions or in the Commons debate on a Wednesday morning some time in November 1999 has anyone mentioned the list of acts of war that are to be criminalised. I was going to call them new crimes, although others might call them old crimes. That is an astonishing failure of Parliament to do its job, but we have a chance to rectify it now.
My Lords, my noble and learned friend has pointed out that, because of failures at earlier stages, we are faced with a procrustean treaty and a procrustean Bill that we cannot amend. I wholly accept that. Only two devices were available to us. One was to delay implementation of Article 8(2)(b) for seven years. The noble Lord, Lord Howell, moved an amendment to that effect on Report. I supported him on that. The only alternative is to put a statement on the record as to the real reservations--
My Lords, before the noble Lord agrees too readily with the noble and learned Lord, Lord Archer, does he recall that when President Clinton ratified the statute in the last days of his presidency, he said that it should not be made legislation by Congress without amendment? It was his view that it ought to be amended.
My Lords, I am grateful to the noble Lord for that helpful comment.
I assure the House that I shall be very brief in refreshing memories about my concerns. My amendment is very similar to that tabled by the noble Lord, Lord Howell. I have itemised certain aspects of Article 8(2)(b). I have no objection to some parts of it, but there are others that affect our ability to wage war. The article would make it a war crime deliberately to bomb civilians in a major war, intentionally to direct attacks against civilian objects or intentionally to launch an attack,
"in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects".
It would be dishonest to put my name to that. No one can fight a major war without engaging in measures that will involve civilians and civilian property. There is no point in denying that.
Further on, the article lists,
"Employing poison or poisoned weapons", and,
"Employing asphyxiating, poisonous or other gases".
That is very unpleasant, but many people think that depleted uranium is a poison. Depleted uranium bullets were used recently against tanks during operation Desert Storm. Are we going to allow that to become a legitimate subject of criminal prosecution?
The article also refers to,
"Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival".
One great ingredient of the Second World War was the blockade. We did not wish to inflict starvation on our enemies, but depriving them of resources was one of the weapons that we judged necessary for waging war.
Many of the issues listed arise not just in massive total warfare, but in the minor warfare--minor in terms of cost and endurance--and engagements that we have been involved in since the end of the Second World War. We bombed civilian targets in Kosovo, Serbia and elsewhere as recently as two years ago. We know that. I greatly fear that we shall put our military in an impossible position.
We have literate Armed Forces. Our servicemen can read and write. They are an intelligent force equipped by a modern democracy. It is not just the odd barrack room lawyer who will read such documents. They will be read much more generally. There will be a challenge and an uncertainty to the exercising of authority throughout the Armed Forces. It is carrying matters to the limits of absurdity and dishonesty to say that those who give commands are to be held responsible for any breach of those commands.
That brings me back to the issue of what to do with this Procrustean treaty and Bill. Having failed to secure a seven-year reprieve, at least we can insist that the Government make a declaration. That is allowed for. The French and others have used that device already. I am not going to write the declaration for the Government, or even dare to suggest the words, but surely there is sufficient sense, resource and responsibility in our Government to produce a short document that covers such problems and makes it clear that our Armed Forces or the people who command them will not be hauled before international tribunals or be made the subject of false accusations in our country and its courts.
We are in good company. The Americans find the whole thing difficult to accept. That is not just because they have a more robust or indifferent view. They are constantly engaged in the policing of the post-war world. We are only second in terms of frequency of action. The French are also involved. Is it not rather surprising that three of the five members of the Security Council have refused to go along with the statute without reservation? Are we to be so isolated? Other countries which have difficulty with it are democracies for which I have considerable respect, such as India and Israel, to which the noble Lord referred in his earlier remarks.
I end by giving an additional reason for my concern. I mentioned such matters as depleted uranium being poisonous, and the bombing of civilian targets, even when incidental. Can one imagine what the government of Iraq will pour out from Baghdad in terms of propaganda? All the sympathetic--or, rather, bullied--countries which want to remain in favour with Iraq will propagate charges in relation to such matters.
As my noble and learned friend the Attorney-General assured me during our debate at Second Reading, if such charges ever reach the courts, he will win the case because he has the ability and the conviction, and so on. He knows that we are right and that we would not dream of carrying out such dreadful deeds. As I said to my noble and learned friend on that occasion, we shall lose not in the court of law--although that is possible--but in the court of public opinion. All over the world, the enemies of this country and of democracy will seize the type of material that is set out in the Bill and say, "They are not even observing their own laws and convention. What a lot of hypocrites they are"-- when we only take up arms to protect ourselves and to protect the cause of democracy.
My Lords, I shall not attempt to match the oratory of the noble Lord, Lord Shore of Stepney. I shall deal with a fairly narrow but important constitutional issue. I am very glad to do so in the presence of the Attorney-General because I believe that the amendments raise an important issue of constitutional law and practice. I shall say something about the merits of what the noble Lord, Lord Shore, said with regard to redefining war crimes. However, I shall not say anything about the responsibility of force commanders until we reach Amendment No. 7, under which that matter logically arises.
I believe that the House owes a debt of gratitude to the noble Lord, Lord Howell of Guildford, for tabling his amendments. They raise an important issue that has concerned me during most of the time that I have been in this House--that is, the extent of parliamentary involvement with the executive branch of government when that government sign and ratify international treaties and make reservations or declarations under those treaties.
Indeed, some years ago I was moved to introduce a Private Member's Bill on that subject, and I received support from all sides of the House. It was a much more modest measure than these amendments. Essentially, it proposed that an impact statement should be made in order to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. It also proposed that a committee--I believed that preferably it should be of this House--should be formed in order to scrutinise in some detail treaties such as this so that the House would be better informed when it came to debate. No doubt, that committee could have examined proposed reservations and declarations.
The story thus far is that the previous government accepted impact statements. They are now laid with treaties so that we have some idea of the object, purpose and impact of a treaty. The Royal Commission on the reform of this House recommended that a treaty scrutiny committee should be formed. However, through the Liaison Committee, your Lordships recently decided that now was not the appropriate time to follow that course. That decision was reached for reasons that I understand perfectly well; they are mainly resource reasons. We have so many new committees that I can see that adding a further one at this precise moment might overstretch our resources in terms of Peers and support.
The Government have indicated--the Minister will correct me if I am wrong--that they will change the current practice. In future, important treaties which the Government are minded to ratify will, as I recall, be referred to Select Committees of the other place in order that they can be examined--not across the board but in terms of subject speciality. I believe that that is a welcome step forward.
These amendments seek--they do so only in relation to the ICC statute--to write into the Bill a condition that the executive branch of the Foreign and Commonwealth Office cannot on behalf of the government of the United Kingdom and, hence, on behalf of the United Kingdom as a whole ratify the ICC statute until both Houses of Parliament have approved a report setting out the reservations and declarations. Of course, as a democrat, I cheer in a way because that is the maximum amount of parliamentary approval that one could possibly expect with regard to declarations and reservations.
However--I hope that in what I am about to say I am not regarded as too executive-minded--I am not sufficiently democratic to wish to go that far in relation to this or any other treaty. One practice that I do not admire in the United States is that which requires the United States Senate to give its approval to the ratification of treaties. It is precisely that which has caused a prevailing conservative majority in the Senate, led by such distinguished Senators as Bricker, either to tack on to international treaties amendments of their own in order to frustrate the purpose of government in entering into them on the international plane or, having in one way or another hampered the ability of successive United States governments--Republican as well as Democrat--to be able to enter into treaties such as the genocide convention, to take only one of several extreme examples.
I believe that there are limits to democratic accountability. In the field of European Union law, rightly we have very deep scrutiny--for example, in this House--because legislation which emanates from the European Union is often directly binding on this country without the need for Acts of Parliament. However, I do not believe--nor do I consider that my party would believe--that we should go so far with democratic scrutiny as to say that, whether in relation to this or any other treaty, the executive branch cannot ratify unless any reservation or declaration has first been laid before each House by report and approved.
Perhaps I may remind your Lordships briefly that, so far as I am aware, that has never been the practice in relation to previous treaties, however important or controversial. I take as an example the one that I remember best--that is, the European Convention on Human Rights. The Attlee government did not even lay it before Parliament for debate. When the Conservatives won power and in, I believe, 1953 ratified the first protocol, which did very controversial things in the field of education, property and voting systems, they made a reservation under the education provision. It would have been unheard of for Parliament to have to approve the signing and ratification of either that protocol or the reservation that was made at the time.
Therefore, we are considering the relationship between Parliament and the executive in the treaty-making sphere. Although it would be most welcome if, at the right time, the Government were able to inform the House of the reservations or declarations that they proposed to make, I do not believe that it would be proper or sensible for Parliament to write that requirement on to the face of this or any other Bill dealing with treaty incorporation.
Finally in relation to this matter, it would give a strange sense of our priorities were we to write in such a requirement for the International Criminal Court Bill, which deals with such important subject matter as war crimes, crimes against humanity and acts of genocide. It would appear in some way as though we considered this treaty to be more difficult to accept than all the previous treaties concerning torture, inhuman and degrading treatment, punishment, and so on. That is all I want to say about the principle raised by each of these three amendments. It is a very important issue.
So far as Amendment No. 7 is concerned, this is not the time for me to explain in detail why what is contained in Article 8 of the statute, in the definition of "war crimes", has for many years represented the relevant international law. The only way in which I can appeal to the noble Lord, Lord Shore of Stepney, is not by explaining the law but perhaps by quoting something said by a very famous American General after the war in the controversial context of the Yamashita case. I do not believe that the majority of the Supreme Court in the case of Yamashita gave a ruling with which I agree; I prefer the dissents. However, that is beside the point. For me, the words of General Douglas MacArthur sum up an answer to the values expressed by the noble Lord, Lord Shore. General Douglas MacArthur said:
"The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason for his being .
