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Mr. Andrew Rowe (Faversham and Mid-Kent): I am listening carefully to what the hon. Gentleman has to say and I derive from it the comforting thought that, possibly under the new court, we shall depart from the principle that war criminals are always thrown up by the losers, but seldom by the victors. Does he share my budding optimism?

Mr. Mackinlay: That is absolutely correct. It leads me, very appropriately, to a matter that the shadow Foreign Secretary and my right hon. Friend the Foreign Secretary debated. With the greatest of courtesy, I think that both did not so much get it wrong as miss the point.

The shadow Foreign Secretary kept coaxing my right hon. Friend to give an undertaking to reassure those whom he described as our senior military officers--he did not name them--that British soldiers would never be brought before the court. I was somewhat disappointed that my right hon. Friend said that there is no need to make such a declaration as a codicil to our ratification, claiming that it simply would not happen. In a way, that is wrong and slightly foolish. It is wrong because, if we are confident about our position, we should ultimately be prepared to be tested by institutions by which we expect everyone else to abide.

I could cite recent cases, but that might create controversy, so I shall give two historical examples: the massacre at Amritsar, which most people recognise was wholly unjustified, was carried out on the orders of British officers, and no prosecution in the British courts followed the sacking of Cork city by Crown forces 80 years ago. If an international court or institution had existed then, it could have said to the United Kingdom Government, "You have failed, for political reasons, to recognise that Crown forces engaged in wrongdoing. If we have the opportunity, we shall arraign those responsible before the International Criminal Court."

Those examples show why the United States is unhappy about the court. The massacre at My Lai, in which Lieutenant Calley ordered and committed such atrocious murders, is within the memory of every Member

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in the Chamber. Although he went through some form of trial in the United States following massive public pressure, it became a charade. We must recognise that even in what we consider to be proud democracies with good court structures, people sometimes fail for political reasons.

We can never say that we will always be able to do that which is right. Therefore, we should submit ourselves to the international court, recognising that, even in our case, politicians, generals or subordinate officers could be subject to it in extreme circumstances, and rightly so.

Mr. Brazier: The hon. Gentleman takes considerable interest in the armed forces. When people put on the Queen's uniform, they accept obedience to their civilian masters. If someone is answerable to a British court martial, he is tried by his peers--people who understand the pressures that he was under. If he goes before a jury, he is tried by his civilian peers. The point about the international court is that legal specialists with no military experience will be able to second-guess a British legal investigative process that may have concluded that neither of those two forums would ever have convicted the man.

Mr. Mackinlay: The point is that the veracity of our courts martial system must be subject to a litmus test of fairness. If we have in place some pretty good ground rules for courts martial, the International Criminal Court will not come banging on the door of the Foreign Secretary or the Secretary of State for Defence, saying, "We want this officer." We would be able to show that matters were being thoroughly pursued and prosecuted and that appropriate sentences would be passed.

Mr. Blunt: That is an extremely important point. The hon. Gentleman refers to a test that must be satisfied and what he considers to be the entirely reasonable actions of our courts martial. He described as a charade the trial of the officer involved at My Lai. I am sure that that was not the view in the United States. Judges will be elected by a majority following a secret ballot of the states that are parties to the convention, and their view of what is a charade or a fair trial may be different from his.

Mr. Mackinlay: In the My Lai example, it is generally held that the court proceedings, the decisions and the executive action of the President of the United States were perverse: the President of the United States--under executive action, not judicial authority--allowed the guy to go home. Clearly, that would not be permissible, and the beauty of the ICC is that it would counteract the judgment of Presidents or Prime Ministers in acting so wrongly.

That leads me to my next point, which was not discussed by the shadow Foreign Secretary and my right hon. Friend the Foreign Secretary. The historical importance of the legislation will relate not so much to the commander in the field as to Presidents, Prime Ministers, Foreign Ministers and Defence Ministers, who will have to pay regard to proportionality. The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) referred to the use of atomic weapons, but nothing will be changed by the measure. Surely we believe that regard should always be paid to proportionality.

My hon. Friend the Member for Linlithgow (Mr. Dalyell), who is not in his place, has been exercised about the Falklands conflict. I do not always agree with

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either his historical analysis or his conclusions, but I remember him probing on an unanswered question. Had the aircraft carrier gone down in the South Atlantic, Prime Minister Thatcher would have faced political and military defeat and it has been suggested that using battlefield nuclear weapons on Punta Arenas against Argentina was at least contemplated. I do not want to debate whether that necessarily happened, but some good people think that the possibility was at least explored.

That is where the legislation is important. It will temper the ability of Prime Ministers to use weapons out of all proportion and scale to the situation to save their political bacon. Its long-term effect will be to make people exercise their political views much more cautiously when committing armed forces to conflict.

Mr. Gerald Howarth: If the Bill is enacted, might not a sword hang over a future British Prime Minister? Might not that Prime Minister hesitate before deploying weapons that could protect British troops' lives? Surely the first responsibility of Members of Parliament is to protect our troops, whom we send into battle on our behalf.

Mr. Mackinlay: That has always been so. At present, mercifully, our Governments--Labour and Conservative--have regard to the existing rules of war. If we took the hon. Gentleman's argument, if I can term it thus--he advanced it in the form of a question--to its logical conclusion, we would not agree to existing Geneva conventions and codes of war.

We are, after all, merely building on an arrangement that already exists. We are talking about something that is fragile and inadequate, but we are adding an extra building block to the conduct of international relations and the conduct of war, while reminding politicians and commanders that they must have regard to proportionality. Of course there will always be collateral damage--innocent people will be killed in any war--but politicians and commanders must have greater regard, or at least continuing regard, to balance.

I am surprised that one matter has not been raised--I shall raise it now. I recognise that no easy decisions were involved in the controversial area of the bombing of Dresden, and Nuremberg. Historians will debate the issues for decades. It could clearly be argued that there were military objectives for the bombing and overriding reasons for it to happen, and it is equally clear that many people take the opposite view, but I do not believe that the head of Bomber Command or Winston Churchill could or would have been brought before the international court, because it was obviously a grey area. We are talking about despots, who will use weapons of mass destruction--or genocide--without regard to what represents at least some semblance of justification in terms of the war objective.

Mr. Howarth rose--

Mr. Blunt rose--

Mr. Mackinlay: I shall give way to the hon. Member for Aldershot (Mr. Howarth) first, and then give way to his commander.

Mr. Howarth: I am grateful to the hon. Gentleman.

The hon. Gentleman says that he dismisses out of hand the idea that the court might have indicted Sir Arthur Harris or Winston Churchill: he says that it is

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inconceivable that it would have done so in the circumstances. I put it to him, however, that he cannot give the House, our armed forces and the people of this country that absolute certainty, because the court will have a life and a momentum of its own.

Mr. Mackinlay: I can tell the hon. Gentleman and the House that if the had legislation existed, Bomber Harris, Winston Churchill and other commanders would simply have had to contemplate a bit earlier in order to feel confident that, if challenged, they could advance a justification for what had been a very painful decision. We are, as it were, cautioning politicians and commanders that they must take account of certain considerations.

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