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Baroness Scotland of Asthal: My Lords, I agree with the noble Lord, Lord Avebury, that when British citizens are the victims of serious crime it is a matter of great concern to us all. However, it is the traditional legal position in the United Kingdom that our courts do not take jurisdiction on the basis of the nationality of the victim. For that reason, I must oppose the noble Lord's amendment.

We do not agree that there is a case for changing the general legal proposition in the case of ICC crimes. We do not wish to adopt a position where we are saying that there are different classes of victim; that justice should be done in a different way depending on the nationality of the victim. If a crime is committed against a British national overseas, we expect the country where the crime took place to investigate and prosecute. Occasionally we pursue this through our bilateral dialogue with the country concerned and occasionally we offer support in such an investigation.

But we consider that the proper place for the trial is in the country where the crime took place or the country of nationality of the accused. That is where the relevant evidence and witnesses will be most readily available and where the most swift, effective judicial process is likely to be achieved.

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We also consider that the establishment of the ICC and the provisions in this Bill which incorporate ICC crimes into domestic law would not justify changing this policy. If anything, there is even less reason to take jurisdiction ourselves because, in the case that the state where the crime took place cannot investigate, we would refer that matter to the ICC to do so.

It is appropriate that I should say a word about Yunus Yosfiah. The noble Lord, Lord Avebury, has raised that case on a number of occasions. I should like to give a little of the history in order that there is a proper understanding of what happened.

At the time that Colonel Yosfiah attended the course in the United Kingdom, we were not aware of any allegations against him. I understand that it was several years afterwards that he was first linked with the Balibo incident. With the best will in the world, the United Kingdom authorities can act only when they have the knowledge to do so. From looking at the papers, it is clear that they did not have the knowledge at the time.

As was made clear at Report stage, in future, were such allegations to be made against people visiting this country, we would take it up with their state of nationality; they would be liable to extradition to a state which took jurisdiction over them; or we would surrender them to the ICC if it took jurisdiction. With that explanation, I hope that the noble Lord will not seek to press his amendment.

Lord Avebury: My Lords, I shall not seek to press the amendment to a Division. Now that the facts have become known, the Indonesian authorities have not pressed charges against Yunus Yosfiah, even though there is abundant eye-witness evidence of what happened in Balibo. It is common ground that Yunus Yosfiah was the major in command of the 300 troops who invaded that town and committed that atrocity. Therefore the assumption that the Minister is making, that we can always rely on other governments to prosecute their own citizens when we call their attention to crimes committed against Britons in their jurisdiction, is not justified. The amendment I propose would provide us with a fallback.

As I said, it would be very rare, were we to appeal to those countries to prosecute those who had killed or committed other war crimes against British citizens, that they would fail to exercise their power to do so. I recognise that in only one case in a million should we have a Yunus Yosfiah in this country, know that he had committed such acts and be able to prosecute him in our courts. Nevertheless, I am disappointed that the noble Baroness has not given me a more forthcoming reply at this stage.

I do not, however, feel able to press the matter to a Division. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 65 [Responsibility of commanders and other superiors]:

5.15 p.m.

Lord Howell of Guildford moved Amendment No. 6:

    Page 32, line 30, leave out from ("or") to ("that") in line 31, and insert ("wantonly or recklessly disregarded information that clearly indicated,").

The noble Lord said: My Lords, this amendment seeks to remove certain words from Clause 65 and to insert certain others. We are dealing with the degree of protection, the height of the threshold of protection, for commanders and their superiors in regard to whether, when going about their legitimate business having intentionally made use of force, they have committed or laid themselves open to a charge of having committed an ICC crime.

The problem is one of subjectivity, as we have found throughout the passage of the Bill. It is easy to say with hindsight that a commander should have known at the time what was happening. The questions hang in the air. What is the test? What is he supposed to have known? How should he have known it? Under the Bill as drafted, the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event by the investigatory branch and the prosecutor of the International Criminal Court, assuming that the state is unwilling to make its own investigations.

