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Motion made, and Question put forthwith, pursuant to Standing Order No. 52(1)(a) (Money resolutions and ways and means resolutions in connection with bills),

Question agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 107 (Welsh Grand Committee (matters relating exclusively to Wales)),

Question agreed to.

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International Criminal Court (Service Personnel)

Motion made, and Question proposed, That this House do now adjourn—[Mr. Dhanda.]

7.46 pm

Mr. Julian Brazier (Canterbury) (Con): I am grateful for this opportunity to discuss our armed forces serving abroad in operational theatres such as Iraq and Afghanistan. I am delighted to see my hon.—and gallant—Friends the Members for Blaby (Mr. Robathan) and for Newark (Patrick Mercer) in their places. I am also glad that the hon. Member for Chorley (Mr. Hoyle) is in the Chamber, as I know that, like the Minister who will reply to the debate, he takes a close interest in all matters affecting the welfare of our armed forces.

Hon. Members of all parties in this House accept that we owe a special duty of care to those men and women who are required to take daily risks with their lives on our behalf, and to carry out duties that no other job requires. The military structure has to provide them with a working environment in which there are clearly understood rules, and with an ethos that enables men and women who regard themselves as ordinary to deliver quite extraordinary things again and again. That is something that the British Army, and our other two services, have been achieving for generations. The success of the British forces in Basra, and the relationships that they built with the local community there, reflect that.

The bonds of loyalty and trust—the vertical ones between the different ranks, and the horizontal ones too—that are built in peacetime are vital when a regiment finds itself in harm's way. That is why many of us were deeply concerned that Parliament should have subjected the armed forces to a legal framework that is alien to British law and enforceable by foreign judges who are wholly ignorant of the British military way—and, in many cases, of war itself.

Tonight, I want to focus on two cases: the current investigation of Colonel Jorge Mendonca; and the earlier case pursued against Trooper Williams. I hope that those examples will illustrate why the current legal framework is grossly unfair to men and women to whom we owe so much, and why it strikes at those very bonds of trust that lie at the heart of military excellence.

I want to make it clear that I do not for one second seek to defend any soldier of any nation who abuses his uniform and commits atrocities against civilians or helpless prisoners. Such atrocities are much rarer in the British Army than in any other army that frequently sees action today. The attitudes and the ethos of the British Army have prevented, in the vast majority of cases, the sort of atrocities that so many other armies commit. The idea that the sort of micromanagement that the International Criminal Court Act 2001 entails will improve that is wrong. Indeed, it will work the other way. In the Balkans, it was those European armies that had the least effective discipline and poorest leadership—it is odious to name names, but I am afraid that the example of the Dutch comes to mind in a couple of famous incidents—that were responsible for the worst incidents.

It is quite right that when genuine atrocities are suspected, they should be investigated and pursued. If necessary, charges should be brought and taken through
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the legal system. However, in the past any charges were always made in accordance with British concepts of justice and tried by a court martial, in which military officers who were familiar with pressures under which soldiers operate would moderate their judgments accordingly. In plain English, that meant that before a man bearing arms for his country abroad could be charged, evidence would have to exist that he or she was directly responsible for deliberate wrongdoing.

Instead, the International Criminal Court Act has introduced something very different. Section 65 (2) states:

an ambiguous phrase—

The press have carried several stories about Colonel Mendonca's case, but going into detail might involve compromising others facing charges resulting from the death of a civilian, Baha Musa. I simply want to draw attention to several facts. First, Colonel Mendonca received a Distinguished Service Order, the Army's second highest award for gallantry, for his handling of his regiment under extremely difficult conditions in Iraq. Therefore, we should not deal with him lightly. Whatever may or may not have happened in the death of Mr. Musa, it is uncontentious that Colonel Mendonca was nowhere near the scene of the alleged crime. He was some 13 miles away. Nor has there ever been any suggestion that he actively encouraged soldiers to commit an offence. But under the wording of the Act, he has been subjected to a military investigation and advised to seek legal advice. Even if the charges against him are dropped, the International Criminal Court is free to pursue him as it, and it alone, is the judge of whether any investigation in this country was adequate.

