§ Motion made, and Question proposed, That the Clause stand part of the Bill.
§ 11.27 p.m.
§ Mr. Frederick Elwyn Jones (West Ham, South)
I desire to raise with the Undersecretary of State an important aspect of this Clause, namely, the words at the end of subsection 1 (c),or in any other manner whatsoever not authorised by international usage.This is a very important Clause, dealing with the offence of aiding the enemy. This subsection reads:Any person subject to air-force law who with intent to assist the enemy—(c) having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage.It appeared from the Committee stage of the Army Bill that the reference in those concluding words is a reference to the various international conventions which entitle the holding Power to require a prisoner of war to perform certain duties and to render certain defined and limited services.
The words, as they stand in the subsection, are very vague and no guidance is given to the serving airman, or indeed to the Air Force officer, by the terms of the Bill as to what manner of aiding the 711 enemy is authorised by international usage so that he may be immune from any proceedings in his own courts for aiding the enemy and be immune from proceedings by the holding Power for disobedience of lawfully given orders by the holding Power. Numerous difficulties arise, and the principal difficulty is for the prisoner of war to know what he may lawfully do and what he may not lawfully do.
§ 11.30 p.m.
§ The position concerning British airmen in international law appears at the moment to be dealt with by the 1929 Convention, but in 1949—nearly six years ago—there were agreed at Geneva four Conventions relating to the treatment of prisoners of war. They were the Prisoners of War Convention itself, and three others for the protection of war victims; that is to say, those concerned with the amelioration of the conditions of the sick and wounded of the Armed Forces in the field; the amelioration of the conditions of sick, wounded or shipwrecked members of the Armed Forces at sea, and the protection of civilians in time of war. Those are all very important Conventions, signed by the representatives of the British Government at the time. In many respects they protect the prisoner of war in a more substantial way than did the Convention of 1929.
§ I raised this matter with the Secretary of State for War in the debate on the Army Bill and received an undertaking that he would look into it. In the case of the Air Force, as in the case of the Army, there was the same difficulty, namely, that officers and airmen who happened to have the misfortune to be taken prisoner of war found it difficult to know precisely where they stood. The Manual of Military Law was silent on this subject, and although I do not know what the state of the Manual of Air Force Law is on the matter, I think it is equally silent. So far as the Army and the Air Force are concerned, there is a complete void as to the instructions and guidance the soldier and the airman may receive.
In the course of the evening I have received a letter from the Secretary of State for War, and I have his permission to quote from it. This is what he says:
These Conventions have been ratified by forty-five countries, including some members of the Commonwealth"—
and including, if I may interpose, the Soviet Union, and approved, I understand, by the West German Government. For some reason which I quite fail to understand, the British Government have taken no steps to secure ratification of these important Conventions, nor, I regret to say, have the Government of the United States. When I say "have taken no steps" they have, at any rate, taken no Parliamentary steps to introduce the necessary legislation to secure ratification.
The letter goes on:
All four of the Conventions involve some legislation before they could be made fully operative by the United Kingdom.
This letter goes on to remind me of an answer given by the then Minister of State on 2nd February, 1953,
… when he stated that it was proposed to ratify the Conventions when the necessary legislation had been enacted…
and also points out that on 16th December last the Home Secretary said
… that it was not possible to say when legislation could be introduced.
The Secretary of State for War says today that he cannot add to those replies.
§ We are left in a state where there is no undertaking by the Government to bring in legislation to ratify these Conventions. I should have thought they would have been a far more admirable purpose for the legislative minds of the Government to be applied to than some other pieces of legislation with which the House has dealt in recent months—but that may be a purely partisan point which, perhaps, I should not have introduced into this non-controversial question.
The letter continues:
… it will not be possible to bring the Army Bill into operation for some time after it is enacted. In the meantime, Part I of the Manual of Military Law, 1951, will be largely rewritten; a new and up-to-date Part III on the laws and usages of war will also be published.
