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Lord Burlison: My Lords, I beg to move that the House do now adjourn during pleasure until 8.55 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.52 to 8.55 p.m.]

International Criminal Court Bill [H.L.]

House again in Committee.

Clause 52 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:

[Amendments Nos. 112 to 114 not moved.]

On Question, Whether Clause 52 shall stand part of the Bill.

Lord Lamont of Lerwick: Can the Minister give a brief explanation, particularly of that part in the Explanatory Notes stating that,

Why is it necessary to have this provision? What gap is it aimed at? Why do some of our existing laws on incitement not cover that matter? Can one have genocide by a non-UK national overseas in the singular? Some explanation would be gratefully received.

Lord Williams of Mostyn: One could have incitement by a single person or persons of a single person or a number of persons abroad. The provision deals with a new situation, which is that criminal offences are brought into judicable effect by the statute, if it is incorporated by the Bill.

Lord Lamont of Lerwick: But can there be genocide by a single person?

Lord Williams of Mostyn: It is certainly possible, although I accept the noble Lord's underlying proposition that it is unlikely.

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Clause 52 agreed to.

Clause 53 agreed to.

Clause 54 [Offences in relation to the ICC]:

[Amendments Nos. 115 to 118 not moved.]

Lord Howell of Guildford moved Amendment No. 119:

    Page 26, line 22, at end insert?

(?( ) The courts shall have no power to grant an injunction or other interim relief against the Crown, its agents or any member of Her Majesty's armed forces in respect of an offence or ancillary offence.?).

The noble Lord said: Amendment No. 119 is a probing amendment. It seeks to safeguard against a particular possibility which could arise in domestic courts under the new legislation. Ministers may say that this is not the perfect place in the Bill to have the amendment. But it is hard to find any place to fill the particular hole we believe we have identified. We are concerned to ensure that there is no scope for domestic courts to interfere in current or potential operational matters or to be so moved to bring injunctions, or to feel impelled to bring injunctions, to stop the Armed Forces pursuing activities which they say are of a political nature. I have in mind injunctions that seek to prevent the Armed Forces operating in any way connected with nuclear weaponry. If that sounds far-fetched, it is a matter of record that the Scottish devolved Parliament is about to consider the legality of nuclear weapons.

I am advised that back in 1996, the international court of justice gave an opinion that all nuclear weapons were illegal. It is possible to think of a range of injunctions that active people, with a strong political case to press, might bring against the Armed Forces who were seeking to carry out their normal duties, or who were about to go into a military action required by international peacekeeping interests or engaged in the pursuit of national interests.

If the amendment is rejected, may we at least have an explanation as to why the possibility of an injunction is left in place in the Bill, given the new crimes that we are placing on the statute book? I am told that under English criminal law, courts have an inherent jurisdiction to issue injunctions to prevent threatened criminal offences. If something that hitherto was not regarded as a criminal offence, or identified as such, now becomes a criminal offence, how can we ensure that groups do not engineer injunctions, which interfere with the proper pursuit of national and security interests and the work of the military? I beg to move.

9 p.m.

Baroness Scotland of Asthal: Clause 54 seeks to implement Article 70.4 of the statute, which extends existing offences against the administration of justice to cover the administration of justice of the ICC.

I confess to being somewhat perplexed by Amendment No. 119 as it purports to exclude any injunctive relief in respect of a possible offence committed by Her Majesty's forces. While we do not

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accept that such a remedy would lie, the amendment has no place in a criminal law statute of this kind. It is a matter for the civil courts. I hope that the noble Lord will not seek to press his amendment.

The Government remain confident that our entirely defensive minimum nuclear deterrent is consistent with international law and consequently there is no question of military personnel and civilians engaged in support of the United Kingdom's nuclear capability acting illegally or being in breach of the Nuremberg principles.

Lord Howell of Guildford: I thank the noble Baroness and ask whether her final comment, which is reassuring, will be placed on the record as a declaration or interpretative note? Will it be placed on the record on the ratification status or made explicit in some other way? The noble Baroness will know that the Republic of France has done precisely that, and that other countries are also concerned about the matter.