The second case is that of Trooper Williams. I shall cite the facts entirely from Treasury counsel's view of the facts of the matter—not the defence's view—so these points are conceded by the prosecuting authority. Trooper Williams was one of a patrol that caught six Iraqi insurgents moving a cart containing heavy machine-gun ammunition. One of the Iraqis escaped and Trooper Williams and another soldier chased him into the courtyard of a private dwelling. The subject resisted capture and was killed, although he subsequently proved to be unarmed. Treasury counsel conceded that

My hon. Friend the Member for Newark will say more on that, if he catches your eye, Mr. Deputy Speaker. However, I ask the House to focus on those words. Those were the grounds that the Treasury counsel advanced for finally abandoning the case. However, surely the facts in that statement should have been obvious to the prosecuting authorities from the beginning.
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One can only imagine the courage it took for two lightly armed soldiers, without backup, to pursue an enemy into a rabbit warren of housing in a country abounding with armed angry men. The soldiers could easily have turned a blind eye and let the man get away, and nobody would have even considered bringing charges against Trooper Williams. His commanding officer chose to stand behind him. Despite that, no less an authority than the Attorney-General overruled the commanding officer's finding that there was no charge to answer and ordered the Crown Prosecution Service to prosecute Trooper Williams. It had been established that the Iraqi was a member of the opposition, and Trooper Williams chose to do his duty. However, the Attorney-General decided, from the comfort and safety of his office, to prosecute a man who did his best in the heat of the moment.

It has not been lost at any level in the Army that that case went so far, and was only finally reluctantly abandoned when it became clear that the particular circumstances were unlikely to convince a jury. Furthermore, the International Criminal Court could still, as it could in the Mendonca case, choose to forget the British process and pursue a prosecution of its own against Trooper Williams.

If those two cases separately are very worrying, they are even more so when put side by side. Let us imagine a situation in which the two cases run together. A good commanding officer is one who gives clear instructions to his subordinates and lets them get on with them. However, in future he will be endangering his position because the provisions in section 65(2) of the Act leave him open to prosecution if he does not take

any possible offences. In Iraq or Afghanistan, soldiers can be in small pockets all over a large area. Worse still, if another case like that of Trooper Williams were to go to trial, the CO who did the right thing—supported a subordinate doing his duty bravely under difficult conditions—would have the added moral pressure that he could himself face charges if he were to dismiss the case, because it could be argued, either in this country or before the ICC, that he had failed

The wording of the Act ignores the fact that the investigating authority is normally the chain of command in that situation.

If the first half of the provision about

is an incentive to micromanagement, the second, about failing

is a charter for dereliction of trust between commander and subordinate. Does anybody believe that British officers have been involved in widespread cover-ups? I do not believe that that is the Minister's view, because I know that he is committed to the interests of our armed forces, but if it is, he must tell the House. If that is not his or the Government's view, on what possible basis are we putting that threat against commanding officers? As I said, armies that do not commit atrocities are not armies that are micro-managed; they are not armies with
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lawyers following in their train all the time. They are armies with good leadership and discipline and bonds of trust—the very things that this measure will undermine.

After seeing the way in which Colonel Mendonca has been treated, every commanding officer will have to fight the temptation to distance himself from any soldier in trouble. Many would say, perhaps cynically, that that was the greatest temptation that members of the chain of command faced before this disgraceful law was passed.

The men and women who wear uniform on our behalf in Iraq suffer terrible discomforts. They often suffer horrible wounds, too, and they face the risk of death each day. Another large group of soldiers is due shortly to go to Afghanistan. Territorials from my constituency left last month for Iraq. Those men and women are entitled to expect Parliament to support them when they make split-second decisions in difficult and dangerous circumstances. It is unfair that the bonds of trust that hold our regiments and units together should be undermined in this shameful fashion.

8.1 pm

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