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The Solicitor-General: I agree fully. The provisions incorporating the Geneva protocols have that civilising effect, and we have signed up to them. We are signed up to them for a number of years. I will develop that point, which was raised by my hon. Friend the Member for Ilford, South (Mr. Gapes) and by the right hon. Member for Caithness, Sutherland and Easter Ross. In the provisions that the amendment would delete, article 8.2(b)(i) set out in schedule 8 is taken from article 51 of the first additional protocol to the conventions. It relates to a grave breach under article 5.3 of the protocol. That was incorporated into our law in 1995, under the Geneva Conventions (Amendment) Act 1995, so it is already an offence under domestic law. The effect of the amendment would be to reverse our domestic legal provisions.
Paragraph 2(b)(iv) of schedule 8 is based on article 51.5(b) of the first additional protocol, and relates to a grave breach of the Geneva convention under article 85.3. The provision is a milder form of the provisions in the Geneva protocol. The language in the Bill states:
``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians...would be clearly excessive''.
That ``clearly'' does not appear in the Geneva protocols. We have an element of an offence that is imposing a far higher threshold on criminal culpability, because of the words ``clearly excessive'' in relation to the
``concrete and direct overall military advantage anticipated''.
The amendments, which I accept are probing, would remove offences that are already in our domestic law as a result of legislation introduced by the previous Government.
It was suggested that the matter would have a chilling effect on the operations of the armed forces. My hon. Friend the Member for Kilmarnock and Loudoun quoted from the former head of the British Army Legal Service the other day, and my hon. Friend the Minister of State quoted the words of Colin Powell. My hon. Friend the Member for Preston reminded us that we are addressing the effect on not simply the armed services, but workers at the Ministry of Defence, Ministers who may be involved in approving attacks and Law Officers. Therefore, I have personally considered the effect of the provisions being incorporated into domestic law, and I assure the Committee that the creation of the ICC will not inhibit the proper conduct of duties by the armed forces or Ministers. The provisions have nothing to do, in terms of the defined elements, with unfortunate and avoidable mistakes that may occur in wartime or with the second-guessing of decisions taken in good faith by the armed forces. They are about punishing people who carry out attacks in the full knowledge—that relates to article 8.2(b)(iv)—that the civilian damage will be disproportionate. Such people are those who systematically shelled and blew up virtually every building in Vukovar, during the war in Croatia. The action was not for legitimate military reasons, but to allow people to vent their ethnic hatred.
As I said at the outset, the amendments would reduce the protection for the armed forces, and I ask that they be withdrawn.
Mr. Gerald Howarth: I am grateful to the Solicitor-General for responding to my points. He was right to observe that the amendments are probing, rather than substantive, and I hope that his comments will reassure our armed forces. He said that he did not believe that the provisions of the schedule would inhibit our forces in a legitimate prosecution of their activities. I am sure that I have not got the words exactly right, but he certainly used the word ``inhibit'', which is the one that springs to mind. I hope that he is right. I am disappointed that the Government are not prepared to enter a reservation or interpretative declaration, to use the French expression, as the French have, because it would have been helpful to have done so. I accept the point that he and the hon. Member for Kilmarnock and Loudoun made—that we are discussing matters that are essentially for United Kingdom courts to judge. I hope that, if the Bill is passed and we are ever in the unfortunate position of engaging in a sufficiently large conflict in which such issues might arise, our courts will interpret the provision in the way that the Solicitor-General suggests and that it will not inhibit our armed forces. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 8 agreed to.
Clause 51
Genocide, crimes against humanity and war crimes
3.45 pm
Mr. Blunt: I beg to move amendment No. 53, in page 27, line 11, leave out from first `Kingdom' to end of line 12.
The Chairman: With this it will be convenient to take the following amendments: No. 42, in page 27, line 11, leave out `a United Kingdom resident'.
No. 43, in page 27, line 12, at end insert
No. 54, in clause 52, page 27, line 29, leave out from first `Kingdom' to end of line 30.
