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Baroness Scotland of Asthal moved Amendment No. 34:

On Question, amendment agreed to.

[Amendment No. 35 not moved.]

Clause 54 [Offences in relation to the ICC]:

Baroness Scotland of Asthal moved Amendment No. 36:

    Page 27, line 10, leave out ("or") and insert (", a United Kingdom resident or a").

On Question, amendment agreed to.

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

Baroness Scotland of Asthal moved Amendment No. 37:

    Page 29, line 1, at end insert ("or a United Kingdom resident").

On Question, amendment agreed to.

[Amendment No. 38 not moved.]

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

[Amendments No. 39 and 40 not moved.]

Baroness Scotland of Asthal moved Amendment No. 41:

    Page 29, line 17, at end insert ("or a United Kingdom resident").

On Question, amendment agreed to.

[Amendment No. 42 not moved.]

Clause 61 [Offences in relation to the ICC]:

Baroness Scotland of Asthal moved Amendment No. 43:

    Page 30, line 15, at end insert ("or a United Kingdom resident").

On Question, amendment agreed to.

Clause 65 [Responsibility of commanders and other superiors]:

Lord Howell of Guildford moved Amendment No. 44:

    Page 32, line 10, leave out from ("or") to ("that") in line 11 and insert ("consciously disregarded information which clearly indicated,").

The noble Lord said: My Lords, Clause 65 deals with the responsibilities of commanders and other superiors, who are held responsible for offences committed by forces under their effective command and control. The change of wording proposed in the amendment returns to the theme that we have referred to earlier this evening of protection for the Armed

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Forces going about their legitimate business, which inevitably includes the use of force internationally if we are to be effective in fulfilling our international responsibilities and contributing to the peace and stability of the globe.

The alarm bells that were sounding in high military circles because of the wide and vague definitions of war crimes when brought into our statute law also sounded in respect of this clause. A senior defence source has been quoted on the subject in more than one newspaper. The clause states:

    "A military commander ... is responsible for offences committed by forces under his effective command and control ... as a result of his failure to exercise control properly over such forces".

That applies where,

    "(a) he either knew, or owing to circumstances at the time, should have known that the forces were committing or about to commit such offences, and--

    (b) he failed to take all necessary and reasonable measures".

We are familiar with the words. Clearly those sentiments have caused considerable alarm. We should spend some time considering the dangers that could arise from the clause.

The problem is one of subjectivity, as with many other interpretations that we have dealt with this evening. With hindsight one can say that a commander should have known something, but what is the test? What is he supposed to have known? How should he have known it? Our worry is that 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 ICC. We have to ask whether the ICC is in the best position to understand the details of military actions and the pressures on commanders and senior officials and what they are supposed to have known at the time. Perhaps they should have known many things, but they may have been cut off from the facts by particular circumstances.

In one sense the proposals are not objectionable, in that they bring home the fact that responsibility will be pinned on commanders as well as on those fighting in the front lines, who may have difficulty deciding whether they are exposed to some risk and are perforce committing something that could be described as a war crime. That seems fair.

However, we have to ensure that the responsibility is placed in a reasonable and sustainable way on commanding officers. If not, there could be no end to the way in which responsibility can be piled on commanders and commanders-in-chief. One newspaper article went on to quote Mr Michael Caplin, a former lawyer to the Chilean ex-dictator General Pinochet, who questioned how the Prime Minister would have been able to defend himself had he been charged with bombing targets in Kosovo in the knowledge that civilians might be killed. It was an intentional policy decision that would appear to raise difficulties under the clause. We are all very concerned

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about the security and safety of our Prime Minister, so we have to get rid of any possible doubts about the issue in this debate.

We believe that the amendment would relieve at least one of the strong concerns that are clearly felt by the Armed Forces. Of course, it will be said that we cannot do that because it would upset the wording of the Rome Statute.