The Secretary of State for War says that careful consideration will be given to those steps which may be necessary to acquaint soldiers of their liabilities if ever they become prisoners of war.
§ So, through inaction on the part of the Government, we are faced with this unsatisfactory position of legislating for the Royal Air Force and introducing into 713 the most important part of it something which, if the airman goes wrong about it, may result in his being court-martialled for aiding the enemy; and that, I believe, is a capital offence. If I may say so, I think we are in a twilight stage; the twilight stage between the 1929 Convention and the ratification of the 1949 Convention, which, so far as the Korean hostilities were concerned, the Government announced it would consider as binding. I think that there were reciprocal agreements on the other side, but at least the Government tried to do something for the men in that way.
§ The Air Force Manual is silent about the matter. If this Air Force Bill acquires the force of law in the near future, what will be the position? Is the Royal Air Force to be directed that the governing Convention is the 1929 Convention, or is it to be told that the standards which apply are the standards in the 1949 Convention? Is it not desirable that that difficult situation be put beyond doubt, either in Clause 24, or in some provision in this Bill?
§ I should like to know what are the expectations of the Air Ministry about the publication of the new Air Force Manual, and we shall await with great interest the publication of the equivalent to Part Three of that Manual dealing with the laws and usages of war. Many of my hon. Friends on this side of the Committee have been anxiously awaiting the nature of the Government's declaration on the circumstances in which the dropping of hydrogen or atom weapons may be deemed to be lawful. That raises highly controversial issues of international law with regard to which the Air Force Manual will, presumably, make some declaration.
§ In all the circumstances, I have an uneasy feeling that if we let this Clause go through as it is we are leaving the Royal Air Force, by reason of the inaction of the Government in relation to this 1949 Convention, in a most unsatisfactory state. I think that the Secretary of State should have done better than send a letter saying that nothing could be done at the moment.
§ The Royal Air Force must face up to the urgency of this problem; because, first of all, it is the Royal Air Force that is particularly susceptible to regulations about conditions for prisoners of war by 714 reason of possible flights over enemy territory. The Committee should demand some elucidation before we agree to this Clause.
§ The Under-Secretary of State for Air(Mr. George Ward)
I am most grateful to the hon. and learned Member for West Ham, South (Mr. F. Elwyn Jones) for having raised this matter, but I am afraid that I was not in the Committee at the time that this was discussed during the Committee stage of the Army Bill. It is, therefore, the first time that I have been able to think about it, and he would not, therefore, expect me to give a hard and fast ruling on it tonight. I should like to know what guidance we propose to give the Royal Air Force through the medium of the Manual of Air Force Law, and I assure the hon. and learned Member that I will look into that point as soon as I can.
§ Mr. Leslie Hale (Oldham, West)
Really, the Committee cannot allow a provision involving the death sentence to pass merely with an observation by the Minister that he is not quite sure what it will be imposed for but that he will make a few inquiries about it and hopes that such instructions as are given will be capable of being understood by the people to whom they are to be given.
How are those instructions to be given? They are to be given in the Manual of Air Force Law, which, I take it, corresponds to the Manual of Military Law, with which I have had some familiarity. I do not know what happens nowadays, but in the days which I recall the private soldier who had got hold of a copy of the Manual of Military Law was regarded as a barrack-room lawyer and a man to be very much discouraged. But usually it was not possible for a private soldier to get the Manual of Military Law and find out what the law was; and, with respect to those men, a great many of them would not have understood it even if they had got it.
That is not a very unfair observation to level against all ranks in the Army when the Under-Secretary of State for Air says that he does not understand the Clause and is obliged for having his attention called to a Clause which has emerged from two years in Committee, and which prescribes the death sentence. The House of Commons is called upon very often at midnight to take decisions 715 which it might be reluctant to take at 3 o'clock in the afternoon; but to allow a Clause of this kind to pass with that limited comment and observation just is not good enough.
