International Criminal Court Bill [Lords]

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Mr. Maclennan: Will the hon. Gentleman clarify his comments? Was he speaking of nuclear weapons alone, or of methods of war that a commanding officer might deem necessary to achieve his military ends? It sounded as though he was referring to the latter situation. If that is the case, it appears that he is claiming that the laws of war should not constrain British troops, and few service men would subscribe to that view.

Mr. Howarth: The right hon. Gentleman might have misunderstood me. I was referring to actions taken by British troops that are fully authorised by the Government of the day. I was not thinking only of nuclear weapons, although their use provides the most obvious example of the type of military attack that I had in mind. The effects of the bombs that were dropped on Hiroshima and Nagasaki make it clear that it is almost impossible to deploy nuclear weapons without incurring civilian casualties and considerable environmental damage.

Mr. Maclennan: The hon. Gentleman is getting into very dangerous waters. He appears to be suggesting that if the Government authorises a particular form of warfare, it must be justified, regardless of the laws of war. That doctrine was rejected at the Nuremburg trials, and in particular with respect to the Ardeatine cave massacre, when the Berlin Government authorised—indeed, instructed—the shooting of many Italian hostages to slow down the German army's defeat in Italy. The perpetrators of that massacre were hanged. In my judgment, that was a reasonable punishment for the crime.

I think it unlikely that a British Government would similarly transgress the laws of war, but if they were to do so, I fail to see any valid argument for not subjecting them to the arbitrament of justice.

Mr. Howarth: I would understand and share the right hon. Gentleman's strength of feeling if British troops were to commit war atrocities, such as those that are set out in article 8, which include torturing captives and forcing them to fight on our side against their own people.

However, my point is that Ministers keep assuring us that the court will not apply to us. In the other place, Baroness Scotland reassured Lord Shore by stating that

    ``The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.]

I can foresee a case in which that might happen and have tried to give an example—perhaps, thank God, it is an extreme example because it does not look as though nuclear weapons will be resorted to in the foreseeable future. It was thanks to the previous Government that we maintained a strong nuclear defence, which ensured that such a situation did not occur. It could arise, however, in other circumstances—recent examples are the bombing of Belgrade and the Chinese embassy. Is a radio station a military target if it contains only civilians but is pumping out military intelligence information? We may think it justified to bomb such a target, whereas the court may take a different view. What happens then? Can we rely on the assurance of Baroness Scotland?

I conclude by referring to the important remarks made by Lord Shore during the same debate. He was involved in the second world war and mentioned the two categories of war to which my noble friend Lord Tebbit referred. Lord Shore said:

    ``But there is also a third category—all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.'' —[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 361.]

The Committee must bear in mind the fact that if we are not to hobble our troops and put them at additional unjustified risk, and if we are to protect the interests of our country, we must foresee the possibility of the court saying that this country has been unwilling to take action although we believe that it would be inappropriate for our national courts to do so. In such circumstances we must provide maximum protection to our troops.

Mr. Battle: This is the 21st Standing Committee on which I have served, and occasionally the Committee has risen to the debate. The Opposition's amendments have cut to the heart of some serious concerns and questions, and I thank them for that. We have not frivolously wasted time, but have tried to get to grips with serious issues. The right hon. Member for Caithness, Sutherland and Easter Ross made an eloquent, telling and passionate intervention, and his commitment to the Bill is second to none. No one would dismiss him as a dewy-eyed, young idealist. He may be an idealist, but everyone would respect him as a man of practical reason, whose experience and wisdom is worth listening to.

The right hon. Gentleman said that our aim should be to strengthen deterrence. We hope that the court will not be used, but act as an international deterrent. He argued that an international institution, such as the one that we are trying to build, will do more to meet that aim than can any individual nation state. I agree with him and hope that that will be the banner behind which we consider and support the Bill and carry it through in practice.

The right hon. Gentleman said that we should not invoke the doctrine of unripe time. I think that he was saying that we cannot defer matters for ever until we find the perfect statute that all other countries in the world have signed and then agree to join it. We do not have the luxury of being in that position. We should be putting in place a deterrent—I would hope a preventive measure—which is backed up by argument. At one point, I nearly leapt up to intervene in his speech. It may amuse other members of the Committee to know that in my mis-spent youth I studied the works of the medieval theologian, Thomas Aquinas, who was reinterpreting Aristotle on the just war. He tried to argue the role of reason against the use of force. He suggested that reason could overcome force and that we should not accept the view that might is always right. He implied that human beings together could in a reasonable way transcend violence. That is what the Bill is about.