When he violates this sacred trust he not only profanes his entire culture but threatens the very fabric of international society. The traditions of fighting men are long and honourable, based upon the noblest of human traits--sacrifice.
The officer, of proven field merit and entrusted with a high command including authority adequate to his responsibility, has failed this irrevocable standard, has failed his duty to his troops, to his country, to his enemy, and to mankind; he has failed utterly his soldier faith".
For those kind of reasons, we are opposed to all three amendments.
My Lords, the noble Lord, Lord Lester of Herne Hill, has all but kicked into touch, into the groves of academia, Amendments Nos. 1, 3 and 7 as printed on the Marshalled List. With the leave of the House, I should like to return to them and to the relevant provisions of the Bill.
The House will be grateful to my noble friend Lord Howell of Guildford for having drawn our attention to the need for clarification of matters which at the moment remain obscure--and I do not propose to indulge in any repetition--and on which the Government are under an obligation to inform Parliament and seek the approval of Parliament. Those matters relate--and here we come to the provisions of the statute--to reservations entertained by government on any articles of the statute on which a formal reservation on ratification is prohibited by Article 120.
One has to draw the distinction, as I think my noble friend did when he talked about "R" with a small "r" and a large "R"--it is a vital distinction, because reservations are prohibited--between that and the exceptions as to the jurisdiction of the ICC on Article 8 up to seven years, which may be made, and have been made by France, under Article 124. That exception is declared on ratification, which, it is understood, it is not the intention of this Government to make. From a practical point of view, that is where we stand in considering Amendment No. 1.
At Committee stage, on my amendment on prisoners taken in armed conflict, which is not at all the same as the protection of those indulging in armed conflict--the matter before the House today--the noble and learned Lord, Lord Williams of Mostyn, informed the House that the Government would make interpretative statements on ratification. I do not know what that means. I respectfully ask: for what purpose, related to which articles, what is the substance, for what reason should they be made, and what would be their effect? I ask, not to try to be clever--as someone said, as a barrack room lawyer--but because I simply do not know; and I think that the House is entitled to know.
It is also important to know whether Amendment No. 1, if accepted, would delay ratification. It is certainly of importance to me, having accepted an undertaking on my amendment on the basis that there should be no such delay. Having accepted that undertaking, if there were any effective delay, I should have to abstain on a Division. I respectfully ask when, in due course, the Government intend to ratify the measure. If this amendment could be implemented before that intention were implemented, there would be no objection.
Your Lordships are entitled to have answers to these questions on the Floor of the House before this Bill do pass. In the absence of any satisfactory undertaking on this amendment and on Amendment No. 3, these amendments could well commend themselves to your Lordships. If so, Amendments Nos. 1 and 3 are in no way inconsistent with Amendment No. 7, spoken to by the noble Lord, Lord Shore.
I turn to Article 9, the machinery of the statute, in relation to which no great academic expertise is required; one has only to read Article 9 at the end of Schedule 8 of the Bill. It is understood that the draft text of the elements of crime on interpretation and application of Articles 6 to 8 will be approved by the state parties, and that under paragraph 2 of Article 9 any state party, a majority of judges, or the prosecutor may make proposals for amendments, which could not be implemented until 2007, by the assembly of states--not, of course, by our Parliament or the parliament of any member states. As these elements of crime, as amended, will govern the interpretation and application of these articles in our domestic courts, ratification, let us face it, will involve a limited surrender or pooling of sovereignty, save as excepted for up to seven years under Article 24, as proposed by Amendment No. 7 tabled by the noble Lord, Lord Shore.
As one of the leading Christian states in Europe, perhaps the servants of the "Grand Design" of King Henry of Navarre and his great Minister, Sully, we shall ratify the statute which seeks to afford universal protection against inhumanities. That is a moral commitment not called into question by Amendments Nos. 1, 3 or 7.
There is little for me to say on Amendment No. 7 in the name of the noble Lord, Lord Shore, because, in effect, it has all been said, and said much better than I could say it. I wish only to point to the fact that during the course of debate on this Bill, many concerns have been expressed on Article 8, most of which relate to the provisions of Article 8 referred to in the noble Lord's amendment.
As yet, those concerns have not been addressed other than by the Government contending that such is the state of public international law, and we then all say "yes", and the provisions as they stand are adequate and wholly intelligible, and we all say "no" and the Government say "yes". There is the issue and there is the need for concern.
But on the protection and safeguards of those taken prisoner in armed conflict, the Government have given a most valuable undertaking, which addressed one particular concern, which ensures that if inadequacies appear to exist, on representations, proposals for amendments to the elements of crime will be made for the consideration of the assembly in 2007.
As the contention is that such inadequacies do exist today and that Article 8 should be reviewed for redefintion and clarification, I support this amendment. It does not and could not delay Royal Assent or ratification of the statute. Therefore, having accepted the undertaking from the Government, I have no qualms about supporting this amendment in any event.
The reasons for my support have already been given on Second Reading, in Committee and on Report when speaking to my amendment which was withdrawn on this undertaking. On more than one occasion in debate on this Bill, the noble Lord, Lord Shore, has given reasons--coincidentally, they are not in prior arrangement with me--which have squared with my own, more or less. The noble Lord has made an admirable speech, for which the House will be grateful, and it is not for me to indulge in repetition and I commend Amendment No. 7 to the House.
My Lords, I want to mention two items listed as war crimes in Article 8 which have not yet been mentioned in this debate. They seem to me among the most important. Item 2(a)(i) refers to "wilful killing" and (iii)refers to,
"Wilfully causing great suffering, or serious injury to body or health".
Are not those exactly the sort of things which our troops in war are instructed to try to inflict on any enemy?
My Lords, I want to make only three very brief comments in support of this group of amendments. The first is that, like it or not, civilians are part of a total war. In the last war, we had to bomb Berlin; they bombed us. People were proud to be part of the war, part of the front line. If we had not bombed--I am sorry to say--the Ruhr, I doubt whether we should have been able to invade the Continent and liberate it. We needed to destroy the arms which were being built there. That is the first point.
The second matter is that the word "intentionally" is very subjective. It seems to me that many people, like members of the IRA, would come back and create any number of "Bloody Sundays" without anyone being able very easily to prove whether something done had been intentionally or not.
If one looks at the UN and its record of activity, in general, the UN troops are quite hopeless at policing any sort of active conflict because they are inhibited in how they respond to attack. We would be doing that to our troops. What on earth would be the rules of engagement if the MoD had to flog through this and wonder whether or not the rules of engagement would be protecting them and protecting the people?
It seems to me that we would completely inhibit the ability of our troops not only in a serious fighting war but even in the matter of the so-called Petersberg tasks and humanitarian events. One has only to look at what is now happening on the border of Macedonia to see that troops need to have absolutely clear rights to defend themselves. If we come back to the word "intentionally", it all hangs on whether the other side says that you intentionally shot them before they shot you.
My Lords, I am grateful for the contributions which have been made. I deal first with the remarks of the noble Baroness. She asked, rhetorically, what would be the rules of engagement. One of the difficulties about rhetorical questions is that sometimes, they call for an answer.
The rules of engagement, with which she and I are both well familiar, are, of course, presented and provided to our Armed Forces at the moment in relevant conflicts, of which there have been a number recently. They are all drawn in conformity with the law, which includes international law, and, of course, they are there for the dual purpose internally that they shall know what the law allows; and secondly, to protect them when they act lawfully. So I can say from personal experience that there is no difficulty at all in casting and providing rules of engagement for our servicemen who themselves--I take up the theme of the noble Lord, Lord Lester--wish to act honourably and lawfully and who, in the overwhelming number of circumstances of which I am aware, fulfil that task.
I go back to the question which was put specifically by the noble Lord, Lord Campbell of Alloway, who asked whether there would be significant further delay. There would inevitably be such delay deriving from the structure of the first amendment in the name of the noble Lord, Lord Howell, because a good deal of parliamentary activity has to be gone through, not least in a report to be set out and approved by each House of Parliament. Of course, for a significant period of the year, neither House is sitting and there would be very substantial delay. The noble Lord was good enough to indicate to me that he might raise this question. Our policy purpose--I hope that it has been abundantly approved as a policy purpose by both Houses--is to be among the forefront of those who ratify.
As my noble friend Lady Scotland and I have said on previous occasions, we were in the vanguard of this particular international activity. We want to be among the first 60, and until 60 ratify, the treaty cannot come into effect.
I mentioned the noble Lord, Lord Lester. He raised what he indicated was a wider question and one not limited to this Bill. I am happy to revert to what my noble friend and I have said on earlier occasions. I agree with the noble Lord, Lord Lester, that there is a genuine issue that should be addressed on another occasion as to whether we should have a treaty scrutiny committee. Perhaps he will forgive me if I simply, without presumption, endorse that that is a valid matter and move on from that wider point.
First, I turn to Amendments Nos. 1 and 3, which deal with matters of reservations and declarations and, secondly, without trespassing on your Lordships' patience, I shall deal in some detail with what the noble Lord, Lord Shore, said. The first two amendments relate to reservations and declarations. Having self-instructed ourselves during previous debates, we all now know that no reservations are capable of being made to this statute and, accordingly, Her Majesty's Government will not make any. As noble Lords have pointed out, that is Article 120 of the Rome Statute:
"no reservations may be made to this Statute".
Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the fact--already found in some declarations--that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one.