My hon. and learned Friend has done a service to this Committee in raising this matter, and in raising it with his usual erudition. These observations were made by a number of us to some extent in the discussion on the corresponding Clause in the Army Bill. The Clause contains quite a number of dubieties. All of us are grateful to the people who served on the Select Committee, and we appreciate the difficulty of producing matters which are the result of compromise. All of us realise that the Clause is probably a considerable improvement on its predecessor. But, as I said before, once the Committee has reported, once the Bill is drafted, and once it is brought to the House, we cannot abrogate our responsibilities by saying that they were able men on the Select Committee, that they considered it at great length and came to the conclusions which they have reached, and that this is the best possible form of words and, it being such, we must accept the Clause.
Indeed, the Select Committee did not reach this form of words. It was done by the Parliamentary draftsmen. The Report, as I recollect it, does not contain these words in the sense that they are put—
§ Mr. Hale
I am obliged; then I accept the correction. All that has happened is that I have to withdraw—I hope, with generosity, but with reluctance—what I said in exonerating Members of the Committee from the responsibility of drafting the Clause.
Let us look at the Clause to which my hon. and learned Friend has called attention:Any person subject to air-force law who with intent to assist the enemy".I want to pause at that stage, because I am certain that when a fuller reply is made from the Government Front Bench, we shall be told that that controls everything, that those are the controlling words, and that it does not matter what a man does unless he does it with intent to assist the enemy. —
716 The first thing to question is, what is the test? I never speak much about the law. I never knew much about it, and I have been so out of practice that I know less than I did. But, as I understand it, the test of intent is drawn from the facts before the tribunal. The court-martial has to say, "What is the logical view to be taken from the facts that are now before us? Does it appear that this was done with intent to assist the enemy?"
Let us take a simple case. I do not want to take extravagant cases. I quoted this in a slightly different connection on the Army Bill. Take the man who works on a farm. If he does work of any kind which is not provided for by the international Convention, he is doing work which assists the enemy. We had some controversy in the House over the detention of German prisoners of war on farms in this country after actual hostilities had ceased but while a state of war still technically existed.
§ 11.45 p.m.
§ What is the position of a man who works, it may be not quite obviously voluntarily and not obviously compulsorily, in circumstances in which, when he comes to trial, it is quite impossible for any evidence to be available of the circumstances in which he worked? The Under-Secretary of State says he does not know. I am not saying that unkindly, for I do not know and I have spent a lifetime in the law. If the Undersecretary of State does not know, and my hon. and learned Friend the Member for West Ham, South does not know, how is the prisoner of war to know? I do not want to put my ignorance in the scale to affect the judgment of hon. Members.
§ I do not want to take any extreme instances, but in the international field today a man may have the greatest difficulty in knowing the enemy. A ship sailing through the Straits of Formosa today may be machine-gunned from the air, and a man does not know the enemy. He does not know who the Chinese are and which is the Chinese Government concerned.
§ In the last war, there were nations who were enemies in 1939. There were changes of front and of Governments in the Balkans. No one knows better than the Under-Secretary of State for War, 717 who served in that area with such distinction, that there were times when no one knew who the enemy was. There was a whole variety of Governments contesting against one another. One might be a prisoner of the Russians, the Communists, the Yugoslav rebels, the Chetniks, and I know not what, all operating in the Balkans. I do not want to take extravagant points. I hope that someone will be able to decide who the enemy was when a prisoner's trial takes place, but the prisoner of war is entitled to know where he stands.