The Government have repeatedly argued that any higher test, any raising of the threshold to protect members of the Armed Forces from vexatious prosecutions is not necessary. We moved amendments in Committee and on Report that would have corrected the position, and we continue to seek the protection of the Armed Forces, as we have done throughout the passage of the Bill. The wording of the amendment is already incorporated in the legislation of Canada. In our view, after taking careful legal advice, the wording in the amendment would give British Armed Forces a greater level of protection in line with that found in Canada.

Before referring to the Canadian example in more detail, perhaps I may deal with another aspect; namely, the argument used in varying forms in Committee and on Report that none of this is necessary because it is all in Part III the Manual of Military Law and in the Rules of Engagement; therefore, soldiers have always operated under these conditions and there is nothing new.

Apart from the point that I have made ad nauseam, and it would almost certainly plead tedium if I were to repeat it, there is something new. Military commanders will have a new legal jurisdiction with which to contend. Apart from that, there is the question of whether the Manual of Military Law really can be said to inform, now or in the future, members of the Armed Forces who are operating under conditions of intense stress in the complex conditions of modern low-intensity warfare and peacekeeping.

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The noble Lord, Lord Lester, has been diligent in calling our attention to these matters. Part III of the manual states:

    "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 laws of war".

So it could be said that, although there is the new jurisdiction, which is a higher level of argument, at least it was known that these were war crimes.

The question is whether Part III of the Manual of Military Law is, or ever was, adequate provision for soldiers fighting in a war. I understand that it has long since been replaced by a new format and I am not sure that the words appear in that form. I understand that, anyway, Part III of the manual is now out of print, so it is not much help to soldiers in difficulties in the Balkans or wherever they may be as they work out whether they are additionally exposed to some charge that--although they are fulfilling their duty by their own likes and by the likes of their commanding officer, and fulfilling the policy of their government--they may nevertheless be committing an ICC crime. Those are the first points that I want to make about the reason why we are seeking more protection, because I do not think that on that score alone the protection is there.

The broader question I want to examine is raised by the way in which the Canadians have handled this matter. The plain fact is that the Canadians have altered the wording. Therefore, the proposition that this Bill had to reflect verbatim the words of the statute is not an imperative; it is simply a policy wish on the part of the Government. That ought to be made clear. If it is, one is entitled to ask why. The Canadians have managed to get different words on to the statute book because they wished to have a higher level of protection for their own armed forces carrying out their duties.

So the question is this: if the Canadians can change the wording, why cannot we? Is the Canadian statute inconsistent with the Rome Statute? It is not as though Canada is one of the renegade states that have merely signed on for the ride and do not really support the whole project. On the contrary, Canada has been zealous and to the fore in promoting the ideas of the International Criminal Court; its lawyers and statesmen have worked extremely hard to do so. Canada is a very important signatory. Therefore, I should like a better answer to that question than I received on Report. If the Canadians can do it, why cannot we; and why do we not want to protect our commanders and their superiors in the way the Canadians do?

Finally, perhaps I may ask a rather narrower question, but on the same point. Will the Minister who is to reply confirm that, should our amendment fail, Clause 65 as drafted requires specific intent to be proved? I am moving into deep legal waters, but that is clearly the position as it is expected to stand unless amended in some way by the Bill. If it is the intention

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that specific intent has to be proved, could some kind of explanatory memorandum be provided along with the other publicity about which we know very little that will be provided to commanding officers and armed troops so that they know the score and know the new conditions under which they are potentially operating?

If the answer is that this is not a "specific intent" offence, then we are in quite different territory. That would be a definite signal that a lower test is being adopted which will deprive our commanders of a necessary safeguard and which in effect appears to rewrite English criminal law.

So clarification is needed on some important questions which were not clarified earlier. We need the matter to be crystal clear if we are, in fairness, to provide the right context in which not only can the court go forward, but our Armed Forces, going about their duty as servants of the state, can proceed without finding that unwittingly or unfairly they have committed an offence under a new law and perpetrated a new crime. I beg to move.

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