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Baroness Scotland of Asthal moved Amendment No. 133:

On Question, amendment agreed to.

Clause 76, as amended, agreed to.

Clause 77 [Crown application]:

Lord Howell of Guildford moved Amendment No. 134:

    Page 37, line 37, leave out from ("Crown") to (", and") in line 38.

The noble Lord said: As we near the end of Committee stage I return to the familiar theme, which we discussed a moment ago, of the protection of innocent persons, not the pursuit of international butchers and monsters, to which the Bill and project are dedicated, who must be brought to justice, if that can be done. I refer to the people of our nation who are in the service of the Crown. The reasons for the amendment are simple enough. Armed Forces personnel are subject to military discipline and, if they act pursuant to orders, they should not be liable to ICC prosecution.

Some Members of the Committee have had difficulty in imagining what may go through the minds of soldiers when they read some of the provisions of the Bill and how the whole project is to move forward. On the whole, this country is on good terms with most states in the world. One of the matters that I found most wonderful and gratifying in the years that I chaired the Foreign Affairs Committee and travelled around the globe was how the world was such a Britain-friendly place. On the whole, people do not seek to settle scores with us and build up revenge cases, although there are plenty of reasons in history why they may do so.

As I understand it, in the statute a check is provided against abuse and politically motivated prosecutions, in addition to all the pre-trial machinery and so on built into the conduct and procedures of the ICC as provided by the Security Council of the United Nations. In theory, the many extensions of criminal definitions could apply to a number of countries; for example, those in the Middle East. Israel is accused daily of deportation, forced transfers, genocide and murder against the Palestinians. Turkey is also

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accused of those crimes against the Kurds, and Iraq is accused of committing crimes against its own people, the marsh Arabs. Although they may appear to us to be remote concerns, they indicate how, even when countries have not signed the statute, for example Turkey and Iraq--Iran and Israel have done so--there is pressure for the political settling of scores to be incorporated in the procedures of the ICC.

These are very complex problems. Unless the safeguards at the highest level are made absolutely clear in ordinary English, not just (dare I say?) in the reassuring language of legality, criminalisation of the use of international force may be on the cards. People will look over their shoulders, even when they act under UN authority in the name of peacekeeping, and retaliation against violence may potentially become a more dangerous pastime for the individuals involved. It is for that reason that at the end of Committee stage we table one further amendment to give reassurance to those who serve the Crown and their country and are involved in actions, which other people, far from our own definitions, describe as war crimes, and find themselves fingered. They may be investigated or named only in the tabloids but that can mean destruction for many of them. That is the danger. Every assurance we can extract from the Government and legal luminaries, both in this House and elsewhere, that that danger is not there, and that there are safeguards against it, is one more support for the success of the Bill. Every lack of assurance is one more weakness in the Bill and one more danger that it could fail. I beg to move.

Lord Lester of Herne Hill: I wonder what the noble Lord would think if a similar immunity clause were inserted into the law of Ruritania, immunising anyone acting in the discharge of their duties in the public service of the People's Republic of Ruritania, in circumstances in which the Armed Forces of Ruritania had committed atrocities and barbarities of the kind that are stigmatised by customary international law as well as conventional international law? In other words, I wonder whether he would be able to apply the standards he has just outlined to another country that committed these kinds of barbarities against our own people? I venture to think that he would not dream of defending immunity of that kind.

Under the law as it stands, if members of the Armed Forces in the service of the Crown of this country act in breach of Article 2 of the European Convention on Human Rights by unlawfully killing, then there is no immunity at all. Their case has to be determined under British law, and, if necessary, by the European courts. If they are guilty of acts of torture or inhuman or degrading treatment or punishment under Article 3 of the convention, there is no immunity.

If they act in breach of the Geneva Conventions Act, there is no immunity. If they act in breach of the Criminal Justice Act as it applies to acts of torture, there is no immunity. I fail to understand why it is thought that such an immunity could even be dreamt

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of as being appropriate. It would be directly contrary to the ICC Statute to insert such an immunity. I give way to the noble Lord, Lord Lamont.

Lord Lamont of Lerwick: Instead of using "Ruritania" why does the noble Lord not simply use the "United States"?

Lord Lester of Herne Hill: Because I am using a state that is an enemy or an unattractive state, a real example of one that would commit crimes against humanity or war crimes and so on. What I am dealing with here is not immunising United States forces, but immunising our own United Kingdom forces. The point I am trying to make is that we would never dream of tolerating such a provision in relation to an unfriendly foreign state; for example, Nazi Germany.

Lord Lamont of Lerwick: I wonder if that really is what the noble Lord was advocating or whether he was just advocating it in respect of "another country", because what he has said is very much what the United States wants to do with regard to giving itself protection from this legislation. He may know that Senator Helms has talked of introducing a Bill that would authorise the President to use military force to rescue an American held for trial by the ICC.

Lord Lester of Herne Hill: I doubt that anything I or most Members of this House could say would ever satisfy Senator Jesse Helms. I do not aspire to that level, if that is the right way to put the matter.

As the United States has been mentioned, I do not know whether the noble Lord, Lord Lamont, knows that during the negotiations the United States delegation and, separately, the United States military representatives sought and obtained concession after concession in the drafting of the ICC statute. Those concessions were made by the United Kingdom and the others who signed and wish to ratify, in the hope of persuading the United States to follow suit. However, in spite of the broad concessions that have been made, Senator Jesse Helms and many others like him did not wish to sign and ratify. They regret the fact that there has been signature by the United States.

I would not dream of counselling the United States as to what might be in its best interests. The question that we are considering is whether it is compatible with the ICC statute to confer immunity, whether that would be consistent with the other international human rights treaties to which I have drawn attention and whether it is really a matter of principle or is something that we could possibly condone. Why on earth, I ask, should the armed forces of our country be above international law, customary international law or in this case conventional international law? If they are properly suspected and charged with committing these sorts of crimes, why should they have general immunity? Perhaps I may add that this is an ICC

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statute with more safeguards, properly written in, under United States pressure, than any other international human rights treaty of which I am aware.

Lord Lamont of Lerwick: If those remarks were addressed to the United States as well as the United Kingdom, while the principle that the noble Lord advocates is laudable, common sense indicates that one would pursue this matter with considerable reticence if one belonged to the country that carries out more peacekeeping than any other country in the world.

Lord Lester of Herne Hill: The United States has its own proper concerns. Indeed, it is not alone in that. I am seeking to address the issues of principle, and it would be impertinent of me to talk about what is in the best interests of the United States. I recognise the concerns, but I believe that they have been properly met in the concessions made in the ICC statute. I very much hope that it takes less time to ratify this statute than the genocide convention, which the noble Lord will remember was not ratified by the United States until many years after other democratic and civilised states throughout the world had done so.

Lord Avebury: Let us consider the matter from the viewpoint of Senator Jesse Helms. The reason why he does not want the United States to sign the ICC statute is that he knows that there cannot be any exemption for the personnel of the American armed forces, apart from the protections that have been rehearsed time and again, such as those in Article 17 and so on. The senator's position is logical. He does not want the United States to accept a statute from which there is no exemption, whereas the noble Lord on the Tory Front Bench is trying to add to the Bill an exemption that is totally incompatible with the statute. Senator Jesse Helms is at least more consistent than the noble Lord on the Front Bench.

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