We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make. I know that the noble Lord, Lord Howell, has received a full letter from my noble friend Lady Scotland and we are happy to keep in close contact with the noble Lord or with any other noble Lords who are interested in this matter. At the risk of tedium, I have to say that reservations are not allowed. We shall not be allowed to make any effective declaration that purports to modify the legal effect of the statute.
I repeat that we signed, to a general welcome in both Houses. There is already parliamentary provision--I use that as an umbrella description--in the Bill at Clause 50 for any statements made to be laid before Parliament by Order in Council. Clause 50 sets out that Articles 6, 7 and 8.2 of the statute shall be construed subject to and in accordance with any relevant declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles. We intend to lay before the House, in that form, any relevant declarations, including any made on ratification of this statute.
This is not new. The noble Lord, Lord Lester, is quite right. In the Geneva Conventions (Amendment) Act 1995, for example, it was thought appropriate under our predecessor regime that the statements made on ratification should be set out by Order in Council after they had been made. We believed that that was the correct approach then and we believe it is the correct approach now.
The noble Lord, Lord Blaker, introduced certain short questions, to which he is entitled to an answer. The answer and the matters that engaged his mind are to be found in the work of the preparatory commission for the ICC. Article 8, as the overarch to the introduction to war crimes, makes it quite plain. I shall read it out as it focuses precisely on the question put to me by the noble Lord.
"The elements for war crimes under Article 8, paragraph 2 of the statute shall be interpreted"-
I pause to underline the following words--
"within the established framework of the international law of armed conflict, including as appropriate the international law of armed conflict applicable to armed conflict at sea"-- which refers to the question raised about blockade. In other words, those acts that are lawful, pursuant to the established framework of international law of armed conflict, remain lawful.
Having set out my objections and explanations on Amendments Nos. 1 and 3 on behalf of the Government, I turn to do honour to the argument deployed by the noble Lord, Lord Shore of Stepney, in a little detail. He raised questions about a number of distinct articles. I shall introduce the matter in this way: Article 8.2(b)(i) is taken from Article 51 of the Additional Protocol I to the Geneva Conventions. It is a grave breach under Article 85.3 of that protocol. Therefore, it has been an offence under United Kingdom law since 1995 under Section 1 of the Geneva Conventions (Amendment) Act 1995, which I mentioned a moment ago.
British courts have universal jurisdiction over that and all other grave breaches of the convention. In parenthesis--this is an important parenthesis--I should say that both the noble Baroness and I have tried to underline on every appropriate occasion the principle of complementarity, which is not a dry piece of jargon loved only by lawyers. It is important that I repeat, for the reassurance of the House, that that means that domestic jurisdiction has the first opportunity of trying those charges. If charges are to be brought, they can be brought in the United Kingdom courts. Only if the domestic jurisdiction, namely our own, is unable or unwilling to take jurisdiction will the international criminal court feature at all.
Article 8.2(b)(ii) comes from Article 52 of the protocol. Article 8.2(b)(iv) is a weaker version of Article 51.5(b) of Additional Protocol I, which is already a grave breach under Article 85.3. Therefore, I repeat that it is already a criminal offence under UK law. It is true that, in the past, prosecutions have been rare if not unknown, but that does not mean that the law does not exist with its power and weight available to be deployed on any suitable and relevant occasion.
Article 8.2(b)(xvii), to which the noble Lord particularly referred, comes from Article 23(a) of the Hague Convention IV of 1907. Forgive this historical recitative, but we ratified that in 1909. Article 8.2(b)(xviii) comes from the Geneva Gas Protocol of 1925, to which, rightly in my opinion, we have been a party since 1930. At the time of signature, we entered reservations but those were superseded when we adhered to the later Chemical Weapons Convention of 1993.
Article 8.2(b)(xix) comes from the Hague Declaration 3 of 1899, to which we have been a party since 1907. Article 8.2(b)(xxv) is based on Article 54 of Additional Protocol I.
All those crimes that I have mentioned in what I recognise to be tedious detail, but necessary for the record as well as for reassurance, are already crimes under international law and many of them are crimes under domestic law. We have lived by them for many years and have no difficulty in accepting them now. I repeat that I have confidence in the ability of Her Majesty's Armed Forces to discharge their duties honourably and lawfully.
We come to a fundamental question which lies behind the Bill and our action, which, I repeat, was endorsed by both Houses. Do we wish the law to have the strength and power to which we pay lip service? Lip service is easy, cheap, costs nothing and offers no remedy.
My Lords, I am grateful to the noble and learned Lord and to all noble Lords for their comments. I am pleased by the reception which the amendment has been given by your Lordships but I am a little less pleased by the Minister's comments.
Perhaps I may first put aside the amendments to Clause 50. I assume from what the Minister said that there will be Orders in Council and that they will be handled by affirmative resolution. Unless I am checked on that matter, I am to some extent satisfied. I fully accept that those reservations lie outside the Rome Statute, that Parliament will be fully involved and that the affirmative resolution procedure will apply.
Secondly, I repeat--the noble and learned Lord repeated it and we all repeated it to each other--that we recognise that reservations are not allowed under the Rome Statute. That is why the amendment, which specifically mentions reservations because they are relevant to other treaties, emphasises the point about declarations. It simply asks that Parliament should be involved in the process leading up to such declarations as Her Majesty's Government will put down at the time of ratifying the statute in the ratification status document.
I am afraid that, although the noble and learned Lord promised not to lose contact over these matters, he did not address the central issue of whether Parliament should be properly involved. I shall turn in a moment to the broader question raised fascinatingly by the noble Lord, Lord Lester, about the extent to which Parliament should be involved in any treaty arrangements or to what extent the Royal Prerogative prevails. In this case, which I shall argue is a special case and not a precedent-setting case, the right of Parliament to know what is happening is very strong and can be reasonably pressed.
Behind the issue is the worry, which was addressed with great eloquence by the noble Lord, Lord Shore, that these war crimes are widely drafted and need the most careful guardianship with assessment. We raised the matter at earlier stages of the Bill and this is the point where suitable declarations ought to be drafted and brought before Parliament in order to reassure those who are worried and to safeguard our Armed Forces and other people.
"War crimes have enormous definitional problems concerning civilian targets ... Would the United States, for example, have been guilty of war crimes for its World War Two bombing campaigns and the use of atomic weapons under the Rome Statute?".
That is not a frivolous comment made by a bystander; it is a serious comment made by a senior member of the American administration.
We shall turn to the responsibility of commanders when we debate Amendment No. 6. We shall also debate matters relating to the Manual of Military Law and to what extent it covers, and has long since covered, all these issues and all the various definitions of war crimes. The noble and learned Lord was kind enough to give us a long history of the way in which the various crimes have become recognised international crimes and have long been accepted as part of the context in which war must be fought, as, indeed, it could and has been argued, have the lists of crimes in the military manuals and the rules of engagement.
However, with the greatest respect to the noble and learned Lord, all that is extremely interesting but, to use his own words, it completely misses the point. The point is that whether or not the crimes were previously on the statute book, we are now introducing a new and higher jurisdiction which may, in some cases we are not willing to investigate, want to press the matter. This is a new aspect, a new dimension, to an existing situation. It is no defence to say that because for years and years we have recognised these as international crimes everything is as before. Everything is not as before. The Bill is proof that we are trying to change things; we are trying to introduce a new jurisdiction. We welcome that in principle, but it means that we must be 10 times more careful in our handling of the definitions of these war crimes.
The noble and learned Lord urges that we be at the forefront in carrying forward the project. Indeed, other noble Lords have spoken again and again about the need for the United Kingdom to set an example and be among the founder members and so forth. I suggest to Ministers and to the noble and learned Lord that there are two ways in which we can best be an exemplar and a role model. First, we must try to bring along the great United States, which has enormous concerns. Its non-participation will come close to wrecking the project; it will severely question the plausibility and credibility of the International Criminal Court if we cannot get the Americans to move further than merely signing with reservations. We shall debate the American position in a moment, so I shall not go into more detail. However, everyone is agreed that American involvement would be a huge advance and to take steps to encourage that would set a fine example. However, they have made it absolutely clear that they are opposed to ratification, and General Colin Powell repeated that again recently.
The second way in which we should set an example would be to reassure our Armed Forces and to do so in ways which show that we recognise that there is a new situation. For all the rules of engagement, and for all the war crimes which have been adopted as international crimes since 1909, there is a new situation in which a higher jurisdiction may--not always, of course--want to involve itself at the instigation of an independent prosecutor who will not come under British jurisdiction.
Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent? I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.
The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.
The range of crimes, to some of which the noble Lord, Lord Shore, referred, sounds rather fearsome. As I child, I remember receiving a message that my father had escaped from the second siege of Tobruk, which very much pleased me. It never occurred to me, and I am sure to him, that war crimes were involved. It is very difficult to define a siege and a military objective. Those matters have been on a list of international crimes and are now coming onto our statute book. I believe it is right that we should have some protective declarations to reassure our people that these matters will be handled in a sensible, mature and wise way. In so doing that will merely reflect the concerns expressed by our neighbour France, Israel, the debates in the Canadian and New Zealand Parliaments, although they are enthusiastic supporters, and the most learned minds in the United States. We should not be afraid of keeping such company. I believe that we should pursue the action set out in the amendment.
My Lords, I gathered that the noble Lord was coming to his conclusion. Since he put a question to me earlier I thought it better to allow him to develop his theme. I hope that I have not intervened too early in order to assist him and the House. The noble Lord asked me a particular question about Clause 50. I should not like the noble Lord to proceed on a misapprehension. Clause 50, which draws on the Geneva Conventions (Amendment) Act 1995, makes provision by Order in Council. The Delegated Powers and Deregulation Committee did not comment adversely on that and call for the affirmative resolution procedure. I do not want the noble Lord to proceed on an incorrect basis.
