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Lord Lester of Herne Hill: My Lords, I am not learned and I am not sure about being noble. I have

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never held office as a Law Officer or a judge, but I am delighted to be thought to be that by the noble Lord, Lord Lamont.

I am not concerned with the validity of the Yamashita dissent or the majority judgment. The point is that the Supreme Court of the United States, in dismissing a petition in that case, gave an authoritative exposition of the relevant law which is in British military law handbooks for all our troops and it is entirely consistent with the ICC Statute. Therefore, I beg the Conservative Front Bench and the generals to read that handbook and tell our American friends that they might also look at their own jurisprudence where they will find the same principles on American constitutional jurisprudence as there are in English law and in the ICC Statute.

Were one to do what is suggested in the amendment and take out the words in Article 65(2)(a) and include instead a stricter test, that would be entirely inconsistent with the vital principle of responsibility which has been recognised since at least Nuremberg. Indeed, in German law, as pointed out in another passage, it was recognised in pre-Nazi Germany as well. Indeed, some of it goes back to the American Civil War. So let us not keep harking on about slavishly following some new-fangled ICC standard. This is old-fangled, thank heavens. It has been well established. It is time that the Conservative Opposition accepted a long-standing principle which goes back to the time of the Second World War.

Baroness Scotland of Asthal : My Lords, I too would like to reassure the noble Lord, Lord Howell. I know that he has expressed a great deal of anxiety about this issue. I hope that it will be of comfort to him to know that the Americans were very heavily involved in drafting this part of the statute. They had no problems with it and were content.

The noble Lord, Lord Lester, is quite right when he says that the rules of engagement outlined in the ICC Bill and the Rome Statute are long and well established. I believe that earlier at Report stage we went through in some detail the benefits that accrued as a result of successive Conservative governments rightly bringing in appropriate legislation to enforce the Geneva and other conventions.

I make it absolutely plain--the noble Lord said that this was an opportunity for us to be clear about command responsibility--that a commander is responsible for offences only if he fails properly to exercise control over military forces under his effective command and control. A commander must have known or, owing to the circumstances at the time, should have known, that the crimes were being committed or were about to be committed. A commander is responsible for offences only if he failed to take all necessary and reasonable measures within his power. Command responsibility as defined by the statute is, as we have already said, an established concept in international law and relates to the concept of neglect of duty, which already appears in the Service Discipline Acts. I hope that I can give the noble Lord comfort on that point.

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Although there has been much vaunting in the press of the concerns of the Armed Forces, the MoD has been assiduous in its duties--it has crawled all over the Rome Statute and the Bill and it is content, as are the higher echelons of each of the services. They said that they are satisfied that the legislation should not lay the Armed Forces open to prosecution when they are undertaking their legitimate duties as directed by a democratically elected government. We all know that we can get excited about press stories and how much reliance we put on statements that we read. However, I hope that tonight we have put to rest some of the concern and anxiety that has been wrongly generated.

In moving the amendment, the noble Lord is seeking to protect service personnel. I agree completely with his intention and his motives. However, I fear that the amendment that he proposes would have the opposite effect. It seeks to create a difference between the standards applied under the law of England and Wales and those applied by the ICC on the question of command responsibility. By doing so, the noble Lord would, unintentionally I am sure, create a gap in the complementarity regime. There would be an increased risk that the ICC could claim jurisdiction over cases involving military commanders, even where the case had already been investigated under domestic law, on the basis that differing standards apply. It is precisely to avoid that risk that we have chosen to adopt almost verbatim the wording of Article 28 of the statute.

Command responsibility should not cause concern within the military. As the wording makes clear, that is a form of neglect of duty, not a test of strict liability. Commanders at all levels already take responsibility for the actions of their subordinates. A commanding officer who permits his subordinates to use unsafe practices on a training range, for example, will find himself liable to disciplinary action when an accident occurs. The provision merely reflects that principle on a wider canvas.

