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Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. Is he of the view that the bombing campaigns by the Royal Air Force in the Second World War would be clear of any possible action or would they be caught by this type of legislation?

Lord Goldsmith: My Lords, it is not necessary to consider what the position would be in relation to events that took place before this statute comes into effect. As has been made clear, the statute is not retrospective. I would also say that it is not to be gainsaid that the statement in Article 8--I do not understand that the noble Lord, Lord Howell of Guildford, disputes this--represents existing international law. He rightly says that there will be a new procedure for punishing it. I say that if this is law, it should not go unchecked and unpunished.

Lord Tebbit: My Lords, of course I understand that this is not retrospective, but I am trying to persuade the noble Lord to say what kind of crimes would be caught by this legislation. If he does not like the example of the Second World War bombing campaigns, would the attacks on civilian targets in Serbia, which were much more recent and could possibly happen again at any time, be caught by this statute?

Lord Goldsmith: My Lords, as I recall, at Second Reading the Attorney-General dealt clearly with that point. I entirely accept his expert view. He said that the conduct in which this country was involved in relation to those problems, of which one is rightly proud, did not in any way infringe existing international law. This statute will not change that.

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I turn to the second safeguard in relation to the matters which have been raised. No procedure can take place under the statute if this country is prepared itself to investigate and if necessary to act in relation to conduct by United Kingdom nationals. The principle of complementarity, as referred to in Committee, means that unless we are unable or unwilling to deal with conduct by a UK national, it will not be for the International Criminal Court to deal with it but for our own courts.

The third safeguard is most important. No investigation will take place unless an independent prosecutor decides that there are reasonable grounds for doing so (Article 15); no investigation will take place unless that view is also shared by an independent pre-trial chamber (Article 15); no warrant will be issued unless an independent pre-trial chamber is of the view that there are reasonable grounds (Article 58); and, ultimately, there will be no conviction unless an independent court is of that view.

The noble Lord, Lord Lester, is right in saying that the only country which has pursued this route is France. Our European Union partners otherwise have not, although they, too, engage in peacekeeping activities abroad. The French example--I say nothing bad about the French and have the honour to be a member of the Paris Bar--is not one that we should follow. I do not believe that the Government want to follow it and I hope that the noble Lord will not invite us to follow it by pressing his amendment.

6 p.m.

Lord Lamont of Lerwick: My Lords, I want briefly to support my noble friend on the Front Bench. I appreciate the good intentions behind the Bill. I do not in any way decry them but, as I indicated on other occasions, I have a number of anxieties about the Bill.

There was something missing in the contributions of the two noble Lords who spoke against my noble friend's amendment; there was not a single mention of the United States. We are told that all our European partners, other than France, will ratify the statute and pass legislation immediately. But of course the other European countries are not really greatly engaged in peacekeeping.

Surely, the important point is that the United States, which is involved in many more significant peacekeeping operations, has made it clear that it will not participate in the court. I do not know of a single Senator in the United States who has urged the ratification of the legislation. Even President Clinton, when he ratified the statute in the dying days of his presidency, said that the statute required amendment. He did not recommend to the Senate of the United States that it should ratify the legislation in its present form.

I make that point because noble Lords who have spoken hitherto sought to imply that the fears which my noble friend on the Front Bench expressed about the security of our Armed Forces are all unreal. But they are precisely the grounds on which there is very

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strong opposition to the court in the United States. We are sitting here solemnly discussing the issue and want to ratify and establish a court of which Iran is a supporter but not the United States. Is not that an utterly unreal situation?

Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. I wonder whether I understood him correctly. It is true that France, to the extent it has entered the declaration, and the United States are almost alone among more than 100 countries which believe that the court is an appropriate court to express the international view on these matters. However, was the noble Lord saying that our other European partners are not active in peacekeeping? Was he referring to Italy, Luxembourg, Belgium, Spain, Germany, Austria and Finland? Do they not participate in peacekeeping activities?

Lord Lamont of Lerwick: My Lords, to some extent they have all participated. The Italians provided support in the operations against Serbia. However, it is plainly obvious that the United States carries a vastly greater burden and does far more for international peacekeeping than do all those countries put together. I do not mean to be insulting to Luxembourg, but I do not believe that its contribution to peacekeeping is on quite the scale of that of the United States. Of course, it is because of the United States' size and military capability, but the United States is entitled to be worried about what might happen to its troops when it fulfils these international duties.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. As he referred to me as one of those who spoke against the amendment and said that I omitted the United States, I wonder whether he is aware that the problem with the United States goes back to 1945. It is the problem of persuading a very conservative Senate to ratify such international instruments. That problem delayed the International Covenant on Civil and Political Rights; it meant that the genocide convention was not part of United States law for far longer than in any other democracy; it applied also to the torture convention and to a variety of humanitarian and international human rights treaties.

Is the noble Lord then telling us that the United Kingdom's policy should be to be wagged by the United States conservative Senate in this respect?

Lord Lamont of Lerwick: My Lords, the noble Lord referred to the United States "conservative" Senate but he knows as well as I do that it is evenly balanced. I do not know of a Democratic Senator who has voiced public support for the court in the form that it is today. Opposition to the court is extremely strong in the United States. The President has said that he is against it; Mr Rumsfeld has said that he is against it; the Secretary of State has said that he is against it; and numerous Senators have said that they are against it. They are against it because of the risk to American troops in peacekeeping operations.

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The noble Lord, Lord Lester, in his, as always, elegant and learned speech, said, "Ah, but there is nothing new in all this. The law is the law is the law. This has been with us for donkeys' years. We had the Geneva Convention and so on". But what is new is the establishment of a permanent court. What is worrying the United States is that allegations--not necessarily justified--could be made against its personnel in peacekeeping operations.

My noble friend Lord Tebbit gave some examples. These things are always arguable. I had the gravest doubt about the bombing of the Novi Sad Bridge during the action against Serbia. I could not see the military justification. All right, one can say that troops can use bridges but it was far from the site of the military action.

Perhaps I may give another example--not one which specifically involves the United States. I can easily imagine how a charge could be made against Britain and the United States in relation to sanctions against Iraq. I can easily imagine how that could be constructed into a charge of genocide. We are told that approximately half a million children are dying each year. I am not saying for one moment that I agree with that, but I can imagine how such charges could be brought.

Such fear lies behind the perfectly reasonable fears of the United States. France, in a typically cunning French way, has indicated its reservations. The United States has done so in a much more open way. I disagree with those noble Lords who say that those fears are baseless. If they were baseless, I do not believe that the United States would have taken the stance that it has--unequivocally and with a great deal of support in the United States.

Lord Goldsmith: My Lords, before the noble Lord sits down, perhaps he would be kind enough to deal with two matters. First, does he accept that Article 8 represents existing international law in relation to war crimes? Secondly, is it his view that that international law should be upheld?

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