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Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. I am sure that he would not want to mislead the House. He said that our European partners were having misgivings.

Lord Howell of Guildford: My Lords, I said "partner".

Lord Archer of Sandwell: My Lords, I thought the noble Lord said "partners". As long as it is clear that it is only France which has found it necessary to limit its acceptance of the jurisdiction in that way and none of our other European partners has found it necessary to do so.

Lord Howell of Guildford: My Lords, I am afraid that the noble and learned Lord did mishear me. I said "European partner"--France. I hope that I was giving it the right epithet. France has indeed taken that stance. Those matters are very clearly set out in the ratification status document which I am sure that noble Lords have had time to study together with, in the French case, a number of other declarations or interpretations about items under the war crimes list, such as those concerning military advantage or the definition of what is and is not a military objective, which is obviously a highly controversial and very difficult matter to decide.

This amendment has a certain air of defeatism about it because it implies that it may not be possible to alter any of this; that it is all set in stone, despite the French readiness to make declarations; and that, therefore, the best thing would be to stand aside from that whole categorisation of war crimes until a lot more thinking has been done and until more opportunities have been obtained to understand the full implications.

If, nevertheless, the Government do not think we should adopt the same route as the French, a number of further questions arise. For example, in the heat of battle, it might lead to some dithering while people decide whether an act might lead to something which might lead to possible charges of war crimes; or that something had been done not unintentionally but intentionally which led to the killing of civilians, or whatever the unpleasant outcome might be.

In the New Zealand Parliament, it was asked whether the government were prepared to give indemnities to armed forces personnel who found themselves in those agonising situations and found they had committed war crimes. It was also asked in that parliament, and it is worth asking today, how one

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defines "excessive damage". Is there to be any attempt in declarations at the time of ratification to define "excessive damage"?

Earlier I read out a report from the Guardian. It is a newspaper report but it was in quotations from defence sources. That report said that Ministers were aware of all that. Will the Minister explain to what extent she is aware of those concerns and how she feels they should be responded to?

The Canadian nation took this through their parliament. Canadians are very keen on this measure. They see all its virtues, many of which are very clear. Nevertheless, they recognised that there was a new situation in which new crimes now existed on their own statute book and, therefore, that it was right that exceptional steps should be taken to publicise to the nation at large, to its citizens and above all to its armed forces and public servants, the nature of the possible breaches of state obligations and the nature of the new ICC legislation and to ensure that citizens were properly informed by state agencies. What is to be done about that?

Clearly, there are complex--and very complex, as my noble friend Lord Campbell of Alloway remarked on an earlier amendment--issues here. The law is complicated and will become more complicated. Yet, it has to be applied often in very heated, rushed, urgent and even critical situations. So the need for publicity is extremely important and this is the appropriate stage in our debates on the amendments to raise it. With those comments as to why we are tabling the amendment, I beg to move.

5.45 p.m.

Lord Lester of Herne Hill: My Lords, in 1958, a year after the end of the not very glorious military career of Gunner Lester AP and Second-Lieutenant Lester, Royal Artillery, Sir Hersch Lauterpacht, later the British judge on the International Court of Justice, revised the Manual of Military Law that national service and professional soldiers and officers were bound by in a very important way. As far as I am aware--and my colleague, Professor Sir Ian Brownlie, QC, who is a real expert in this area believes this to be the case--the Manual of Military Law has been updated from time to time.

In Chapter 14 of that manual, under, "Means of securing legitimate warfare", Sir Hersch Lauterpacht set out in detail the Hague Rules on state responsibility and the Geneva Conventions dealing with individual criminal responsibility for war crimes and, in detail, explained the concepts, the punishments, individual responsibility, the way in which the defence of superior orders was no defence and the responsibility of commanders for war crimes committed by subordinates. All of that was in 1958.

There is nothing new in the ICC statute or in this Bill in relation to the main ingredients of these international legal principles. All that is new is that an international criminal court is being set up to have primary jurisdiction, working in partnership with

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national courts. Indeed, even that was foreseen by Sir Hersch Lauterpacht as long ago as 1944 in an article I read in the British Yearbook of International Law. That is my first point.

Secondly, I should like to refer to the extraordinary article, to which the noble Lord, Lord Howell of Guildford, also referred, which appeared in the Guardian, on its front page, no less, ascribing to top military commanders various views which were so inaccurate, incomplete and misleading that I cannot believe that any of them could really have been so ignorant.

There are often criticisms of members of the legal profession and many of those criticisms are justified. When my profession speaks on its own behalf, it often speaks in the language of self-interest masquerading as public interest. All professions and jobs tend to do that. When I read those views in the Guardian, I cannot help thinking that the honourable profession of soldier, sailor and airman or woman may be subject to the same problem; namely, confusing self-interest and public interest.

