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Mr. Keetch: I am sure that no Member of the House would want our special forces to be made redundant, but this matter hinges on the definition of armed conflict, which is not what the normal special forces operation would be considered. Indeed, if the hon. Gentleman is saying that special forces operations ought to be dealt with under Geneva conventions and treated as armed conflict—that that is his position and that of his colleagues on the Front Bench—he is extending the legal quagmire in which existing special forces operations may well be undertaken.
Mr. Dismore: That is entirely the point. The next argument, which I was coming on to, involves the definition of armed conflict in the long title and throughout the Bill. The problem is that armed conflict is defined by referring back to Geneva conventions. It would be illustrative for the House if we considered the Ministry of Defence definitions in relation to some activities that the armed forces get up to. On peacekeeping, the definitions refer to
That is what the MOD guidance, entitled "The Application of Force", says. Peace enforcement is
the intervention and is essentially "coercive in nature". But the document "British Defence Doctrine" says:
"Given past experience, one real possibility is that the same forces may be required to employ warfighting techniques, to conduct"
The problem is that the definitions in the Geneva conventions simply do not provide the focus, definitions or explanations for this dynamic.
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Dr. Rachel Kerr, who is referred to in the Library brief, makes it very clear, saying that
"it is a serious difficulty for the armed forces and something that contributes to the uncertainty surrounding questions of legitimacy, both of the action itself, and what can, or cannot be done in the course of that action".
Those who dispute that, such as Professor Brazier, who gave evidence to the Select Committee of which my hon. Friend the Member for Pendle (Mr. Prentice) is a member, say that we should
When one's armed forces, Ministers and generals could face a court of law, I think the question of common sense is rather vague. Indeed, I believe that this would infringe their human rights under the Human Rights Act 1998, because the certainty one needs when looking at the definition of criminal law in those circumstances would not be provided.
Colin Challen (Morley and Rothwell) (Lab): I have been listening with interest—all this is indeed very interesting—but my hon. Friend has not really answered on his first point, which was that it was right for the Prime Minister to go to war in 2003. Could it be that it was considered right only because the Prime Minister knew in advance that he had the support of the Opposition and would therefore win the vote?
Mr. Dismore: I do not think that that consideration is relevant to our debate today. We are considering the question of potential votes in the future. People voted in the debate on Iraq based on what they were told at the time. My point is that I suspect they would have been told nothing different had the Bill been in force, although that is not the issue before us, which is participation in armed conflict. All the evidence from the academics—and indeed common sense, if I might quote Professor Brazier's own argument against him—tells us that the definition of armed conflict is fluid and difficult, particularly in the context of mission creep.
In an intervention on my hon. Friend the Member for Walthamstow (Mr. Gerrard), who is no longer in the Chamber, I referred to what happened in Bosnia and Srebrenica. There, the Dutch armed forces were faced with a very difficult situation. The net result was that they stood aside because they did not know where they stood in international law and allowed appalling atrocities to take place.
Without a clear and absolute definition of armed conflict and without proper protection, which the certainty of a clear definition would give, we could, to return to my original point, criminalise not only our Ministers and generals, but our squaddies.
Clare Short: The hon. Gentleman has made the Srebrenica point a number of times, and I have not read the full report to the Dutch Parliament on that terrible matter, but if British troops were deployed to protect people in a UN safe city, our military have the capacity to give them the right orders so that they would be able to protect people if they were under attack.
Mr. Dismore:
That presages my arguments under clause 8. I am not sure that that was necessarily the case.
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As I recall, one of the arguments in relation to Srebrenica concerned the rules of engagement under which the UN was operating at the time. Part of the problem was that they were restrictive and ambiguous, and, facing that, the Dutch troops did not feel willing to commit themselves. As my right hon. Friend's requirement under clause 8 is that action must be either "following a lawful command" or
those troops are left in an ambiguous position. They do not have time to phone up the Prime Minister to ask him to apply retrospectively for a motion in Parliament, or to wait for a vote in Parliament to decide whether they are allowed to shoot back. I shall return to those arguments later.
I presaged my concerns about clause 2 when I intervened on the question of judicial intervention. It is a question not of the courts overruling Parliament, but of the courts interpreting and ruling on whether the Government's interpretation of what Parliament has decided is lawful and reasonable. Let me give an example. One of the matters that the Government must lay before Parliament is the expected duration of the participation in armed conflict. Let us suppose that the Government say that the war will be over by Christmas—it has been known before—and that the war is still going on at Easter. There is nothing to stop somebody going to the courts to seek judicial review, saying, "The Government are continuing a war without lawful authority, because Parliament debated it on the general understanding that the war would be over by Christmas. It hasn't happened that way. Please, judge, give me an injunction to require the Government to withdraw their troops."
David Howarth : I am reading clause 2, as the hon. Gentleman must be, and I cannot see any obligation under it to provide the House with information of the sort that he described. There is a power for the Prime Minister to make such information available, but he does not have to do so.
Mr. Dismore: In that case, what is the point of the Bill? The whole point of the Bill is to ensure that Parliament is informed as far as it possibly can be, or as far as the Prime Minister believes that he can go. If it is being suggested that the Prime Minister either tells Parliament nothing or tells it something so vague and wishy-washy that it is utterly meaningless, what is the point of having the debate and the report in the first place?
The fact remains that if a Government go way beyond what is set out in the report to Parliament, they lay themselves at risk of judicial review, of the courts intervening, and of arguments about retrospectivity and what was being done in the intervening time. The next thing will be that our British soldiers are facing war crimes trials here.
Tom Levitt
: Is not it equally absurd that the conditions for military intervention, laid down under
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the Bill, can change drastically, time and again, without having to come back to Parliament for a reassertion that those conditions are correct?
Mr. Dismore: My hon. Friend is right. There is no obligation on the Government to come back should the duration of participation stretch from Christmas to Easter, but there is nothing to stop the courts intervening and overruling what the Government are doing in those circumstances. That is a major problem.
In relation to the geographical extent of the participation, let us suppose that our Government said, "Okay, we're going to intervene in Iraq." That would stop any hot pursuit into Syria and Iran, but the border with Iran is somewhat fluid. What would happen to our sailors who were caught on a ship in the Shatt al-Arab waterway by the Iranians and held, allegedly for being on their side of the frontier? If the Iranians are correct about that, those soldiers have committed an offence in international law, and in domestic law under the Bill as it stands, as they have engaged in unlawful military action, because it has not been approved by Parliament. That is not to decry in any way the arguments that others have advanced about the value of such intelligence to our potential enemies.
I asked earlier what difference the Bill would have made if it had been in force at the time of the Iraq war. It would have made one important difference: the decision would not have been taken in this House; it would also have required a vote in the other place. I am a great democrat. I would like to see an elected House of Lords. At present, however, the House of Lords could vote the opposite way from the House of Commons. We could end up with a parliamentary stand-off. Our armed forces could be left in an impossible position in the middle, while we played parliamentary ping-pong with the House of Lords over whether or not the country should go to war. That is not the right way in which to proceed, particularly as their lordships do not have a democratic mandate.
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