No. 46, in page 27, line 29, leave out `a United Kingdom resident'.
No. 47, in page 27, line 30, at end insert
( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in England and Wales.'.
No. 55, in clause 54, page 28, line 36, leave out from first `Kingdom' to end of line 37.
No. 56, in clause 58, page 30, line 28, leave out from first `Kingdom' to end of line 29.
No. 48, in page 30, line 28, leave out from `or' to end of line 29 and insert—
`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in Northern Ireland.'.
No. 57, in clause 59, page 31, line 4, leave out from first `Kingdom' to end of line 5.
No. 51, in page 31, line 4, leave out from `or' to end of line 5 and insert—
`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in the United Kingdom.'.
No. 58, in clause 61, page 32, line 5, leave out from first `Kingdom' to end of line 6.
Mr. Blunt: We come on to an important debate about the scope of the jurisdiction of the law of England and Wales, as it will be implemented—in effect, a discussion about universal jurisdiction. In the course of the debate, we shall see the colour of the Government's ethical money.
The right hon. Member for Caithness, Sutherland and Easter Ross and I have tabled two different series of amendments that would widen the Bill's scope in respect of people who would fall within its jurisdiction. My amendments are wider than those of the right hon. Gentleman, who will, I am sure, speak to his own amendments. I apologise to him if he finds that some of his foxes have been shot on a field before he is able to rise to speak.
We must consider the development of the Bill in respect of universal jurisdiction in its various stages. Interestingly, the consultation draft of the Bill would have introduced universal jurisdiction for the crime of genocide. Under clause 46 of that draft Bill, jurisdiction is claimed for the United Kingdom in respect of the crime of genocide, crimes against humanity or war crimes, across the piece. In the Bill that we are discussing, as it applies to genocide, clause 51, and amendment No. 53—
Mr. Browne: I notice that the hon. Gentleman speeded up his argument when he drew our attention to the relevant clause in the draft Bill. Perhaps he would revisit that, take me through it slowly and explain how that clause generated universal jurisdiction for the crime of genocide. I do not understand, but I am open to being educated.
Mr. Blunt: Clause 45(4) of the draft International Criminal Court Bill states that
``This section applies —
(a) to acts done in England, Wales or Northern Ireland, and
(b) to acts done outside the United Kingdom by United Kingdom nationals or persons subject to UK service jurisdiction.''
However, clause 46(1) states that
``This section applies to any offence under section 45 (genocide, crime against humanity or war crime).''
As far as I understand it, there is no limitation in that.
Mr. Browne: The hon. Gentleman has speeded up again.
Mr. Blunt: The matter is not central to the arguments that I want to make. The hon. Gentleman will have heard the discussion that has taken place, and he will have noticed the change in the way that the matter has been presented.
If I have misunderstood clause 46 of the draft Bill by interpreting it as giving universal jurisdiction with regard to genocide, it is perhaps understandable, as I think that we already have that universal jurisdiction. The Solicitor-General is shaking his head. However, I think that we do already have it with regard to torture. I am grateful that he is nodding to affirm that.
My inexpert reading of the draft Bill led me to believe that the intention of clause 46 was to give us universal jurisdiction with regard to genocide. Although that might be a mistaken view, I wish to draw the Committee's attention to the difference between the draft Bill's definition of those who fall within the remit of those crimes and that which is contained in the Bill. I have read out the definition of that in clause 45 of the draft Bill. However, the Bill's definition is more inclusive. Clause 51(2) refers to acts committed
``outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.''
The Government have introduced the issue of residency into the Bill, which widens its scope. Why are we going to end up leaving the Bill like that? If the legislation is good enough for citizens of the United Kingdom, and if its purpose is to ensure that people who are guilty of those crimes are unable to escape justice, the United Kingdom's legislation should claim universal jurisdiction, as other countries' legislation claims. That is the purpose of my amendments.
The issues of residency and presence relate also to the amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross.
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