My Lords, that is a further disappointment and does not in any way impede me from uttering the final sentence of my speech. I propose that the opinion of your Lordships' House be tested upon this amendment.
My Lords, I shall be extremely brief. The purpose of the amendment is merely to back up the admirable sentiments expressed so vigorously by the noble Lord, Lord Shore, and my noble friend Lord Howell on the Front Bench, particularly what they have said about the reservations of the United States towards the proposed legislation and the establishment of the court.
The Government say that they are determined that Britain should be in the vanguard; they say that they are determined that Britain should be among the few; they say that Britain should be up there with those human rights-respecting countries, Zimbabwe and Iran, but take a different approach from the United States. It is not that we lack confidence in our Armed Forces, as was suggested, but we fear that there will be frivolous prosecutions and that unjustified accusations will be made. Before Ministers dismiss those fears, they should acknowledge more than they have done that they are strongly and widely held in the United States. As I said earlier, when I intervened in the speech of the noble Lord, Lord Shore, even President Clinton, who chose to ratify the statute at the very end of his presidency, said that it required amendment before there could be legislation in the United States Congress. There is strong opposition in the United States to what is proposed. John Bolton has been one of the fiercest and most outspoken opponents, but Mr Rumsfeld, the Secretary of Defense, Secretary of State Powell and Mr Wolfawitz have all expressed their fears. Senator Helms said that the measure will be dead on arrival if it arrives in the United States Senate.
I put it to the House that the United States and Britain are at the forefront of peacekeeping. When I said that in one of our earlier debates, I was rebuked and reminded of the efforts of Luxembourg and Israel in international peacekeeping. It seems to me that the difference between Luxembourg and Britain is as great as the difference between Britain and the United States. But we are the countries that are very much at risk. We cannot just dismiss the fears that have been expressed so widely in the United States. It is not just a question of a so-called "conservative" Congress, as has previously been alleged. There is very little democratic support for the measure.
My Lords, I am most grateful to the noble Lord for giving way. Is he suggesting that there is virtually universal anxiety in the United States about ratification? Has he by any chance seen the letter recently written by 10 presidents and past presidents of the American International Law Association declaring that the anxieties are simply based on misconceptions?
My Lords, I am sure that plenty of American lawyers are in favour of this; the same could be said of lawyers in this country. However, what we are worried about is the opinion of certain non-lawyers. I suggest to the noble and learned Lord that political opinion in the United States, including that expressed by the Democratic Party, is against this measure. It has received little support in Congress.
I know that I shall be told that not only are lawyers to some extent in favour--although I suspect that they are in a minority--but that, in the past, the United States has on occasion been conservative about ratifying international agreements. That seems rather irrelevant. What matters is that we consider the case on its merits; namely, whether American opinion on this is right or wrong today, not whether American opinion has been right or wrong in the past.
I believe that the arguments put forward by the noble Lord, Lord Shore, and by my noble friend on the Front Bench deserve serious consideration. I wish that the Government would acknowledge that widespread fears have been expressed in the United States, both in the administration and in political circles generally. For that reason, I think that it would be most unwise for the two leading countries in peacekeeping to go along with this proposal until either the United States has--as has been suggested by President Clinton--secured certain changes, or something is produced along the lines suggested by the noble Lord, Lord Shore. I beg to move.
My Lords, I am bound to say that the doctrine which has been enunciated by the noble Lord, Lord Lamont, is a doctrine of despair. He is saying that the United States, whether it is right or wrong, should be followed. That is not a doctrine that I am prepared to accept. I am surprised that such a suggestion should have come from his lips. The noble Lord has not always supported the United States. To argue, as he does, that the United States should be followed regardless of the argument is not appreciated by this House and is, as I have said, a doctrine of despair.
I hope that the noble Lord will not pursue his logic and seek to divide the House. We have heard the argument put forward by my noble friend Lord Shore. As always, he has been engagingly articulate on a subject about which he is deeply concerned. However, having followed its logic, we have now passed that argument. I hope, therefore, that the noble Lord, Lord Lamont, will not pursue his suggestion and seek to divide the House.
My Lords, one of the great charms of this House is that one can hear opinions expressed from all sides of the debate, including those which are eccentric. I am very much in favour of the expression of eccentric opinion. I hope that the noble Lord, Lord Lamont, will allow me to say that I regard the amendment before us as eccentric.
Above all, the noble Lord is someone who has stood for the political and legal sovereignty of this country. Above all, he is someone who has pointed to the danger of intrusions upon sovereignty from the European Union. One cannot imagine ever seeing an amendment tabled in his name indicating that we should not ratify this or any other treaty until Germany or France had done so. Indeed, on a previous occasion I think that the noble Lord referred to France in slightly pejorative terms. However, we have before us an amendment which indicates that, as an independent sovereign state engaged in deciding on the best interests of this country in the world community, we should not ratify this treaty unless and until the United States of America has done so.
I owe an enormous amount to the political and legal traditions of the United States. I studied at Harvard Law School for two years, learning at the feet of Henry Kissinger, among others. But I cannot imagine that the values of Senator Jesse Helms should influence us when deciding what is best for this country within the world community. Furthermore, the United States has a proud and honourable record of compliance with international treaty obligations, of upholding the rule of law, and of upholding due process.
There are many in the American legal community who would agree with the noble Lord, Lord Lamont, but there are also many in that community who would disagree with him. The same applies politically. Small "c" conservatives are not to be found only in the Republican Party; that position is not confined to either side of politics in the United States.
It is my respectful view that it makes no sense whatever for us to reach a decision on the ratification of an international treaty on the basis of what some other state decides it should or should not do. I agree that it is essential to the future of the ICC Statute that the United States should adhere to it as soon as that is possible. Furthermore, I agree that we should take every step we can to encourage our American friends and close allies to do so. Indeed, I am sufficiently optimistic about human nature to believe that, just as the United States eventually ratified the genocide convention, despite opposition from the likes of Senator Helms and his predecessor, Senator Bricker, the United States will, in due course, be reassured.
I have looked at the American objections one by one. They have been set out clearly in a helpful paper from the Medical Foundation for the Care of Victims of Torture. With great respect, I do not believe those objections to be well founded.
My Lords, perhaps I may put a brief question to the Minister. If the Americans require amendments to be made before they will ratify the treaty, the treaty will then operate under a joint command. At that point, they will operate under an amended treaty while we will operate under this one. Will the fact that, in effect, two different treaties have been signed, produce a conflict of interest?
My Lords, I believe that the noble Earl may have addressed his question to me. I do not think that the United States would be allowed to pick and choose. Like every other state in the world, it would have to accept without reservation the international obligations set out in the treaty. The same would apply to the Republic of India, which is another great democracy, and to the state of Israel. There are also many states that are not democracies at all and which have refused to sign and will not ratify the treaty. All nations will have to reach their own judgments. I understand that in the cases of India and Israel, both have problems to be faced. The same may be true of the United States. However, one hopes that, in the end, they will be able to follow suit.
My Lords, my noble friend Lord Lamont has done the House a service in moving this amendment. It has enabled us to focus on the position of the United States for reasons that I touched on when speaking to an earlier amendment. I agree with the noble Lord, Lord Lester, that the participation of the United States is much to be desired and encouraged.
Perhaps I may say to the noble Lord, Lord Clinton-Davis, who speaks with great sincerity, that, with respect, what my noble friend Lord Lamont is saying is not a doctrine of despair but rather a doctrine of positive encouragement. It is possible that we shall be able to bring the United States into this great scheme. As the noble and learned Lord, Lord Archer of Sandwell, reminded us, certain senior lawyers in the American Bar Association believe that this is the right way to go. Unfortunately, however, there are certain very senior people, ranging right across the political spectrum and at the highest legal levels in the United States--regardless of whether they are Clinton or Republican appointees--who believe that the statute is seriously flawed. I do not think that that opinion can be laid entirely at the feet of Senator Jesse Helms. I do not want to be disrespectful to him, but it must be said that he is generally perceived as representing one wing of politics. It is neither fair nor accurate to suggest that all opposition to the measure has emanated from him.
The previous American president, President Clinton, stated that:
"In signing"-- he authorised that just before the end of his presidential term--
"we are not abandoning our concerns about significant flaws in the treaty".
The president referred to "significant flaws", but the presentation offered to this House has been one that suggests that this is a treaty that we must sign lock, stock and barrel; that we have to sign up to the whole statute because it cannot be changed; and that the Bill before us must therefore mirror, reflect and emulate the statute as closely as possible. Personally, I do not believe that that doctrine is accurate. I believe that later we shall see that other countries have not followed that course.
The expression "significant flaws" was a strong phrase for the then American president to use. To dismiss that or to say that it is not well founded suggests a leap of faith that I for one would not necessarily wish to follow. I believe that the United States can be brought along if we are careful and if we do not dismiss its concerns as being merely arrogant or isolated. We must recognise that it has been worried all along, even though it negotiated fully in the earlier meetings that informed the drafting of the Rome Statute. At the end of 1998, one of the notes that it sent to the Secretary-General stated that it was profoundly worried that the correction procedures for amending the then draft Rome Statute were not being properly followed in accordance with normal procedures on these occasions.
With regard to the flaws in the treaty, there are many areas where wise support of the project leads one to be very careful about dismissing the views of the highest Americans and says instead that we should proceed with the greatest of care and make our own points--without going back over the previous amendment--and put down our own declarations about how we wish to go forward.
That is the way to encourage the Americans to come along. That would be the greatest possible asset that those who genuinely have the interests of this project at heart could contribute in this place. My noble friend has therefore done us a service in enabling us to look at the amendment and discuss the central position of the Americans.
