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Lord Lamont of Lerwick: My Lords, I believe that Article 8 does express existing law. However, as I said in Committee, it is my understanding that several of the definitions have been altered. I am not in any way complaining about that, but I believe that what the noble Lord says is broadly right. What is completely new is the establishment of a permanent international court.

I am not sure about the noble Lord's second question--

Lord Goldsmith: My Lords, my question was whether the noble Lord agrees that that international law should be upheld.

Lord Lamont of Lerwick: My Lords, of course I believe that international law should be upheld.

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However, for reasons upon which I shall enlarge later, I have the greatest reservations about the establishment of this court.

Baroness Williams of Crosby: My Lords, I apologise for my inability to take part earlier in Committee. I should like to address the attitude of the United States. The United States is a country with the greatest possible respect for law. I do not, therefore, believe that to water down the International Criminal Court is the appropriate way to deal with the current objection to it, in particular by the US Senate. It is perhaps worth mentioning that President Clinton signed the treaty as a preliminary to ratification by the Senate, which may not take place.

A substantial change in American opinion is under way, if not yet at the level of the Senate certainly in some other quarters. Noble Lords may have read an extremely important article last month in the National Journal, which is perhaps the most authoritative publication on the proceedings of Congress and activities in Washington generally. That long article dealt with how attitudes in the Pentagon and elsewhere had changed as a result of the involvement of the United States in certain peace-keeping activities, notably in Bosnia and Kosovo. Addressing the experiences in KFOR and, before that, Bosnia, the article pointed out that senior military leaders increasingly pondered how military tactics had to change, and be substantially restrained, as a result of taking part in peace-keeping activities. Many of us in this House, including myself, saw this process take place some 20 years ago in Northern Ireland when our own military personnel began to learn how not to be warriors, as it were, but essentially powerful policemen in dealing with a civilian clash--if you like, a kind of religious or ethnic conflict--between one group and another. As the article makes plain, that has been taken on board by the US military in respect of the limits within which it is free to act.

As to setting out international law once again in terms of the International Criminal Court, as the noble Lord, Lord Goldsmith, pointed out, it is quite clear that one must reassert the position in the face of an extremely troubling evolution of certain civil and international conflicts in other parts of the world. It is troubling that today the ratio of military to civilian deaths (1:10) is almost the reverse of the position at the beginning of the past century. The deliberate targeting of civilians, in particular children, pregnant women and some of the most vulnerable people in society, is a terrifying characteristic of some recent major conflicts, particularly internal ones. The war in the Democratic Republic of Congo which begins to take in more of its African neighbours is one example, but there are many other equally troubling ones.

Many of us believe it to be of the greatest possible urgency that in relation to those who are engaged in peace-keeping activities an attempt is made to establish an international rule of law that applies to military as well as civilian actions. I believe that in the United States there is beginning to be a substantial shift of opinion in consequence of that country's own

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involvement in peace-keeping activities. It would be a disservice to those in the US minded towards international action if we watered this down and failed to provide ourselves with an example. Far from assisting those in favour of ratification of the proceedings of the International Criminal Court, we would discourage them in an extremely serious way.

6.15 p.m.

Lord Monson: My Lords, as a layman naturally I hesitate to tangle with the noble Lord, Lord Goldsmith, but I cannot help wondering whether his confidence that the highly subjective, and in some respects ambiguous, wording of paragraph 2(b)(iv) of Article 8 cannot be used against our servicemen is perhaps excessive. Can we be certain that judges and prosecutors will automatically take the commonsense view that he anticipates? When our forces helped to liberate Kuwait they might have been responsible for extremely serious environmental damage. In the event, happily they were not so responsible, even if the Iraqis were, but they could not have known that in advance. Take at random the much smaller provision in paragraph 2(b)(xviii) of Article 8 which outlaws the use of asphyxiating gases. I apprehend that that might outlaw the use of CS gas. I am told that that is extremely unpleasant to those on the receiving end, particularly if they are asthmatic or have other respiratory problems, but in practice its use may be the lesser of two evils at the time. I have great pleasure in supporting the noble Lord, Lord Howell, in this matter.

Lord Tebbit: My Lords, I had not intended to engage in this debate. I came to listen and hoped to be educated. I believe that I have been far from educated by the speech of the noble Baroness, Lady Williams. No doubt inadvertently, I believe that she obscured the difference between a peace-keeping operation and total war. They are very different operations. In the former restraint is required, but in the latter restraint is of a rather different order. The use of nuclear missiles is, for example, an obvious possibility in total war. There is not much restraint in that. Even in the case of peace-keeping, I believe that there is a marked lack of understanding.

Through the medium of Questions for Written Answer, recently I tried to explore the rules of engagement given to our forces operating in Northern Ireland and Sierra Leone. Clearly, in Sierra Leone the rules of engagement permitted our soldiers to kill women and children. That is not permitted in Northern Ireland. But I am told that the rules of engagement are far, far too secret for us to be allowed to see them, or to be told in what way they differ as between those two theatres of war. Is it already contrary to international law as it applies to war to kill women and children in Sierra Leone? I do not know. But the noble Baroness does not appear to know the difference between peace-keeping and war.

Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, perhaps he can explain his

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position. A week or two ago the International War Crimes Tribunal, in a ruling strongly welcomed by Madeleine Albright and the New York Times, decided that an act of rape committed against a small number of Bosnian women was a very severe crime against humanity that needed to be punished. Is the noble Lord's position that such a crime, whether or not it is committed in armed conflict, should not be dealt with by an international criminal court? I do not understand the noble Lord's position. That was the judgment of Judge Florence Kumba of Zambia in a case involving three Bosnian Serbs at the International War Crimes Tribunal. That decision was widely praised in last Sunday's edition of the New York Times. I should be very grateful if the noble Lord could explain his position.

Lord Tebbit: My Lords, my position is to try to understand the effect of this legislation. I slightly resent the suggestion that somehow I am against the punishment of soldiers who are guilty of such indiscipline as to rape civilians, or even military personnel, in time of war. One does not have to go into the future, or the recent past even, to look at that. But within the British armed services such acts have long been a matter subject to military discipline and to harsh punishment.

Lord Avebury: My Lords, I strongly resent the imputation levelled by the noble Lord, Lord Tebbit, against our Armed Forces in Sierra Leone. To say such a thing in this House, when everyone admires enormously the way in which our Armed Forces have performed in Sierra Leone--the way in which they have restored stability, at least to a certain area of the country, and have earned the plaudits of everyone who lives in Freetown and well beyond--is incomprehensible and absolutely outrageous. I hope that the noble Lord will, on reflection, think better of that remark because, as far as I am aware, there has never been any accusation against a member of our Armed Forces in Sierra Leone of wilfully killing women and children.

I would be horrified if the noble Baroness, Lady Scotland, stood up and told the House that was permissible within the rules of engagement. I do not believe such a rule exists. The noble Lord has somehow invented it in order to make a spurious argument in favour of his noble friend's amendment, but it is not the kind of argument that will appeal to your Lordships.

Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. It is an indisputable fact that, during the rescue operation of British servicemen who had been taken hostage, armed women and children were encountered and were shot dead by the British forces. That happened.

Lord Avebury: My Lords, I hope that the noble Lord is not changing his tack to suggest that our Armed Forces should not be able to fire back when under attack from an enemy. Everyone knows that women

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and children are employed in the irregular armed forces operating in Sierra Leone. But in the way that the noble Lord was putting the matter, they were civilians. If he cares to withdraw the accusation that our Armed Forces would fire on civilian women and children, I would be very happy.

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