Clause 24 (1, c) states:
having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale,"—
Hon. Members should note the comma after "morale," which is an unusual feature at that stage—
or in any other manner whatsoever not authorised by international usage, …
I understand that comma to be intended to make a definite break in the reasoning at that stage. Therefore, we now have it that one of the offences on the part of any person subject to Air Force law is to do
… with intent to assist the enemy…
… in any other manner whatsoever not authorised by international usage…
Does it mean that or not? I submit that the comma makes it mean that
… not authorised by international usage…
does not control the whole Clause. It is said that there are three separate offences under the Clause. One can either serve or aid the enemy in the prosecution of hostilities, or serve or aid the enemy in measures calculated to influence morale, or in any other manner not authorised by international usage.
§ Anything to do with this subject which is covered by the Hague Convention is a matter in which the death penalty is involved. I was told on a previous occasion that I need not worry too much, that a man might not be shot at all but be imprisoned for life. But imprisonment for life is a rather heavy penalty to pay for acting not in a manner authorised by international usage, though it is fair to add that it must be in such a way that a court thinks that he intended to assist the enemy.718
§ As I understand it, "intent to assist the enemy" does not imply some change of front. It does not necessarily import treason, in the sense of a man having thrown his lot with the enemy, and saying, "They are now the enemy and these are my people and I associate with them." The Clause speaks of the man acting in any manner calculated to assist the enemy. In other words, if he weakens, if he yields to solicitation to do something capable of being regarded as war work not authorised by Convention, if he yields to demands that he should work in the mines or on a farm, if it is not authorised by a Convention he commits an act for which the death sentence can be called for by a court-martial.
§ I suggest to the Under-Secretary that it would be bringing the House into disrepute if, merely because the time is late and because a similar Clause has been discussed and accepted—with considerable dubiety and only after a Division on part of it—the Committee let this matter go like this. To do so would really be abrogating our duties to the community, particularly to men being conscripted into the Forces, men who are not educated in the law, who are told at the age of 18 that they have to go into the Forces, to find out what is the law, to act in accordance with it, and accept the penal consequences of failing to act in accordance with it.
§ But the final conclusion is not only this. A man may be either a Beau Sabreur, or an Admirable Crichton, a man with all the virtues and knowledge of Benvenuto Cellini, Leonardo da Vinci, and all the rest. He is called up for service in the Air Force, and must, as the Manual of Air Force Law says, know what his duties are; he must know that he is liable to the death sentence if he acts in a manner not in accordance with the international usage. He knows all that, and has mastered it.
§ He has done more than the Undersecretary and I have done, and more than any Member of the House has done. He knows it all—and then, when he is taken prisoner, he suddenly finds out that the Hague Convention is in force. He has not a clue as to what is a Convention by reading the Manual of Air Force Law. He has got to master the Hague Convention and the International Convention of Geneva. He has got to know the Conven- 719 tion of 1929, now in force, and the Convention of 1949, which might be in force quite soon.
§ Then, having done all that, having earned the applause of men and women and probably qualified for a job as editor of the "Titbits" advisory column on current problems, he must find out what nations have ratified the Convention, whether the enemy he is now fighting is bound by it, to what extent the Convention is reciprocal, and so on. It is rather a lot for a lad of 18, being called up for four shillings a day pay, to be put in such a dilemma. In these circumstances, I suggest that he ought to have a little more information, and the House ought to have more information before we discuss this matter.
§ Air Commodore A. V. Harvey (Macclesfield)
I only want to say that whatever is written into the Manual of Air Force Law should be written in simple language that the ordinary man, and not necessarily only lawyers, will understand. I think that the hon. Member for Old-ham, West (Mr. Hale) has made rather heavy weather of this matter, but then he is a lawyer and one would expect him to do that. I am speaking from my experience in the last war. The aircrew did not run into any great trouble because of the points which he has been making. They were adequately briefed before taking off to fly over enemy territory or even over their own territory.
I think that the young aircrew men who are going to fly over enemy territory ought to be told as little as possible. If they are to be bound up in a whole mass of law, and they get before an enemy lawyer, heaven help them. They will really be in trouble. The one idea of the young prisoner is to get out of the country again. Provided that he knows his unit, the type of aircraft and the equipment, and so on, there is very little that he ought to know. I recommend, as the Under-Secretary has said, that he should look into this matter, and he is right to do so. It needs very careful thought, and he should not be led away by the solicitors and barristers into a long rigmarole which will confuse everyone.