My Lords, I viewed the amendment with a little surprise and disappointment. I was tempted in reply simply to say that I agreed wholeheartedly with the comments made by my noble friend Lord Clinton-Davis and by the noble Lord, Lord Lester, and to say no more. But that would not do justice to the issues that the noble Lord, Lord Lamont, has raised.
Perhaps I may say straightaway that we have the greatest respect for our American partners. They have been with us in many times of trouble. We take their important views very seriously. But I remind the House that our American partners are now in the same position as Zimbabwe and Iran. They too have signed but not ratified the statute. I am sure that the noble Lord would not suggest that we should await the ratification of it by either of those two states before we independently come to our own judgment.
This House is a House of Parliament in Britain. The Members of the other place were voted into government by the people of this country--and it is our decisions, our views and our debate which is the most important.
If, in the past, we had adopted the surprising and somewhat unusual approach advocated by the noble Lord, Lord Lamont, we would not have ratified the Convention on the Rights of the Child, the Ottawa Convention on Anti-Personnel Landmines, the Additional Protocol to the Geneva Convention of 1997, or the Geneva Convention on the Law of the Sea. We would have had to wait a great many years to ratify the genocide convention. Therefore, that is not a position that attracts Her Majesty's Government. I am sure that when a different administration were in power, they would not have attracted noble Lords who now sit opposite and form part of her Majesty's Loyal Opposition.
Many noble Lords have spoken with great passion about the independence of this country. Therefore, it is with some surprise and no little disappointment that I listened to the matters now being advocated by some of the same noble Lords. It is right to say that opinion in the United States is not as clear cut as the noble Lord, Lord Lamont, seeks to suggest. There is a good deal of discussion and debate. I hope that the noble Lord will forgive me for also belonging to that somewhat ill-fated profession of lawyers, and saying that lawyers, too, have the ability to look at what is in their national interests. As has been stated, many lawyers in America have said very clearly that they are concerned that the United States has chosen to drag its feet in relation to the matter. We hope that we shall encourage it to change and see the benefits of the negotiations in which it participated to make the statute as good as it now appears to be, balancing--
My Lords, I thank my noble friend for giving way. Does she agree that when what has been put forward by 10 of the most distinguished lawyers in America is that the opposition is based on a misconception of international law, it is something which perhaps should be taken seriously?
My Lords, I respectfully agree. But I would invite the noble Lord not to press this matter to a Division, not to surrender our sovereignty, and in doing so to say that this is not an appropriate matter for Her Majesty's Government.
My Lords, I am very sorry to have caused so much hand-wringing and to have disappointed the Minister. She was speaking with such sorrow and was disappointed in my approach. I have no intention of putting this matter to the vote. As the House well understands, I wanted to raise the issues that have been seriously put by the United States. The matter has nothing whatever to do with sovereignty. That really is a nonsensical argument; talk about the word "eccentric"" It is completely illogical to say that in one instance we should follow an example of another country voluntarily, through our own Parliament in a matter that is for our own free decision. What that has to do with all the other conventions and following the Americans, I simply cannot see. I am surprised that the Foreign Office could not come up with something better to put in the Minister's brief because that really does not follow. I have no intention of pressing the matter to a vote. I beg leave to withdraw my amendment.
This is a technical amendment. As a consequence of the changes made to Clause 5 on Report, I regret that a minor drafting error has occurred in Clause 12(4)(b). The intention is that, like the competent court, a higher court which hears an application for habeas corpus will be able to issue a declaration if it determines that the person's rights have not been respected. That declaration shall be transmitted to the ICC.
As it presently reads, subsections (4) to (8) of Clause 5 would apply to a court hearing an application for habeas corpus but not subsection (9), which provides for a declaration by the court to be passed to the ICC. The amendment would remedy that error. I beg to move.
My Lords, as Clause 51 stands, it is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime, but only if the act concerned is committed in England or Wales, or outside the United Kingdom by a UK national, a UK resident or a person subject to UK service jurisdiction.
On previous occasions, without success, we have tried to remove those restrictions. I do not propose to return to that general argument now. I deal with the limited case where the victim of a Rome Statute crime outside the United Kingdom is a British citizen. That is a point that I have raised on two occasions in the past without eliciting any response from the Minister on the Front Bench.
If a person who is alleged to have murdered a British citizen in the course of an internal armed conflict comes here and we cannot arrest him because we deliberately failed to take the power suggested in the amendment, the British people might find that very hard to understand or excuse. The Minister may say that if the evidence is good enough the ICC would, in any case, issue a warrant and the offender would be taken into custody following the procedures in Clause 2. But would that always be so?
Your Lordships may remember the case of Tharcisse Muvunyi, against whom the Rwanda Prosecutor-General said there was overwhelming evidence of his involvement in the genocide in Rwanda, and yet it was not until February 2000 that he was arrested and brought before a court in London, having lived here since March 1998. So it took nearly two years to get around to issuing an indictment. One must suppose that the International Criminal Court, with a great many more cases than either of the two existing tribunals, will not issue indictments more expeditiously than either of those tribunals have done in the past.
A few minutes ago the noble and learned Lord, Lord Williams of Mostyn, underlined the principle of complementarity; he said that only if the domestic jurisdiction is unable or unwilling to exercise its powers would the ICC come into play. I agree that the whole thrust of the legislation is that, wherever possible, the load should be taken off the shoulders of the international court and dealt with in the domestic jurisdictions of signatory states. It would be helpful to the ICC if this minor extension of our domestic jurisdiction were to be agreed.
In previous debates, I have mentioned the case of Mr Yunus Yosfiah, who was a special forces major at the time of the clandestine Indonesian invasion of East Timor, where he was commanding the unit that murdered five newsmen, including two Britons--Malcolm Rennie and Brian Peters--on 16th October 1975. Those journalists were in Balibo when the Indonesians arrived. An eye witness reported that the journalists were dressed unmistakably in civilian clothes; that they had painted an Australian flag on the wall of their house; and that it was perfectly obvious that they were not combatants. But when the Indonesian forces came into the town of Balibo they shot first Brian Peters and then, as the remainder of the journalists were frantically pointing at the Australian flag and shouting "Australians, Australians", the troops surrounded them and fired automatic weapons at them until they were all dead. The bodies were then burnt so as to remove the evidence, and only fragments of bone were handed over to the Australian authorities a few weeks later.
This Yosfiah spent a year in Britain at the Royal College of Defence Studies in 1989, as Hugh O'Shaughnessy revealed in the Independent in November 1995. We were unaware of his presence at that time, but imagine the outrage if it had become public knowledge that a foreign officer, who was an honoured guest of Her Majesty's Government, had murdered two Britons in cold blood some years earlier but could not be arrested in the United Kingdom for that crime. That would have been the situation then; we could merely have asked Mr Yosfiah to leave the country.
But suppose that all those events were transposed into the future. What will people say when they know that the failure to prosecute results from a deliberate omission by your Lordships and by the Government? Admittedly, these cases will be extremely rare, but they could become less so as time passes. We have more and more British civilians working as technicians, professionals, humanitarian workers and UN observers in situations of armed conflict such as Chechnya, the Balkans, Angola or Colombia.
From time to time, unfortunately, there may be murders of British civilians such as the three telecoms experts who were abducted in Chechnya in October 1998 and then brutally decapitated two months later. In that case, the Russian authorities say that they have arrested the killers. Nearly always, the government concerned would take responsibility for catching and prosecuting those who commit war crimes. But the whole purpose and rationale of the ICC is that sometimes it is the governments themselves or their agents who are guilty, as they were in East Timor, as I have mentioned.
The amendment envisages a very special set of circumstances: that a British citizen is the victim of a Rome Statute offence in some other country; that the authorities of that country are unwilling or unable to prosecute the perpetrator or that he is careful to stay outside their jurisdiction; that the ICC has not got around to issuing an indictment against the perpetrator; and that he comes within our jurisdiction. The case of Yunus Yosfiah shows that the combination is not impossible. I beg the Government to accept this small extension of our jurisdiction to deal with it. I beg to move.
My Lords, I agree with the noble Lord, Lord Avebury, that when British citizens are the victims of serious crime it is a matter of great concern to us all. However, it is the traditional legal position in the United Kingdom that our courts do not take jurisdiction on the basis of the nationality of the victim. For that reason, I must oppose the noble Lord's amendment.
We do not agree that there is a case for changing the general legal proposition in the case of ICC crimes. We do not wish to adopt a position where we are saying that there are different classes of victim; that justice should be done in a different way depending on the nationality of the victim. If a crime is committed against a British national overseas, we expect the country where the crime took place to investigate and prosecute. Occasionally we pursue this through our bilateral dialogue with the country concerned and occasionally we offer support in such an investigation.
But we consider that the proper place for the trial is in the country where the crime took place or the country of nationality of the accused. That is where the relevant evidence and witnesses will be most readily available and where the most swift, effective judicial process is likely to be achieved.
We also consider that the establishment of the ICC and the provisions in this Bill which incorporate ICC crimes into domestic law would not justify changing this policy. If anything, there is even less reason to take jurisdiction ourselves because, in the case that the state where the crime took place cannot investigate, we would refer that matter to the ICC to do so.
It is appropriate that I should say a word about Yunus Yosfiah. The noble Lord, Lord Avebury, has raised that case on a number of occasions. I should like to give a little of the history in order that there is a proper understanding of what happened.
At the time that Colonel Yosfiah attended the course in the United Kingdom, we were not aware of any allegations against him. I understand that it was several years afterwards that he was first linked with the Balibo incident. With the best will in the world, the United Kingdom authorities can act only when they have the knowledge to do so. From looking at the papers, it is clear that they did not have the knowledge at the time.
