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Baroness Scotland of Asthal: My Lords, I reassure the noble Earl, Lord Attlee, that the manual is still held by all units, or should be. The part to which the noble Earl referred is currently out of print because it is being revised. However, I can certainly reassure the House that there has been, and will be, no significant change in relation to those matters.

Earl Attlee: My Lords, I checked that very point this morning. Will the Minister undertake to do a double

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check, as it were? If she finds that she has been incorrectly advised, perhaps she will inform the House at some convenient point.

Baroness Scotland of Asthal: My Lords, I shall certainly do that. However, I have been advised by the Ministry of Defence that the position I have just stated to the House is the correct one. Of course, we realise that sometimes not all units have what they are supposed to have. I do not know what the position is with regard to the noble Earl's unit but that is what I am advised should be the case.

Earl Attlee: My Lords, I checked the position in two units.

Baroness Scotland of Asthal: My Lords, the answer remains the same. In relation to that matter, I reassure the House that there is no significant change envisaged as a result of the new Bill that we hope will be enacted in due course.

I turn to the point made by the noble Lord, Lord Lamont, as regards intentionally attacking civilian objects and the mistake that was made in relation to the bombing of the Chinese Embassy. However, that was clearly a mistake. It did not amount to a crime and it did not fall within the category of issue for criticism.

Lord Lamont of Lerwick: My Lords, of course I accept that it was a mistake. I accept that there was no intention to bomb the Chinese Embassy. However, the Bill uses the phrase, "should have known". That is what my query relates to. Surely one could argue that the NATO forces should have known where the Chinese Embassy was situated. That is the whole point about maps and having it clearly marked.

Baroness Scotland of Asthal: My Lords, as regards the meaning of the phrase "should have known", what we are talking about is a neglect of the basic duty that a military commander has to ensure that those under his effective command and control do not commit war crimes. That principle has been summarised by the former head of the British Army Legal Services, Major General Anthony Rogers, in his book on the laws of war. It may assist the House if I quote from that book. It states:

    "Responsibility may arise if war crimes are committed as a result of the commander's failure to discharge his duties either deliberately or by culpably or wilfully disregarding them, not caring whether this resulted in the commission of war crimes or not".

It does not refer to the circumstances that were involved in the incident at the Chinese Embassy; that is, a genuine mistake. The fact that that principle can be implemented in practice was shown in numerous war crimes cases which our judges, and those of our allies, dealt with in the aftermath of the Second World War.

Lord Lamont of Lerwick: My Lords, what happens if there is a case of negligence? The Minister will be

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aware that a CIA official was sacked after the incident I mentioned. Would a sacked official not also be liable to be summonsed before the ICC?

Baroness Scotland of Asthal: My Lords, the noble Lord will know that subsection (2)(a) and (b) of Clause 65 are conjunctive. I shall read them to refresh the noble Lord's memory.

Lord Lamont of Lerwick: My Lords, I have it here.

Baroness Scotland of Asthal: My Lords, I am grateful that the noble Lord says from a sedentary position that he has that. Therefore, I draw his attention to paragraph (b) which states:

    "he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".

Both paragraphs (a) and (b) have to be proven. If we apply that test to the circumstances to which the noble Lord referred, he will see why the mistake that took place in the bombing of the Chinese Embassy does not fall within the section. The noble Lord, Lord Lester, has already dealt with the issues in relation to the test. Therefore, I shall not reiterate them but simply say that I agree with the noble Lord's assessment. I accept--

Lord Waddington: My Lords, I am sorry to intervene at this stage. I have listened with the greatest attention to what the noble Lord, Lord Lester, had to say. I think that I understood what he said. Is the position that whereas we chose to incorporate in our Bill the exact words of the ICC statute, the Canadian Government elected not to use those precise words but words which reflect in exactly the same way what is contained in the statute? If that be the case, have we not at least arrived at the point--which I think is a new point in our deliberations--that we do not actually have to put in our own legislation the exact words of the ICC statute and we can, if we think fit, amend the Bill to change the wording so long as the new wording does not depart from the intention of the ICC statute? If we have reached that point, we have moved our ground to some extent.

Baroness Scotland of Asthal: My Lords, it is right that I should explain what has happened in relation to the Canadians. It is indeed true that the Canadian legislation speaks of "criminally negligent in failing to know"; and that that is slightly different from the statute.

We understand from speaking to our Canadian colleagues that this language was introduced specifically in response to jurisprudence developed by the Canadian courts under their Charter of Rights and Freedoms. As the notion of "criminal negligence" has been thoroughly analysed by the courts in the light of their charter, the Canadian Government believed it preferable to use that language. However, they consider the test to be no different. That was only to ensure that the Canadian courts could accurately reflect what is contained already in the statute.

