International Criminal Court Bill

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The Chairman: Standing Orders do not allow me to permit withdrawal of an amendment in the absence of the hon. Member who moved it, so I must put the Question.

Amendment negatived..

Clause 49 ordered to stand part of the Bill.

Clause 50 ordered to stand part of the Bill.

Schedule 8

Genocide, crimes against humanity and war crimes: articles 6 to 9

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

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

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

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

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

2.45 pm

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

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

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

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

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

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

I entirely accept what the Minister said in response:

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

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

Mr. Crispin Blunt (Reigate): As is the Royal Artillery.

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

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

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

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

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

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

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

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

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

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

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

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

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

3 pm

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

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