As was made clear at Report stage, in future, were such allegations to be made against people visiting this country, we would take it up with their state of nationality; they would be liable to extradition to a state which took jurisdiction over them; or we would surrender them to the ICC if it took jurisdiction. With that explanation, I hope that the noble Lord will not seek to press his amendment.
My Lords, I shall not seek to press the amendment to a Division. Now that the facts have become known, the Indonesian authorities have not pressed charges against Yunus Yosfiah, even though there is abundant eye-witness evidence of what happened in Balibo. It is common ground that Yunus Yosfiah was the major in command of the 300 troops who invaded that town and committed that atrocity. Therefore the assumption that the Minister is making, that we can always rely on other governments to prosecute their own citizens when we call their attention to crimes committed against Britons in their jurisdiction, is not justified. The amendment I propose would provide us with a fallback.
As I said, it would be very rare, were we to appeal to those countries to prosecute those who had killed or committed other war crimes against British citizens, that they would fail to exercise their power to do so. I recognise that in only one case in a million should we have a Yunus Yosfiah in this country, know that he had committed such acts and be able to prosecute him in our courts. Nevertheless, I am disappointed that the noble Baroness has not given me a more forthcoming reply at this stage.
I do not, however, feel able to press the matter to a Division. In the circumstances, I beg leave to withdraw the amendment.
moved Amendment No. 6:
Page 32, line 30, leave out from ("or") to ("that") in line 31, and insert ("wantonly or recklessly disregarded information that clearly indicated,").
My Lords, this amendment seeks to remove certain words from Clause 65 and to insert certain others. We are dealing with the degree of protection, the height of the threshold of protection, for commanders and their superiors in regard to whether, when going about their legitimate business having intentionally made use of force, they have committed or laid themselves open to a charge of having committed an ICC crime.
The problem is one of subjectivity, as we have found throughout the passage of the Bill. It is easy to say with hindsight that a commander should have known at the time what was happening. The questions hang in the air. What is the test? What is he supposed to have known? How should he have known it? Under the Bill as drafted, the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event by the investigatory branch and the prosecutor of the International Criminal Court, assuming that the state is unwilling to make its own investigations.
The Government have repeatedly argued that any higher test, any raising of the threshold to protect members of the Armed Forces from vexatious prosecutions is not necessary. We moved amendments in Committee and on Report that would have corrected the position, and we continue to seek the protection of the Armed Forces, as we have done throughout the passage of the Bill. The wording of the amendment is already incorporated in the legislation of Canada. In our view, after taking careful legal advice, the wording in the amendment would give British Armed Forces a greater level of protection in line with that found in Canada.
Before referring to the Canadian example in more detail, perhaps I may deal with another aspect; namely, the argument used in varying forms in Committee and on Report that none of this is necessary because it is all in Part III the Manual of Military Law and in the Rules of Engagement; therefore, soldiers have always operated under these conditions and there is nothing new.
Apart from the point that I have made ad nauseam, and it would almost certainly plead tedium if I were to repeat it, there is something new. Military commanders will have a new legal jurisdiction with which to contend. Apart from that, there is the question of whether the Manual of Military Law really can be said to inform, now or in the future, members of the Armed Forces who are operating under conditions of intense stress in the complex conditions of modern low-intensity warfare and peacekeeping. The noble Lord, Lord Lester, has been diligent in calling our attention to these matters. Part III of the manual states:
"The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime, and if he fails to use the means at his disposal to ensure compliance with the laws of war".
So it could be said that, although there is the new jurisdiction, which is a higher level of argument, at least it was known that these were war crimes.
The question is whether Part III of the Manual of Military Law is, or ever was, adequate provision for soldiers fighting in a war. I understand that it has long since been replaced by a new format and I am not sure that the words appear in that form. I understand that, anyway, Part III of the manual is now out of print, so it is not much help to soldiers in difficulties in the Balkans or wherever they may be as they work out whether they are additionally exposed to some charge that--although they are fulfilling their duty by their own likes and by the likes of their commanding officer, and fulfilling the policy of their government--they may nevertheless be committing an ICC crime. Those are the first points that I want to make about the reason why we are seeking more protection, because I do not think that on that score alone the protection is there.
The broader question I want to examine is raised by the way in which the Canadians have handled this matter. The plain fact is that the Canadians have altered the wording. Therefore, the proposition that this Bill had to reflect verbatim the words of the statute is not an imperative; it is simply a policy wish on the part of the Government. That ought to be made clear. If it is, one is entitled to ask why. The Canadians have managed to get different words on to the statute book because they wished to have a higher level of protection for their own armed forces carrying out their duties.
So the question is this: if the Canadians can change the wording, why cannot we? Is the Canadian statute inconsistent with the Rome Statute? It is not as though Canada is one of the renegade states that have merely signed on for the ride and do not really support the whole project. On the contrary, Canada has been zealous and to the fore in promoting the ideas of the International Criminal Court; its lawyers and statesmen have worked extremely hard to do so. Canada is a very important signatory. Therefore, I should like a better answer to that question than I received on Report. If the Canadians can do it, why cannot we; and why do we not want to protect our commanders and their superiors in the way the Canadians do?
Finally, perhaps I may ask a rather narrower question, but on the same point. Will the Minister who is to reply confirm that, should our amendment fail, Clause 65 as drafted requires specific intent to be proved? I am moving into deep legal waters, but that is clearly the position as it is expected to stand unless amended in some way by the Bill. If it is the intention that specific intent has to be proved, could some kind of explanatory memorandum be provided along with the other publicity about which we know very little that will be provided to commanding officers and armed troops so that they know the score and know the new conditions under which they are potentially operating?
If the answer is that this is not a "specific intent" offence, then we are in quite different territory. That would be a definite signal that a lower test is being adopted which will deprive our commanders of a necessary safeguard and which in effect appears to rewrite English criminal law.
So clarification is needed on some important questions which were not clarified earlier. We need the matter to be crystal clear if we are, in fairness, to provide the right context in which not only can the court go forward, but our Armed Forces, going about their duty as servants of the state, can proceed without finding that unwittingly or unfairly they have committed an offence under a new law and perpetrated a new crime. I beg to move.
My Lords, Article 28 of the ICC Statute provides as follows:
"A military commander"--
I shall leave out unnecessary words--
"shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be"--
I emphasise the following words--
"as a result of his failure to exercise control properly over such forces, where
(i) That military commander"-- again, I emphasise the following words--
"either knew or, owing to the circumstances at the time, should have known, that the forces were committing or were about to commit such crimes; and
(ii) That military commander ... failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".
The mental element required is knowledge or what in English criminal law would amount to recklessness or criminal negligence. That accords with the position described in paragraph 63l of the British Manual of Military Law for 1958 which the noble Lord, Lord Howell of Guildford, cited. It also accords with the position in the US Department of Army Field Manual 27-10 of 1956 on the law of land warfare--the chapter on "Remedies for Violations of International Law"--which, in paragraph 499, says:
"The term 'war crime' is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime".
Thereafter, in paragraph 501, it uses the very words that appear in the equivalent section of our manual that I understand was amended by Sir Hersch Lauterpacht, Colonel Gerald Draper and Joyce Gutteridge in 1958. So, on both sides of the Atlantic, we have exactly the same concept put into the military manuals on the laws of war dealing with this matter.
The noble Lord, Lord Howell of Guildford, is quite right to say that it is not enough to rely upon manuals issued to members of the Armed Forces. Of course, one of the merits of Clause 65(2) and of Article 28 is that this will now become the law of the land in a much clearer way than simply incorporating it into military manuals.
Amendment No. 6 would introduce a more restrictive test than is needed to establish liability as a matter of current English law--I emphasise "current English law"--and as a matter of current international law because the test that it would introduce is wanton or reckless disregard of information clearly indicating that the forces were committing, or were about to commit, such crimes.
Amendment No. 6 is more restrictive in requiring either "wanton" disregard or "reckless" disregard of information clearly indicating,
"that the forces were committing or about to commit such offences", unlike the position in English law and in international law--I shall be corrected by the noble and learned Lord the Attorney-General if I am wrong--where criminal knowledge means awareness that a circumstance exists, or a consequence will occur, in the ordinary course of events (a view reflected in paragraph (3) of Article 30 of the ICC Statute), and where the court has regard to all relevant circumstances, including what the British and American manuals refer to as knowledge not only through reports received by the commander but also through other means.
I should point out that those principles were fully reflected in the judgments of the majority of the justices--and of the dissenting minority, Justice Murphy--in the case of Yamashita, which we have discussed previously and in respect of which I have made it clear that I should have been for the minority, not the majority.
There is a misunderstanding about the position in Canada that I must correct. The test of Amendment No. 6 is more restrictive than the one adopted in Canada in the legislation giving effect to the ICC Statute, where either knowledge or criminal negligence in failing to know is required, as set out in Section 7(1) of the crimes against humanity and war crimes legislation of 2000, which I shall not read into the record unless any noble Lord is misguided enough to ask me to do so. I summarise what the Canadian legislation does: it does not rewrite the ICC statute. It incorporates into the equivalent Canadian concept of criminal law what is contained in Article 28 of the ICC Statute.
The New Zealanders have used the same approach as that contained in this Bill: they copy the language word for word into the New Zealand statute. The Canadians have used the concept of criminal negligence rather than doing it in that way, but it comes to exactly the same thing. The degree of knowledge is exactly the same. No specific intent is required in the sense of the specific intent for the crime of murder, but criminal negligence or recklessness is required if all the other ingredients are satisfied.