I refer briefly to the article which has already been commented upon. It suggested that the Bill could prevent British peacekeepers from carrying out their tasks effectively. I do not understand that at all. As I say, the law we are dealing with is old and well-established international law, conventional and customary.

It is said that the rules are made in places other than our capital city--a reference to Brussels, above all. I do not know whether those top brass spokespersons are thinking of rules about sex discrimination, which they do not like, as applied to the Armed Forces. Those are made in Brussels. But none of these rules can be laid at the door of the European Union or Brussels at all.

The article states:

    "Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals".

Again, that is a complete farrago of the accurate position. Then it is said that the safeguards are not sufficient. The article continues:

    "We have got to [ensure] there is a framework that does not prevent us from doing what we set out to do".

The framework is as old as the Geneva Conventions and the Hague rules. Then it states:

    "when we see bits of European legislation [the military] should not be forced to follow it slavishly".

I repeat, this is not even European legislation.

The final point is that the noble Lord is right to say that it is open to the United Kingdom to follow the bad example of France. Of the 29 countries that have so far ratified the statute, I believe that only the French Republic has taken advantage of Article 124. The seven other member states of the European Union have not taken that approach. There is no doubt that during the negotiations there was heavy pressure on the negotiating team from the French ministry to take advantage of that option. But I find it difficult to understand why on earth it would be in the interests of the Armed Forces of the United Kingdom to reject, for seven years, the beneficial provisions of the

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International Criminal Court statute on the basis of objections that are really objections to the restraints on warfare being committed in ways that engage criminal responsibility.

Last but not least, many of the war crimes defined in Schedule 8 and Article 8 of the statute are already part of our domestic criminal law, so there is nothing new in that. For those reasons we on these Benches are firmly opposed to this amendment.

Lord Goldsmith: My Lords, I too oppose this amendment, while entirely recognising the legitimate concerns that have been expressed. First, what does it amount to? It amounts to a proposal that for a period of seven years United Kingdom nationals should not be subject to the jurisdiction of an international court that otherwise we should support and promote with respect to one category of grave crimes against the peoples of this world with which the statute is concerned. Why should there be that escape from accountability for that category of act? Why should we allow war crimes to go unpunished by the International Criminal Court? These are not new laws.

As was made clear by the noble and learned Lord the Attorney-General, the provisions of Article 8 relating to war crimes are to be found in existing international law. That is clear if one looks at Article 8, which is set out at page 63 of the statute:

    "(a) Grave breaches of the Geneva Conventions of 12 August 1949"--

and they are enumerated--

    "(b) Other serious violations of the laws and customs applicable in international armed conflict"--

that is existing law. Then particular instances of that are enumerated.

I believe that the Geneva Conventions were conventions that this country took a proud part in drafting, promoting and adopting. For many years we have accepted them. It is in our interest that others should obey them too; if our soldiers are involved in conflicts abroad, it is in our interests that they should be protected and that we should know that they are protected from war crimes, as our people will be so protected.

I ask, as I have previously during the course of this Bill, what we would say if another country, whose reputation for human rights or whose reputation for respect for individuals is not as great as we believe ours to be, were to adopt a similar course? Suppose they were to say, "We are not prepared to accept the jurisdiction of this court in relation to our conduct".

The fact that modern weapons are capable of striking deep into territory and causing untold damage is not a justification for licensed barbarism; it is more a reason why we should look for a clear standard of international law to control international war.

What are the defences and the safeguards against the concerns to which the noble Lord refers? I believe that there are three. First, the definitions in Article 8 are clear. With respect, I do not accept that they are subjective; they are objective. I take the example quoted by the noble Lord and stated in the Guardian

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newspaper of sub-paragraph (iv) of Article 8(2)(b). It contains four critical elements that must be considered. Item one relates to,

    "Intentionally launching an attack";

item two is "in the knowledge"; item three is,

    "that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive";

and item four is that it must be clearly excessive,

    "in relation to the concrete and direct overall military advantage anticipated".

I would refer, not to my view, but to the view of someone who knows far better than I do how such matters operate in international law and in military matters. I had the benefit of hearing from General Rogers who is a former director of the Army Legal Services, who gave a briefing some time ago on this matter. In relation to this particular concern about military operation staff he said:

    "However, the qualifying words 'intentionally', 'in the knowledge', 'clearly' and 'overall' should ensure that only the most obvious cases would come before a court and that military commanders doing their best in difficult circumstances to comply with the law of armed conflict will have nothing to fear".

That is the view of someone who understands how military operations work and has the interests--as I am sure he has--of servicemen at heart. That is a view that I would accept.

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