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We are not in that disadvantageous position because we do not have the Canadian jurisprudence here in Britain. Therefore we do not need to change or alter the statute in any way. One of the difficulties is the issue of complementarity, as my noble and learned friend the Attorney-General said. One of the greatest protections we have for our Armed Forces is that British courts, British judges, will be trying these issues. Our servicemen and women will be subject to the British system and, if proven guilty of any of these issues, will be held responsible to British justice. That is our greatest protection for our armed servicemen and women.

We should like there to be no chink of light between the ICC Statute and our statute so that it cannot be said that our statute does not cover precisely the same ground as the ICC. The ICC will be deprived, therefore, of an opportunity to say that we have failed to comply. If they are suspected of doing something wrong, we wish to try our men and women ourselves. If we reflect precisely the wording of the statute, we limit the opportunity for our men and women to be subject to difficult situations and to deprive our courts and our judges of the opportunity to deal with them appropriately.

5.45 p.m.

Lord Lester of Herne Hill: My Lords, does the Minister agree with me that one of the advantages of our approach over the Canadian approach is that it achieves better legal certainty for officers and those under their command?

Baroness Scotland of Asthal: My Lords, it does indeed. Although we understand why, because of their particular situation, the Canadians have felt the need to do as they have, they run the risk of it being said that their approach is not precisely the same. One could argue that they leave a chink of light between the two systems: that they should not or could not deal with the matter appropriately. We do not wish to put our servicemen and women in that jeopardy. We wish to ensure that, if there is a difficulty, our courts, our judges, will have full responsibility to deal with it. By arranging our Bill to reflect precisely the language, we believe that we better protect our servicemen and women.

As the noble Lord, Lord Lester, said, the noble Lord, Lord Howell, is not correct in saying that the amendment he proposes is exactly the same as the Canadian legislation. Regrettably, it is not; it is materially different. We think that it would be disadvantageous to our servicemen and women.

The noble Lord, Lord Lester, said rightly that both issues are contained in the British Manual of Military Law which remains current to this day. The noble Lord was also right to say that it is reflected accurately in the US Department of Army Field Manual dating from 1956. So those issues are covered.

The concern of the noble Lord, Lord Howell, is that the ICC might seek to second guess the decision of a British military commander. The best protection we

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can give our Armed Forces is to make sure that the ICC has no chance to second guess any such decision. For that reason, Clause 65 is expressed in the way that it is.

We have a long history of behaving appropriately and properly. The term has been fully understood by the servicemen and women of this country. There has not been difficulty in that understanding. It is right to remind your Lordships that the Ministry of Defence was assiduous in its efforts in this regard and has taken every opportunity to ensure that the servicemen and women of this country are appropriately protected by this legislation.

Perhaps I may quote a recent Statement made by the Secretary of State for Defence in another place. He said:

    "The priority of the Ministry of Defence in the drafting of the International Criminal Court Bill and its passage through Parliament has been to ensure that members of the armed forces are fully protected from malicious or ill-founded prosecution by the ICC. The armed forces have been closely involved in the consultation process. I am confident that the Bill before Parliament provides all necessary protection".--[Official Report, Commons, 16/3/01; 756W.]

I hope noble Lords will accept that the Secretary of State for Defence properly takes into account the trials and tribulations which the armed servicemen and women will face and properly gives consideration to what needs to be done to protect them. We have looked together at the definition of "should have known". We are confident that the steps which have been taken make clear the basis upon which the servicemen and women will be found responsible. Perhaps the clearest exposition of this principle was contained in the judgment of the Nuremberg Military Tribunal in trying members of the German High Command. It was stated:

    "Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence".

It is a high standard which has been well established for some time.

This notion of criminal negligence can also be found in similar terms in Article 86 of the 1977 Additional Protocol I to the Geneva Conventions and in the statutes of the Yugoslav and Rwandan tribunals. The ICC and, by virtue of Clause 65(5), the British courts, if they needed to interpret the wording in question, would thus have recourse to the detailed and prudent jurisprudence of the Hague and Arusha tribunals as well as that from the trials of Nazi and Japanese war criminals.

I regret to say that the amendment of the noble Lord, Lord Howell, would go against this international practice. The amendment talks about wanton or reckless disregarding of information that clearly indicated that war crimes were being committed. This might leave serious gaps. What happens if the commander, in flagrant dereliction of

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his duty to prevent such crimes, did not ask for or read reports which talked about such crimes; or, if having read reports which spoke obliquely about massacres, he failed to request the additional information which would have made that plain?

We believe that we have made proper provision to protect our men and women, that our British courts will have the tools to give them that protection, and that we should support the international community in this praiseworthy attempt to bring all under the same umbrella. The noble Lord spoke earlier about significant changes. There have not been significant changes. Our servicemen and women are already bound by those rules. They already apply them and they have already demonstrated that the confidence that we have traditionally put in them is merited. There is no reason for us to feel anxiety on their behalf.

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