International Criminal Court Bill [Lords]

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Mr. Gerald Howarth: I invite the Minister to consider why the major general used the word ``disproportionate'' in respect of incidental loss of life when the treaty contains no such word.

Mr. Battle: I am sorry?

Mr. Howarth: The word ``disproportionate'' mentioned in the letter that the Minister just quoted does not seem to appear in article 8.2(b)(iv).

Mr. Battle: It is implicit in article 8.2(b)(iv), which refers to:

    ``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''.

I suggest to the hon. Gentleman that in writing a letter to The Guardian and using the word ``disproportionate'', the major was putting a few words together to form one word, but the intention was more than plain.

The hon. Member for Reigate asked a similar question and, if I remember rightly, he was pressed by my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) about the case of the soldier and his colleague whom he knew well—I think it was his driver—who was subject to international criminal jurisdiction, and whether that prevented the individual from making the right decisions. The hon. Member for Reigate said that the answer was no. That exchange clarified what we have said all along—the creation of the ICC will not inhibit the proper conduct of duties by our armed forces. The hon. Gentleman assented to that in an exchange on the Floor of the House.

Mr. Blunt: The matter is extremely important. There would have been no difference to Corporal Henry in the circumstances under the ICC, and it made no difference that he was subject to the Yugoslav court. However, the moment that someone such as Corporal Henry is taken before the ICC because of a complaint by the families of people who may have been killed by him in action, and we find ourselves, having decided that he had committed no offence, in the position that he was tried by the ICC, for ever after every soldier would be concerned about how he took part in action. The concern is about what would happen if such an event occurred.

Mr. Battle: If a soldier in Britain commits an offence, he comes before our courts.

Mr. Desmond Browne (Kilmarnock and Loudoun): To allow the response to the intervention to be retained within the same context, one must bear in mind that the same soldier, when pursing his legitimate aims, was subject to the jurisdiction of the International Criminal Tribunal for former Yugoslavia, the jurisdiction of which was not complementary to the jurisdiction of our courts, but was overriding. The soldier was subject to exactly the same risks after being exposed to them by the actions of the previous Government.

Mr. Battle: My hon. Friend's point about troops who are under ICTY jurisdiction has proved that it does not hamper operations. In such a respect, Corporal Henry would not be any more likely to face trial by the ICC than he was of prosecution by the ICTY.

I pray in aid General Colin Powell, who commented on the code of law in the Department of Defense report to Congress on conduct of the Persian Gulf war. The matter relates to the notion of the hon. Member for Reigate about military personnel with a lawyer over their shoulder. Colin Powell said:

    ``Decisions were impacted by legal considerations at every level, the law of war proved invaluable in the decision making process.''

That statement stands by itself. United Kingdom service personnel are investigated and will be prosecuted in the UK for breaking the rules and laws of war now. That does not prevent them from doing their job. The rules of engagement are a product of international and domestic law and of operational requirements. Given rules of engagement are made to comply with the law through that rigorous procedure of checking through the Ministry of Defence, the prospect of those rules providing the basis for a case against a soldier, sailor or airman who follows them is inconceivable.

6.45 pm

On my desk there is a handbook entitled ``Documents on the Rules of Law'', which has been around for some centuries. A corpus of opinion has built up around these matters, and it may be worthwhile in the context of the launch of the ICC to spell that out as background, so that we are all well aware of the context in which our personnel will operate. I pray in aid Judge Richard Goldstone, who was the prosecutor for the international tribunal for former Yugoslavia. He was asked on the ``Today'' programme on 8 March what he thought of the fears of the top military brass about the proposals that we are discussing. He said:

    ``I have no doubt that the fears are without justification at all. Firstly the war crimes defined in the Rome Statute are really the most serious crimes intentionally committed. In the second place . . . the ICC . . . will not have the jurisdiction at all...over a British citizen if the British military or civil courts investigate in good faith any allegations made.''

He said that he hoped that the ICC would get under way in 12 to 18 months. Any investigation, regardless of its outcome, conducted by a country into one of its own citizens robs the ICC of any jurisdiction. We must not forget that rule of complementarity.

Mr. Blunt: I agree with all the points that the Minister has made about how the court should operate, but he should consider what would happen if the court did not operate as intended.

Mr. Battle: We must also consider the parameters of the court. I sometimes think that the Opposition fear loopholes where there are none: for example, they expressed concern in relation to naval warfare, with reference to your good self, Mr. Cook. There is explicit provision in relation to article 8 for war crimes to be interpreted within the established framework of the international law of armed conflict including, as appropriate, that law as it applies to armed conflict at sea. Therefore, the Navy is covered.

On Second Reading in the House of Commons, my right hon. Friend the Foreign Secretary stated clearly and unambiguously:

    ``British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.''—[Official Report, 3 April 2001; Vol. 366, c. 222.]

That will happen first, so the ICC will not get a look in. That point is sometimes neglected by the Opposition.

Mr. Gerald Howarth: I am sorry to press the Minister on the matter, but I must challenge the assertion that the ICC cannot possibly second-guess a bona fide examination by our national courts. I cannot accept that there are no circumstances in which a case considered in good faith in this country and dismissed could not be subject to being second-guessed by the ICC.

Mr. Battle: The rules state that the ICC will consider only cases that the country in which the accused resides is ``unwilling and unable'' to prosecute. We have been clear about that in our discussion of handing over and arresting people, and we cannot go back over that ground. The ICC will not get a look in, because such cases will be tried here first under the rules and laws of war in this country. Our rules of engagement in international military operations comply with United Kingdom domestic and international legal obligations. In the past, that has resulted in rules of engagement that differ between national contingents of our forces. We must not forget that British forces and operational deployments are subject at all times to military law, which is United Kingdom domestic law within the context of the Geneva convention and its annexes to which we have signed up previously.

I emphasise that the ICC statute does not create a new law. It does not ban the use of weapons that have been in our arsenal or been the subject of our procurement process. The laws dealing with weaponry are created under the United Nations convention or are part of our customary international law. No new ground will be created, and arguments to the contrary are smokescreens or red herrings. I agree with the right hon. Member for Caithness, Sutherland and Easter Ross that we can argue that there are loopholes in the Bill, but when those loopholes have been rebutted they should not be used to suggest that our intention is not to let the court get off the ground. I do not suspect that to be the Opposition's motive: I accept their arguments in good faith and believe that, like us, they want to ensure that we achieve the best Bill possible. I hope that I have given Opposition Members the reassurances for which they have asked on new clause 1.

New clause 5 would require the Government to seek parliamentary approval of reservations and declarations before ratification. Under article 120 of the Rome statute, no reservations may be made to the statute; accordingly, the Government will not be making any, nor will we be taking the war crimes opt-out under article 124. My right hon. Friend the Foreign Secretary made it clear on Second Reading that we expect to make a declaration on ratification in accordance with article 87 on such matters as our wish that ICC documents to be sent to us in English. Similar declarations on ratification have been made by eight other states. When ratifying an international treaty, it is usual practice for states to make an interpretive statement showing their understanding of certain provisions should they wish to do so. We have to make a final decision whether we shall produce such a statement. Of the 29 states that have ratified the statute, only two have made interpretive statements—and the second was a response to the first.

One of the reasons why so few states have made interpretive statements is that the ICC is not obliged to take such statements into account. As reservations to the statute are not permitted, states cannot make any declaration that purports to modify the legal effect of the statute—nor do we wish to modify the legal effect of the statute. We have no difficulty with it as drafted. There was a consensus in favour of it, which is why we signed it, and it was welcomed in this House and in another place in 1998.

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