For those reasons we should be opposed to an amendment that would be retrograde. It would actually dilute criminal responsibility in this area, as it has been incorporated into English law and international law since the time when I had the privilege of doing two years' national service. We are therefore opposed to the amendment.
My Lords, I should like to support the amendment moved by my noble friend Lord Howell which I believe is designed to give added protection to British forces as regards the question of whether "intent" was involved in an alleged war crime. I should like the Minister to reply to one particular point. I have in mind the wording in Clause 65, which my noble friend's amendment seeks to amend. Can the Minister say how she would interpret that wording when applied to the question of the NATO bombing of the Chinese embassy in Belgrade?
Obviously one accepts that it was an accident, but, equally, the bombing of civilians and of an embassy is an offence under the Bill. That is very relevant to the question of "should have known", the phrase used in the Bill, because the explanation that was offered for the bombing was, first, that an out-of-date map had been used. The second explanation, as reported in newspapers, was that the CIA had intended to hit the arms agency rather than the Chinese embassy, but had no numbers for the street in question. Therefore, those concerned had merely transferred the street numbering from a parallel street and applied it to the one in which the embassy was situated. Either way, it was clearly an error and, according to many sources, the embassy was marked unambiguously on maps.
Indeed, I have a note with me of a CIA spokesman saying that they had not bothered to locate where the Chinese embassy was because they were not trying to hit it. Of course, that is but one explanation. I should like to know quite how that fits in with the wording that a military commander "should have known" that the forces were about to commit an offence. Plainly, that could be argued to be an offence under the Bill. Can the Minister say what we would be able to plead in defence of NATO troops?
My Lords, I declare an interest as I am a serving officer in the Territorial Army, Therefore, I could, potentially, be affected by the Bill at some date in the future. Noble Lords will recall our debates at Report stage on the matter. My noble friend Lord Howell then referred to the Emperor Caligula and the poor promulgation of his laws.
The noble Lord, Lord Lester, said in reply to my noble friend,
"Is the noble Lord aware that in this case the words are not put on very tall pillars in very small writing so that citizens cannot read them? They are put into the handbook of military law, to which every serving member of the Armed Forces has access, as I well recall from personal experience".--[Official Report, 8/3/01; col. 367.]
This evening we have discussed the Manual of Military Law, Part III. I checked the validity of the noble Lord's reference to the 1958 version of the Manual of Military Law. I sought to follow the advice of the noble Lord at col. 432 on 8th March when he said that the Conservative Front Bench ought to check it. I tried to check it, but unfortunately I found that Part III of the Manual of Military Law is not held at unit level. Therefore, serving officers--
My Lords, I am grateful to the noble Earl for giving way. Will he accept that what I said referred to my rather inglorious period of military service--I think I made it clear--when I was a second lieutenant in the Royal Artillery and had access to the manual and had to read it at the time? I did not refer to the present position. I have no idea whether it is now available; I referred specifically to 1958.
My Lords, I just quoted the words of the noble Lord on Report when he said that present members of the Armed Forces can refer to the Manual of Military Law, particularly Part III in connection with land warfare.
I was not surprised to discover that the Manual of Military Law is not issued to units because, according to Amendment No. 20, Chapter 1, paragraph 8(b) of the Manual of Military Law, it is no longer printed. It states:
"The Manual of Military Law, Part III, deals with that part of international law known as the law of war on land and is now out of print".
My noble friend Lord Howell has already referred to that point. This goes to the heart of our concerns. Our officers and NCOs are expected to, and will, adhere to the Geneva Conventions and their principles. However, the noble Lord, Lord Lester, expects the members of our Armed Forces to be experts on the details of the law of armed conflict. I have spent more time studying health and safety and equal opportunities than I have studying the law of armed conflict. Is the noble Lord confident that the manual is available to all members of our Armed Forces? Will the Minister ensure that Part III is reprinted and distributed right down to sub-unit level in military units so that officers and senior NCOs can study the appropriate law?
My Lords, I reassure the noble Earl, Lord Attlee, that the manual is still held by all units, or should be. The part to which the noble Earl referred is currently out of print because it is being revised. However, I can certainly reassure the House that there has been, and will be, no significant change in relation to those matters.
My Lords, I shall certainly do that. However, I have been advised by the Ministry of Defence that the position I have just stated to the House is the correct one. Of course, we realise that sometimes not all units have what they are supposed to have. I do not know what the position is with regard to the noble Earl's unit but that is what I am advised should be the case.
My Lords, the answer remains the same. In relation to that matter, I reassure the House that there is no significant change envisaged as a result of the new Bill that we hope will be enacted in due course.
I turn to the point made by the noble Lord, Lord Lamont, as regards intentionally attacking civilian objects and the mistake that was made in relation to the bombing of the Chinese Embassy. However, that was clearly a mistake. It did not amount to a crime and it did not fall within the category of issue for criticism.
My Lords, of course I accept that it was a mistake. I accept that there was no intention to bomb the Chinese Embassy. However, the Bill uses the phrase, "should have known". That is what my query relates to. Surely one could argue that the NATO forces should have known where the Chinese Embassy was situated. That is the whole point about maps and having it clearly marked.
My Lords, as regards the meaning of the phrase "should have known", what we are talking about is a neglect of the basic duty that a military commander has to ensure that those under his effective command and control do not commit war crimes. That principle has been summarised by the former head of the British Army Legal Services, Major General Anthony Rogers, in his book on the laws of war. It may assist the House if I quote from that book. It states:
"Responsibility may arise if war crimes are committed as a result of the commander's failure to discharge his duties either deliberately or by culpably or wilfully disregarding them, not caring whether this resulted in the commission of war crimes or not".
It does not refer to the circumstances that were involved in the incident at the Chinese Embassy; that is, a genuine mistake. The fact that that principle can be implemented in practice was shown in numerous war crimes cases which our judges, and those of our allies, dealt with in the aftermath of the Second World War.
My Lords, the noble Lord will know that subsection (2)(a) and (b) of Clause 65 are conjunctive. I shall read them to refresh the noble Lord's memory.
My Lords, I am grateful that the noble Lord says from a sedentary position that he has that. Therefore, I draw his attention to paragraph (b) which states:
"he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".
Both paragraphs (a) and (b) have to be proven. If we apply that test to the circumstances to which the noble Lord referred, he will see why the mistake that took place in the bombing of the Chinese Embassy does not fall within the section. The noble Lord, Lord Lester, has already dealt with the issues in relation to the test. Therefore, I shall not reiterate them but simply say that I agree with the noble Lord's assessment. I accept--
My Lords, I am sorry to intervene at this stage. I have listened with the greatest attention to what the noble Lord, Lord Lester, had to say. I think that I understood what he said. Is the position that whereas we chose to incorporate in our Bill the exact words of the ICC statute, the Canadian Government elected not to use those precise words but words which reflect in exactly the same way what is contained in the statute? If that be the case, have we not at least arrived at the point--which I think is a new point in our deliberations--that we do not actually have to put in our own legislation the exact words of the ICC statute and we can, if we think fit, amend the Bill to change the wording so long as the new wording does not depart from the intention of the ICC statute? If we have reached that point, we have moved our ground to some extent.
My Lords, it is right that I should explain what has happened in relation to the Canadians. It is indeed true that the Canadian legislation speaks of "criminally negligent in failing to know"; and that that is slightly different from the statute.
We understand from speaking to our Canadian colleagues that this language was introduced specifically in response to jurisprudence developed by the Canadian courts under their Charter of Rights and Freedoms. As the notion of "criminal negligence" has been thoroughly analysed by the courts in the light of their charter, the Canadian Government believed it preferable to use that language. However, they consider the test to be no different. That was only to ensure that the Canadian courts could accurately reflect what is contained already in the statute.
We are not in that disadvantageous position because we do not have the Canadian jurisprudence here in Britain. Therefore we do not need to change or alter the statute in any way. One of the difficulties is the issue of complementarity, as my noble and learned friend the Attorney-General said. One of the greatest protections we have for our Armed Forces is that British courts, British judges, will be trying these issues. Our servicemen and women will be subject to the British system and, if proven guilty of any of these issues, will be held responsible to British justice. That is our greatest protection for our armed servicemen and women.
We should like there to be no chink of light between the ICC Statute and our statute so that it cannot be said that our statute does not cover precisely the same ground as the ICC. The ICC will be deprived, therefore, of an opportunity to say that we have failed to comply. If they are suspected of doing something wrong, we wish to try our men and women ourselves. If we reflect precisely the wording of the statute, we limit the opportunity for our men and women to be subject to difficult situations and to deprive our courts and our judges of the opportunity to deal with them appropriately.
My Lords, it does indeed. Although we understand why, because of their particular situation, the Canadians have felt the need to do as they have, they run the risk of it being said that their approach is not precisely the same. One could argue that they leave a chink of light between the two systems: that they should not or could not deal with the matter appropriately. We do not wish to put our servicemen and women in that jeopardy. We wish to ensure that, if there is a difficulty, our courts, our judges, will have full responsibility to deal with it. By arranging our Bill to reflect precisely the language, we believe that we better protect our servicemen and women.
As the noble Lord, Lord Lester, said, the noble Lord, Lord Howell, is not correct in saying that the amendment he proposes is exactly the same as the Canadian legislation. Regrettably, it is not; it is materially different. We think that it would be disadvantageous to our servicemen and women.
The noble Lord, Lord Lester, said rightly that both issues are contained in the British Manual of Military Law which remains current to this day. The noble Lord was also right to say that it is reflected accurately in the US Department of Army Field Manual dating from 1956. So those issues are covered.
