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Mr. Brazier: Will the Minister confirm that the final judgment on whether the investigation or, in some cases, prosecution of the crimes has been adequately carried out is made by the International Criminal Court itself? If a case has been investigated and dropped, the ICC is free to take the view that it has not been properly investigated.
Mr. Touhig: If the hon. Gentleman permits me, I shall come to that point later.
The first priority always goes to national courts. The International Criminal Court is in no way intended to replace the authority of national courts.
In this country, legislation passed by this Parliament was needed to ensure that the UK could co-operate with the ICC. Devolution meant that the Scottish Parliament needed to pass a similar Bill for the same purpose. The legislation was needed to enable the United Kingdom to ratify the statute. The International Criminal Court Act 2001 covers England, Wales and Northern Ireland, and
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many of its provisions extend to Scotland as well. The Act establishes a legal basis for the UK to offer support and co-operation to the ICC in all the ways provided for in the statute that were not already possible under domestic law: for example, UK authorities are empowered to arrest and surrender suspects indicted by the ICC. However, I repeat: the ICC will be able to take jurisdiction over an offence committed in the UK or by a UK citizen only if the domestic authorities are unable or unwilling to investigate or prosecute the case. The Act also incorporates the statute offences—genocide, war crimes and crimes against humanity—into domestic law, so that the British courts can try those offences themselves.
During the passage of the legislation, concerns were expressed about the implications for our service personnel. First, there was concern that the ICC and the Act were creating new criminal offences. However, the Attorney-General told Parliament that the ICC statute contained descriptions of war crimes to which Parliament in this country had already assented. The UK's armed forces have always sought to conduct armed conflict in accordance with international law and the Bill, he said, would not alter that fact.
Secondly, there was concern that a politically motivated prosecution could reach the ICC. Some said that it could not be guaranteed that the court would never bring politically motivated charges against UK personnel, but the Government took the view that the risk was minimal. We remain satisfied that the Rome statute contains sufficient safeguards against such cases being brought before the court. In addition, there would have to be a catastrophic failure of the UK criminal justice system for the ICC to assume jurisdiction.
Mr. Brazier: The Minister seems to concede what the briefing from the House of Commons Library—usually a good source—states categorically, which is that in any of various circumstances listed, the ICC could take up the case. Crucially, it states:
"It falls to the ICC to determine whether these circumstances apply. There is an appeals procedure but the ICC determines the appeal as well."
The examples I gave represent a departure from the standards that we traditionally expect of our armed forces. That a commanding officer should be held responsible because he might have micro-managed a situation and prevented something from happening 13 miles away is a concept wholly foreign to British military law and British military command.
Mr. Touhig: I understand that, but I can only repeat that the Government's view is that there would have to be a catastrophic failure of our criminal justice system for the ICC to assume jurisdiction in such matters. The 2001 Act does not make British service personnel more vulnerable; it does not criminalise any conduct that was previously lawful. The definition of war crimes in the statute is already part of established law of armed conflict. The responsibilities of a commander for the offences of forces under his command as set out in the statute go no further than is already the case in our own armed forces: neglect of duty has always been an offence under military law.
Patrick Mercer:
I do not wish to destroy the Minister's chain of thought, but will he give his view on
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where responsibility starts and where it stops if one accepts his argument? One might say that it stops with the formation in which the incident or offence occurred. Perhaps it stops with the cap badge, in which case it is instructive to note that some of those charged in the case that we are discussing are not soldiers of the Queen's Lancashire regiment. Does responsibility stop at lance corporal? Section commander? Platoon commander? Company commander? If it should reach as far as commanding officer, why not brigade commander? I realise that the point has been made already, but I am interested in hearing the Minister's view.
Mr. Touhig: I repeat that the responsibilities of a commander for the offences of forces under his command as set out in the statute go no further than is already the case in our own armed forces: neglect of duty has always been an offence under military law. The statute did not require the UK to change its approach to military operations in any respect, nor is this the first time that an international criminal court has had jurisdiction over our forces in operations.
Patrick Mercer: I return to the point that I made earlier. I described an incident in my battle group—my battalion—where one of my non-commissioned officers had committed a crime. Indeed, he had. He was charged with that crime. At no point in that process did I feel myself vulnerable. At no time did his company commander, his company second-in-command or his platoon commander feel vulnerable. What is the change?
Mr. Touhig: I do not think that there is a change. The point that the hon. Gentleman has made from his own experiences shows that so far as our operations are concerned, and given the guidelines and the rules by which we operate our forces in areas of conflict, we are operating properly. I think that the definition that the hon. Gentleman gave earlier in his contribution demonstrated that from his personal experience.
It is not the first time that the ICC has had jurisdiction over our forces in operations. The personnel of every NATO state during the Balkans conflict were subject to the similar criminal jurisdiction of the International Criminal Tribunal on the former Yugoslavia. In that specific case, however, the tribunal had primacy over national courts, unlike the ICC where national courts would be given the first option to prosecute.
British service personnel receive training and guidance at an appropriate level—a high level—of the principles and the application of the laws of armed conflict, at various stages in their careers. Suitable refresher training in these matters is also given to personnel before deployment in operations. Our experience of the ICC since its inception has not altered the views that we took at that time. We remain an enthusiastic supporter of the court, committed to its principles and confident in its approach to international law.
I can confirm that the ICC prosecutor wrote to Her Majesty's ambassador in The Hague in 2003 forwarding a complaint made by the Athens Bar Association concerning British military operations in Iraq. The Government have provided a formal reply to the prosecutor, giving the response to the allegations and
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setting out UK national procedures for the investigation of such allegations. We believe this reply to be a convincing rebuttal of the allegations. However, there have been a number of press reports recently that up to 15 British soldiers face prosecution under the ICC. These reports concern the alleged torture and death of an Iraqi civilian who died in British military custody. I can confirm that allegations against the soldiers have been investigated by the Royal Military Police and that evidence against a number of soldiers is currently being considered by the independent Army Prosecuting Authority.
As the House is well aware, we all take such allegations with the utmost seriousness, and they have to be investigated with scrupulous care. That is the point that has been made by hon. Members on both sides of the House. It is not known at this stage whether the Army Prosecuting Authority intends to bring charges, but if soldiers are to face trial, it will be either in the civilian criminal courts for breaches of English law or by court martial under the Army Acts.
Mr. Brazier: The Minister is surely missing the point. The issue does not involve the soldiers who allegedly committed this murder. The issue is that a military commander is now deemed to be negligent or, in the words of the Act, to have failed to
owing to the circumstances at the time, should have known, that the forces were committed or about to commit offences and
"failed to take all necessary and reasonable measures within his power to prevent or repress their commission."
That is what is completely new. It goes against every principle of military law and against the way in which our armed forces are organised.
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