I would like to refer to a comment that was made by the noble Lord, Lord Kingsland, in a debate on the ICC in this House on 20th July 1998. I hope that I will not make him blush by doing so. The noble Lord referred to the trials at Nuremberg, and, with great persuasion, said:

    "The great strength of the Nuremberg trial was the fact that it caught the big fish; it did not just catch the 'bit part players'. That is what gave the Nuremberg process its real credibility".

Lord Kingsland: My Lords, I thank the noble Baroness for giving way. What lay behind that remark in 1998 was my sadness that, despite the intense deliberations leading up to the Rome Statute, the negotiating states were unable to agree on the insertion of a crime for the offence of aggression which was absolutely central to the prosecution at Nuremberg and, indeed, whose absence is one of the reasons why my noble friend Lord Howell has such fears about the consequences for military commanders.

We should have been much happier, on the Opposition Front Bench, had the crime of aggression been included in the Rome Statute. That would have

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provided a proper framework against which the actions of military commanders would have been judged. Perhaps I may say, humbly, that the speech which I made in 1998 should be read in that context.

Baroness Scotland of Asthal: My Lords, I certainly take on board fully what the noble Lord says about that. But I still say, with great respect to him, that what he said then, he said well. That comment accurately reflected what we are trying to do now.

The Nuremberg process had real credibility. The noble Lord, Lord Kingsland went on to say that,

    "unless the big fish can be caught ... the major object of an international court .. will never be achieved".--[Official Report, 20/7/98; col. 626.]

We agree with the noble Lord. We consider that the principle of command responsibility serves exactly that purpose: to catch the big fish. I empathise with what the noble Lord said about the act of aggression. That was not included. But noble Lords will know that in seven years' time, we shall probably be revisiting that selfsame term and it may be that unanimity will be possible then, although it has not been possible before.

In the light of those comments, not least our assurance that we have drafted this clause with the protection of service personnel very much in mind, I hope that the noble Lord will not seek to press the amendment.

Lord Howell of Guildford: My Lords, I strongly agree with the words that the noble Baroness repeated earlier that she had procured from the chiefs of staff or, at any rate, senior military officials about their right to have protection so that they can pursue their legitimate aims. I cannot remember the Minister's precise words but they sounded admirable to me. I wholly agree with them.

I also agree wholly with the principles behind the clause; that senior military commanders shall be held to account. I was very interested in the wording which the noble Lord, Lord Lester, produced from the longstanding rules of engagement. Of course, those words are correct and good and they are clear enough to commanders. He mentioned the additional phrase "through reports received by him". If that was in the Bill, it would be a slight improvement on what we have here.

But, of course, in a sense, the past is the past. The noble Lord quoted the Yamashita case. I may be using words which are too blunt at this late hour but that is a fairly rotten example. To this very day, there is resentment in Japan about whether that was justice or merely victor justice, even though it was under United States' law. I am not sure that that is something that we want to see elevated and repeated in the context of the higher jurisdiction which we are seeking to create.

In any event, the point was that it was under United States' law, and the past rules of engagement under which senior commanders have operated in the British Army have been in the context of British law. But the whole point now is that we are creating a new and higher jurisdiction not with primary but with extensive

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powers which may, in the last instance, have the last word on who shall be investigated and charged. Of course, if it is a senior commander, the very whiff or suggestion of investigation is immediate ruin and that is very nearly the end of the matter for the public servant concerned.

I am left uneasy by what the noble and learned Lord has said and by what the noble Baroness has said. I still do not begin to understand why the Canadians, who are much more strongly--or at least equally as strongly--in favour of this than the present Government, can manage to finesse this matter. Why is it that they can change the words and we cannot? That has not been explained.

This is a wholly undesirable note on which to come to the end of Report stage. We are simply left without an explanation of why other countries, great democracies that are totally committed to the creation of a permanent court, can apparently change the words to adapt to their domestic and constitutional needs and be more effective and fair when we cannot. This is an unhappy and unsatisfactory ending to our discussions and one that leaves many important questions in the air. The hour is late and I shall not test the opinion of the House, but I want to record firmly that at Third Reading we need to return to these matters in detail. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

[Amendment No. 45 not moved.]

Clause 67 [Meaning of "UK national" and "person subject to UK service jurisdiction"]:

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