I fully accept, as I said, that this is not the ideal place to make the point, but in probing the Government's views I was anxious to have the assurance that such injunctions, which are not unknown, and which may not be unknown in the future, are ones that the courts will not readily grant, merely because new crimes have been added to the statute book. That assurance is fair enough, although I do not know whether it will be enough for people outside. On the question of defence for military operations that could involve things that are now described under the appropriate schedules to the Bill, it is reassuring to have the certainty that there will not be injunctions or court interference of any kind. May I ask the noble Baroness to answer my one question on the declaration before I seek to withdraw the amendment?

Baroness Scotland of Asthal: I hope that I have said as clearly as I can that we shall certainly consider whether a declaration is appropriate. I reassure the noble Lord that our understanding is as I have outlined.

Lord Howell of Guildford: In the light of that reassurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Schedule 9 agreed to.

Clauses 55 to 57 agreed to.

Clause 58 [Genocide, crimes against humanity and war crimes]:

[Amendments Nos. 120 to 122 not moved.]

Clause 58 agreed to.

Clause 59 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:

[Amendments Nos. 123 to 125 not moved.]

Clause 59 agreed to.

Clauses 60 to 64 agreed to.

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Clause 65 [Responsibility of commanders and other superiors]:

Lord Howell of Guildford moved Amendment No. 126:

    Page 31, line 10, leave out from ("or") to ("that") in line 11 and insert ("consciously disregarded information which clearly indicated").

The noble Lord said: Clause 65 sets out the responsibilities of commanders and other superiors who are held responsible for offences committed by forces under their effective command and control. The clause introduces an additional form of criminal culpability and responsibility; namely, that of commanders and superiors for the acts of their subordinates. I understand that the wording of the clause is taken from the Rome Statute and therefore, given the way in which the Committee stage has gone, that the Government line on any changes or improvements to the interpretation of the Rome Statute will be a resistant one. Nevertheless, our amendment seeks to change Clause 65(1)(a) by removing the words,

    "or owing to the circumstances at the time, should have known".

By removing those words, we are seeking some protection for the Armed Forces going about their legitimate business, which may include, internationally, the use of force. As I said at the beginning of the Committee stage, we must avoid criminalising that in all cases, as that would be to the vast advantage of the world's tyrants and perpetrators of atrocities whom we are trying to bring to justice.

The problem as usual is one of subjectivity. It is easy with hindsight to say that a commander under the circumstances at the time should have known. What is the test? What is he supposed to have known? How should he have known it? As is stands, the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event, presumably by the investigatory branch and the prosecutor of the International Criminal Court. If something really horrible happened, as does happen in times of violence and force and is happening all round the world, it might well be in the ambit of debriefs, international investigations and perhaps even court martial. However, can we be sure that the ICC, which may not understand the details of military action and the pressures that operate during a military action, will know the ways of armed forces and be able to apportion blame to a commander because of what he should have known in the circumstances of the time? It may well be that he ought to have known very many things. But let us suppose that a radio failure cut him off from what was going on. How would the court seek to establish the truth of complex circumstances like that?

We have here yet one more example of a matter that concerns those of us who want to see perpetrators of atrocities brought to justice and yet fear that we may be creating a web which will catch some innocent people and a set of conditions that will be politically distorted and used as devices for score settling and vexatious charges and investigations. We have been told throughout the Committee stage that these

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matters can be held at bay. Indeed, it seems that we have not only belt and braces but the powers for the Secretary of State to turn down any investigation or any proposal from the ICC that it should inquire into anything. That seems to have been the purport of some of the assurances given earlier, which we shall certainly need to examine when we come to the Report stage. In the meantime, we feel that an amendment of this kind would at least relieve one of the concerns--it is a strong concern--felt among the Armed Forces who want to go about their business in a legitimate, sensible and responsible way but where it is possible that they may be involved in ugly developments which could not have been avoided and which may now become the subject of an investigation, a warrant and a prosecution. That cannot be a right ambience in which to continue to conduct a balanced approach to international relations, which ideally should involve diplomacy but may, sadly and inevitably, involve force. I beg to move.

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