I am sure that we all agree with the hon. Member for Aldershot (Mr. Howarth) that we should not pass measures into legislation that will imperil our armed forces. I do not always agree with him, but his sudden enthusiasm for the French is rather strange and surprising, and most welcome. He rightly said that definitions of the crimes will be considered later in the Bill under schedule 8. As usual, we are debating in the middle of the Bill measures that will be tabled as Opposition amendments in later proceedings.

6.30 pm

I shall do my best to reply to the arguments advanced in favour of the three new clauses. We shall continue to emphasise that we are determined to ensure that our armed forces are protected properly under law. That is the case in Britain and we want it to continue ad infinitum. I reiterate that the Government have never intended to take out the seven-year opt out on war crimes provided under article 124 of the Rome statute. There is no need to do so. To use a parliamentary and legal word, we are ``content'' with the definition of war crimes under the statute. We do not need to prepare ourselves to accept them, as the French suggested that they did. They are crimes under international law by which our military are already bound.

I am sure that the Committee agrees with the principle that we condemn war crimes and believes that those who commit them should be punished. We should not exempt ourselves from that. If we decide not to be bound by the war crimes provisions, we shall weaken the case internationally when condemning war crimes committed by other states. The right hon. Member for Caithness, Sutherland and Easter Ross made a telling intervention. I hope that the argument was not being advanced for exemption from the rules of war, because our armed forces sign up to such rules and know what they are dealing with. We know that war is nasty and brutal. It is within the brackets of the rules of engagement and the laws of war. We must never step back from that.

Mr. Blunt: Presumably the Minister will reject the new clauses, given that he is making the case for the United Kingdom not taking a view under article 124 or making a declaration. Will he put it clearly on the record that he does not agree with the position taken by the New Zealand Government in their declaration about how the articles should be interpreted?

Mr. Battle: I shall come on to New Zealand. The hon. Gentleman asked me about France. I reinforce the fact that only one country has taken the opt out so far. We are aware of no other country planning to do so. None of our other NATO allies has done so and eight have ratified within NATO.

Opposition Members might like to reflect on Lord Kingsland's words. In the other place on 20 July, during the debate on the adoption of the Rome statute, he said:

    ``There is, however, one immense drawback . . . the drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes.''—[Official Report, House of Lords, 20 July 1998; Vol. 592, c. 626.]

Even the Front Bench spokesman in the other place agreed with the Government in 1998 that there was no place for an opt out. We agree, and I hope that I can encourage Opposition Members to agree with their Front Bench spokesman in the other place.

The matter is not subject to division. We can be proud of our armed services and their record in abiding by international law in their operations. Our armed forces are already bound and trained to observe international law, and do so. The international criminal court statute does not make criminal any activity now carried out legitimately under that law by service personnel. Views in the other place were tested on that point on Report. We cannot make clearer our view on the opt out.

On the history of the opt out, I remind hon. Members of the words of my right hon. Friend the Foreign Secretary in the debate on 20 July 1998:

    ``I shall not pretend to the House that we put forward that concession or that we would have wished to see it as part of a negotiating position''

—referring to the opt out—

    ``but it does not strike at the heart of the court—

as the hon. Member for Aldershot conceded—

    ``and was well worth agreeing to in order to get aboard a number of countries that would not otherwise have supported it.'' —[Official Report, 20 July 1998; Vol. 316, c. 812.]

We are creating an international institution, and we must negotiate to do so. Our views are more than plain, and we shall continue to spell them out if necessary.

The matter was one for New Zealand. We cannot answer for every other country's interpretation and say whether it might be the same as ours or different or why a country has expressed its views in the way that it has. Whether we reject the declaration of New Zealand is irrelevant to what we do here, but we cannot answer for New Zealand directly.

In interventions on the right hon. Member for Caithness, Sutherland and Easter Ross, Opposition Members waved about a sheaf of press cuttings. I hope that that sheaf of press cuttings contains a letter from The Guardian—I shall not repeat the comments of the hon. Member for Aldershot—which is a printed document, from the former head of the British Army legal services, Major General Tony Rogers, which states:

    ``When carrying out attacks on military objectives, we are already under a treaty obligation not to cause disproportionate incidental loss and damage to the civilian population. The Geneva Conventions have been put to the test recently. I am not aware we had any difficulties complying with our treaty obligations during the Gulf War of 1991 or the Kosovo war of 1999''.

That speaks for itself.

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