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Lord Lester of Herne Hill: My Lords, Article 28 of the ICC Statute provides as follows:

I shall leave out unnecessary words--

    "shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be"--

I emphasise the following words--

    "as a result of his failure to exercise control properly over such forces, where

    (i) That military commander"--

again, I emphasise the following words--

    "either knew or, owing to the circumstances at the time, should have known, that the forces were committing or were about to commit such crimes; and

    (ii) That military commander ... failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".

Those words are matched by Clause 65(2), which Amendment No. 6 seeks to amend.

The mental element required is knowledge or what in English criminal law would amount to recklessness or criminal negligence. That accords with the position described in paragraph 63l of the British Manual of Military Law for 1958 which the noble Lord, Lord Howell of Guildford, cited. It also accords with the position in the US Department of Army Field Manual 27-10 of 1956 on the law of land warfare--the chapter on "Remedies for Violations of International Law"--which, in paragraph 499, says:

    "The term 'war crime' is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime".

Thereafter, in paragraph 501, it uses the very words that appear in the equivalent section of our manual that I understand was amended by Sir Hersch Lauterpacht, Colonel Gerald Draper and Joyce

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Gutteridge in 1958. So, on both sides of the Atlantic, we have exactly the same concept put into the military manuals on the laws of war dealing with this matter.

The noble Lord, Lord Howell of Guildford, is quite right to say that it is not enough to rely upon manuals issued to members of the Armed Forces. Of course, one of the merits of Clause 65(2) and of Article 28 is that this will now become the law of the land in a much clearer way than simply incorporating it into military manuals.

Amendment No. 6 would introduce a more restrictive test than is needed to establish liability as a matter of current English law--I emphasise "current English law"--and as a matter of current international law because the test that it would introduce is wanton or reckless disregard of information clearly indicating that the forces were committing, or were about to commit, such crimes.

Amendment No. 6 is more restrictive in requiring either "wanton" disregard or "reckless" disregard of information clearly indicating,

    "that the forces were committing or about to commit such offences",

unlike the position in English law and in international law--I shall be corrected by the noble and learned Lord the Attorney-General if I am wrong--where criminal knowledge means awareness that a circumstance exists, or a consequence will occur, in the ordinary course of events (a view reflected in paragraph (3) of Article 30 of the ICC Statute), and where the court has regard to all relevant circumstances, including what the British and American manuals refer to as knowledge not only through reports received by the commander but also through other means.

I should point out that those principles were fully reflected in the judgments of the majority of the justices--and of the dissenting minority, Justice Murphy--in the case of Yamashita, which we have discussed previously and in respect of which I have made it clear that I should have been for the minority, not the majority.

There is a misunderstanding about the position in Canada that I must correct. The test of Amendment No. 6 is more restrictive than the one adopted in Canada in the legislation giving effect to the ICC Statute, where either knowledge or criminal negligence in failing to know is required, as set out in Section 7(1) of the crimes against humanity and war crimes legislation of 2000, which I shall not read into the record unless any noble Lord is misguided enough to ask me to do so. I summarise what the Canadian legislation does: it does not rewrite the ICC statute. It incorporates into the equivalent Canadian concept of criminal law what is contained in Article 28 of the ICC Statute.

The New Zealanders have used the same approach as that contained in this Bill: they copy the language word for word into the New Zealand statute. The Canadians have used the concept of criminal negligence rather than doing it in that way, but it comes to exactly the same thing. The degree of

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knowledge is exactly the same. No specific intent is required in the sense of the specific intent for the crime of murder, but criminal negligence or recklessness is required if all the other ingredients are satisfied.

For those reasons we should be opposed to an amendment that would be retrograde. It would actually dilute criminal responsibility in this area, as it has been incorporated into English law and international law since the time when I had the privilege of doing two years' national service. We are therefore opposed to the amendment.

Lord Lamont of Lerwick: My Lords, I should like to support the amendment moved by my noble friend Lord Howell which I believe is designed to give added protection to British forces as regards the question of whether "intent" was involved in an alleged war crime. I should like the Minister to reply to one particular point. I have in mind the wording in Clause 65, which my noble friend's amendment seeks to amend. Can the Minister say how she would interpret that wording when applied to the question of the NATO bombing of the Chinese embassy in Belgrade?

Obviously one accepts that it was an accident, but, equally, the bombing of civilians and of an embassy is an offence under the Bill. That is very relevant to the question of "should have known", the phrase used in the Bill, because the explanation that was offered for the bombing was, first, that an out-of-date map had been used. The second explanation, as reported in newspapers, was that the CIA had intended to hit the arms agency rather than the Chinese embassy, but had no numbers for the street in question. Therefore, those concerned had merely transferred the street numbering from a parallel street and applied it to the one in which the embassy was situated. Either way, it was clearly an error and, according to many sources, the embassy was marked unambiguously on maps.

Indeed, I have a note with me of a CIA spokesman saying that they had not bothered to locate where the Chinese embassy was because they were not trying to hit it. Of course, that is but one explanation. I should like to know quite how that fits in with the wording that a military commander "should have known" that the forces were about to commit an offence. Plainly, that could be argued to be an offence under the Bill. Can the Minister say what we would be able to plead in defence of NATO troops?

Earl Attlee: My Lords, I declare an interest as I am a serving officer in the Territorial Army, Therefore, I could, potentially, be affected by the Bill at some date in the future. Noble Lords will recall our debates at Report stage on the matter. My noble friend Lord Howell then referred to the Emperor Caligula and the poor promulgation of his laws.

The noble Lord, Lord Lester, said in reply to my noble friend,

    "Is the noble Lord aware that in this case the words are not put on very tall pillars in very small writing so that citizens cannot read them? They are put into the handbook of military law, to which every serving member of the Armed Forces has access, as I well recall from personal experience".--[Official Report, 8/3/01; col. 367.]

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This evening we have discussed the Manual of Military Law, Part III. I checked the validity of the noble Lord's reference to the 1958 version of the Manual of Military Law. I sought to follow the advice of the noble Lord at col. 432 on 8th March when he said that the Conservative Front Bench ought to check it. I tried to check it, but unfortunately I found that Part III of the Manual of Military Law is not held at unit level. Therefore, serving officers--

5.30 p.m.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Earl for giving way. Will he accept that what I said referred to my rather inglorious period of military service--I think I made it clear--when I was a second lieutenant in the Royal Artillery and had access to the manual and had to read it at the time? I did not refer to the present position. I have no idea whether it is now available; I referred specifically to 1958.

Earl Attlee: My Lords, I just quoted the words of the noble Lord on Report when he said that present members of the Armed Forces can refer to the Manual of Military Law, particularly Part III in connection with land warfare.

I was not surprised to discover that the Manual of Military Law is not issued to units because, according to Amendment No. 20, Chapter 1, paragraph 8(b) of the Manual of Military Law, it is no longer printed. It states:

    "The Manual of Military Law, Part III, deals with that part of international law known as the law of war on land and is now out of print".

My noble friend Lord Howell has already referred to that point. This goes to the heart of our concerns. Our officers and NCOs are expected to, and will, adhere to the Geneva Conventions and their principles. However, the noble Lord, Lord Lester, expects the members of our Armed Forces to be experts on the details of the law of armed conflict. I have spent more time studying health and safety and equal opportunities than I have studying the law of armed conflict. Is the noble Lord confident that the manual is available to all members of our Armed Forces? Will the Minister ensure that Part III is reprinted and distributed right down to sub-unit level in military units so that officers and senior NCOs can study the appropriate law?

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