The concern of the noble Lord, Lord Howell, is that the ICC might seek to second guess the decision of a British military commander. The best protection we can give our Armed Forces is to make sure that the ICC has no chance to second guess any such decision. For that reason, Clause 65 is expressed in the way that it is.
We have a long history of behaving appropriately and properly. The term has been fully understood by the servicemen and women of this country. There has not been difficulty in that understanding. It is right to remind your Lordships that the Ministry of Defence was assiduous in its efforts in this regard and has taken every opportunity to ensure that the servicemen and women of this country are appropriately protected by this legislation.
"The priority of the Ministry of Defence in the drafting of the International Criminal Court Bill and its passage through Parliament has been to ensure that members of the armed forces are fully protected from malicious or ill-founded prosecution by the ICC. The armed forces have been closely involved in the consultation process. I am confident that the Bill before Parliament provides all necessary protection".--[Official Report, Commons, 16/3/01; 756W.]
I hope noble Lords will accept that the Secretary of State for Defence properly takes into account the trials and tribulations which the armed servicemen and women will face and properly gives consideration to what needs to be done to protect them. We have looked together at the definition of "should have known". We are confident that the steps which have been taken make clear the basis upon which the servicemen and women will be found responsible. Perhaps the clearest exposition of this principle was contained in the judgment of the Nuremberg Military Tribunal in trying members of the German High Command. It was stated:
"Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence".
It is a high standard which has been well established for some time.
This notion of criminal negligence can also be found in similar terms in Article 86 of the 1977 Additional Protocol I to the Geneva Conventions and in the statutes of the Yugoslav and Rwandan tribunals. The ICC and, by virtue of Clause 65(5), the British courts, if they needed to interpret the wording in question, would thus have recourse to the detailed and prudent jurisprudence of the Hague and Arusha tribunals as well as that from the trials of Nazi and Japanese war criminals.
I regret to say that the amendment of the noble Lord, Lord Howell, would go against this international practice. The amendment talks about wanton or reckless disregarding of information that clearly indicated that war crimes were being committed. This might leave serious gaps. What happens if the commander, in flagrant dereliction of his duty to prevent such crimes, did not ask for or read reports which talked about such crimes; or, if having read reports which spoke obliquely about massacres, he failed to request the additional information which would have made that plain?
We believe that we have made proper provision to protect our men and women, that our British courts will have the tools to give them that protection, and that we should support the international community in this praiseworthy attempt to bring all under the same umbrella. The noble Lord spoke earlier about significant changes. There have not been significant changes. Our servicemen and women are already bound by those rules. They already apply them and they have already demonstrated that the confidence that we have traditionally put in them is merited. There is no reason for us to feel anxiety on their behalf.
My Lords, I have listened carefully to the Minister's reassurances and the quotations that she has given from the Secretary of State and the Ministry of Defence to the effect that everything is fine and our Armed Forces are protected. The exchange arising from the fascinating intervention of my noble friend Lord Attlee about the publicity given to changes in military law was not reassuring. We are not sure what steps are being taken to ensure that simple explanations of such changes in the law will be available. They have to be simple, because they have to be interpreted in the heat of stressful situations. There is a yawning lacuna--perhaps lacunae do not yawn; I should say a yawning gap--between the recognition that something fairly substantial has changed and the knowledge and information that should be made available to our fighting forces in the conditions in which they daily find themselves having to making agonisingly difficult decisions. I repeat my objection to the constant claim that there is nothing new in what we are doing. I find the situation worrying. This is not the state in which I had hoped that we would leave the Bill before it passed to another place.
I listened with the greatest respect to the noble and learned Lord, Lord Lester, and to the Minister on whether the amendment would provide a better protection or a lower tripwire for commanding officers and superiors. The advice that I have received from Canadian legal authorities, who are deeply involved in trying to make their legislation work--there is no question of them trying to undermine it--is that, although they have found the need for changes to the wording and the wisdom to make them, there is no chink of light or deviation from the intents and purposes of the Rome Statute. They have made adjustments to suit their domestic law and conditions with which they feel comfortable. It is extraordinarily difficult to understand the doctrine, to which we have been subjected throughout the passage of the Bill, that we must be made to feel uncomfortable and that the verbatim copying of the Rome Statute into our law is necessary and will provide the best protection. There is room for two opinions on that. We have not two but 200 legal opinions on whether that is right. I suspect that those disputes will continue if and when the Bill passes into law.
My noble friend Lord Lamont mentioned the bombing of the Chinese Embassy. We all agree that it was a genuine mistake, but should such an event happen again--the provisions are not retrospective--and should the Chinese be signatories to the statute, the lingering question is whether they would think that it was a genuine mistake. The issue all along has been whether other parties who may not see things our way or the way of our allies are prepared to go to the independent prosecutor and say, "Whatever the British or Americans say, we think this was a crime". I think--I stand to be corrected--that the Chinese said that the Belgrade embassy bombing was a crime.
That will be the problem in the future. People who are not well motivated and do not see things our way will argue that actions that we would not dream of investigating as crimes were in fact crimes. The whole issue is very questionable and worrying. I do not wish to leave it unchallenged.
My noble friend Lord Waddington shrewdly put his finger on the fact that the Canadian example shows that modifications can be made, regardless of whether their wording or ours raises the threshold or keeps it where it is. In the interests of making the legislation work in our domestic jurisdiction and reassuring our people, the general public and the Armed Forces, some modifications are possible. The Minister has said yet again that they are not possible--or rather, that she does not wish them to take place and that any modifications would somehow reduce the protection for our Armed Forces. Not everyone in the Armed Forces accepts her argument.
In answer to a Question from an MP, the Secretary of State for Defence said that there had been no representations from the Armed Forces about the Bill and that he felt that the protection provided was full and secure. That contradicts the comments that appeared in many newspapers--not inspired by the Conservatives here or in the other place, but apparently coming from the high levels of the military forces--that there were considerable worries that were shared by the Armed Forces of other countries, particularly the United States.
At the end of Third Reading, we are still left with a feeling of considerable unease. For all those reasons, it would be right for me to test the opinion of the House.
had given notice of his intention to move Amendment No. 7:
Page 41, line 50, at end insert--
("(3) The Secretary of State may not make an order under this section until--
(a) the Government has made a declaration of its reservations about the observance of Article 8(b)(i), (ii), (iv), (xvii), (xviii), (xix) and (xxv) on War Crimes when the United Kingdom is exercising its right of self-defence and when its armed forces are being deployed to resist aggression committed against a fellow Member State of the United Nations, and
(b) that declaration has been submitted to, and approved by resolution of, both Houses of Parliament.").
My Lords, with the leave of the House, I want to say a word of appreciation for the valuable undertaking that has been given in relation to prisoners of war. That is due to the good offices of the noble and learned Lords, Lord Williams of Mostyn and Lord Archer of Sandwell, the officials at the Foreign and Commonwealth Office--
My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.--(Baroness Scotland of Asthal.)
My Lords, I apologise for having spoken at the wrong moment. I wanted to say a word of appreciation for the valuable concession that was made. It was entirely due to the good offices of three Members of this House: first, the noble and learned Lord, Lord Williams of Mostyn, who set up a meeting with officials from the Foreign and Commonwealth Office and the Home Office so that the matter could be considered in depth; secondly, the noble Baroness, Lady Scotland of Asthal, who evinced a personal sympathy towards this matter; and, thirdly, the noble and learned Lord, Lord Archer of Sandwell, who used his influence to ensure that a satisfactory arrangement was made in amity.
In fact, it comes to this: the Government have given an undertaking that, if there is any concern as to whether the regime affords adequate protection, oral representations from any quarter shall be taken into account, the inadequacies shall be highlighted and addressed, and the proposals to amend the regime shall be raised in all appropriate fora, including any review conference, and that they will closely watch the developing jurisprudence of the ICC. On behalf of all those of whom I have spoken, I should like to express my gratitude.
My Lords, it would be wrong not to reinforce very briefly the words of appreciation expressed by my noble friend Lord Campbell of Alloway about the way in which this Bill has progressed. I should also like to thank all noble Lords who have participated in the debate, the noble and learned Lord, Lord Williams of Mostyn, and the noble Baroness, Lady Scotland, as well as her ministerial advisers, for their support.
I observe that this is a global Bill, in the sense that parliaments and legislative experts all round the world have followed its progress and offered their own comments and views on it--a reminder that through this Bill we shall be participating in a global institution, with all the benefits and problems that that may involve.
I end by saying that I hope the Bill, because of its vast significance, will be debated fully in the other place. With those comments, I am happy to support the Motion that the Bill do now pass.
My Lords, it has been a great pleasure to take part in these memorable debates. I should like to pay tribute to the Minister and to the noble and learned Lord the Attorney-General not only for their learning, tact and commitment to the international rule of law but, above all, for their patience in listening to many speeches, from all sides of the House, scrutinising this Bill almost line by line. We on these Benches wish the Bill well. We hope that it will be speedily enacted in the other place in order that the Government, on behalf of the people of this country and those elsewhere in the world, may see us in the vanguard in bringing this important measure into full effect.
My Lords, lest some of us from the Government Back Benches be misconstrued, I rise to say that we congratulate the Government on having throughout been in the vanguard of international opinion and greatly enhancing the reputation of this country. We are grateful to both my noble friends on the Front Bench. We hope to see an early ratification of the Bill, and we wish it well.
My Lords, I should like to reciprocate those expressions of gratitude. Many noble Lords have worked very hard on this Bill. I thank and congratulate all those who participated in the meetings held prior to the proceedings in the House. We give this Bill our very best wishes. It should significantly change the course of history.
On Question, Bill passed, and sent to the Commons.