Perhaps noble Lords will take my word for it if they have not had an opportunity to study it, but I ask them to look at the legislation that has passed through the Canadian Parliament in relation to these very matters. The Canadians are very keen on the ICC; they are anxious, as we are, to be founder members; and they are anxious to make it work. The following words appear in their law:

    "The military commander knows, or is criminally negligent in failing to know, that the person is about to commit, or is committing, such an offence".

That is a very different kettle of fish. It is a different and much more rigorous test. It is one that I believe could be far less subjective and much more objective. Criminal negligence is a matter that can be defined, approached, analysed and handled by the ICC, or by the domestic courts if they wish to concern themselves with it.

Therefore, it is not an argument to say that those kinds of words cannot be modified, unless it is the wish of this Government to accept the Rome Statute wording beyond necessity and to the point of total adherence to the words of the statute. It cannot be said that it is not possible to depart from those words. The Canadians have done so. They are, and we hope will be, highly effective participants in the workings of the court.

Of course, these issues are of enormous concern to the United States at many levels, not only in Congress or in the Armed Forces but in the highest legal circles, as I know from having checked the matter personally. The noble Lord, Lord Goldsmith, rightly said in one of his fascinating interventions that we must bring along the Americans. I agree. I believe that it is the higher purpose of the Bill and of our deliberations that we do everything possible to bring along the Americans and to break the logjam on that side of the Atlantic. If we fail to do so, the entire credibility of the court will be seriously compromised.

Those who want the Bill to work and who want the international court to operate and to carry credibility should be thinking in terms of bringing along the Americans. At the same time, they should address the concerns of the Armed Forces, which are also the concerns of the Armed Forces in the United States. It is in that spirit that I move the amendment. I beg to move.

Lord Lester of Herne Hill: My Lords, this amendment raises a serious issue. Even at this hour, I shall detain the House for a few moments upon it. It is based on a complete misunderstanding of the existing position, both in this country and in the United States.

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Clause 65 as it stands reflects Article 28 of the statute, but it does much more than that. It sets out the well known principles that have been part of our law and practice for at least a generation. I need only turn to the 1958 edition of the Manual of Military Law, to which I referred earlier, written or edited by Judge Sir Hersch Lauterpacht and, as I recall, probably by the late Colonel Gerald Draper, another great expert, as well. Paragraph 631--I remind noble Lords that this was written in 1958 and not 2000, and I hope that the generals and others will know it almost by heart, or that certainly they will read it when they look at the report of this debate--states:

    "In some cases military commanders may be responsible for war crimes committed by subordinate members of the armed forces or other persons subject to their control. Thus, for example, when troops commit, or assist in the commission of, massacres and atrocities against the civilian inhabitants of occupied territory, or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander".

It continues:

    "Such responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned".

These words follow:

    "The commander is also responsible, if he has actual knowledge or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and if he fails to use the means at his disposal to ensure compliance with the law of war".

The footnote states--this is not from some rare textbook, but from the Manual of Military Law which is issued to members of the Armed Forces:

    "The failure to do so raises the presumption--which for the sake of the effectiveness of the law, cannot be regarded as easily rebuttable--of authorisation, encouragement, connivance, acquiescence or subsequent ratification of the criminal acts. In numerous war crimes trials--of which the Case of General Yamashita ... is the most important example--various tribunals acted upon that principle".

Then the footnote gives the example from the United States Supreme Court. It explains how that court dismissed a case where General Yamashita was held responsible for negligently failing to ensure proper control over his troops. The judgment of the military commission came up for review on a question of law before the Supreme Court of the United States on a petition of a writ of habeas corpus. The Supreme Court dismissed the petition. Its judgment--this is not in the ICC statute, but in the jurisprudence of the United States Supreme Court--contains an authoritative exposition of the law applicable to the responsibility of miltary commanders.

11 p.m.

Lord Lamont of Lerwick: My Lords, would the noble and learned Lord also like to tell the House that there was an extremely strong dissenting judgment in that case?

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