§ Mr. Geoffrey Bing (Hornchurch)
There is one question put by my hon. Friend the Member for Oldham, West (Mr. Hale) to which we should have an 720 answer. He mentioned the case of a British ship sunk in the Sea of Formosa, and asked who would have provided the ammunition, the bombs, and the aircraft. We all know which Power would have provided them, but in a discussion of a non-party Measure of this sort it would be tactless to name that Power.
What we are really concerned with is the fact that the Committee—and I take my share of responsibility for this—included these words. They were not the words of the Parliamentary draftsmen, but of those who dared to differ from them and insisted on their going in. They were designed to protect our own prisoners of war—and those prisoners of war are placed in a very difficult position by the refusal of the Government to ratify these Conventions.
The Minister should tell us why the Government—and the Government of the United States, if the Government feel that they can speak for them in this regard—are unable to ratify the Conventions which other Powers have ratified. Otherwise we had better strike out those words. They were put in under the belief—and here I speak for myself—that we were going to ratify the Conventions, as other civilised Powers had done. I cannot understand why Her Majesty's Government have not seen fit to do so, and the House should be told the practical reasons why it has been impossible to do so.
Is it because of the situation in Malaya, or because these Conventions deal with the civil population, or something else? All sorts of suggestions are being put forward.
§ Mr. Hale
My hon. and learned Friend will also bear in mind the fact that in Korea Commonwealth units were serving with our troops. Some members of the Commonwealth have ratified the Conventions, so it may be possible for two prisoners of war, serving in the same regiment—certainly in the same corps—to be bound by different rules upon this point.
§ Mr. Bing
The Under-Secretary should explain what he means bynot authorised by international usage.We all approached this question on the basis that there existed certain international Conventions which would be ratified by all the Powers concerned. If it is the intention of the Government to ratify them immediately, the words have 721 some sense; otherwise, what do they mean? Do they mean "not authorised by a Convention to which we have been a party but have refused to ratify"? Are we bound by a Convention which we have not ratified? Does the Minister say that British prisoners of war would be treated in a separate category, or excused, because Her Majesty's Government have not seen fit to ratify the Conventions while other Powers have done so? What do these words mean, in view of the apparent refusal of the Government to ratify the Conventions? That is a question to which we should have an answer from the Under-Secretary.
§ Mr. Eric Fletcher (Islington, East)
I thought that we were going to have some further reply either from the Undersecretary or, preferably, from the Solicitor-General. With all respect to my hon. and learned Friend the Member for Hornchurch (Mr. Bing) and my hon. Friend the Member for Dudley (Mr. Wigg), who were members of the Committee which devoted so much time to this matter, and for whose efforts we are all very grateful, as my hon. Friend the Member for Oldham, West (Mr. Hale) said, I do not think that that absolves any of us from doing our duty and analysing the details of the Clause, because it involves a matter of life and death. I do not agree with the hon. and gallant Member for Macclesfield (Air Commodore Harvey) that we should be doing our duty if we dismissed this question lightly. We are entitled to know what the Clause means. Can the Solicitor-General explain, for the guidance of the Committee, his interpretation of the following words, in Clause 24?
Any person subject to air-force law who with intent to assist the enemy…having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or"—these are the dubious words—in any other manner whatever not authorised by international usage… shall, on conviction by court-martial, be liable to suffer death…
§ 12 midnight.
§ If those words mean anything, they mean that there are circumstances which prisoners of war may, in accordance with international usage, aid the enemy in the prosecution of hostilities. The words themselves mean that there are circumstances in which, under international 722 usage, it is legitimate for prisoners of war to give their aid and assistance to the enemy in the prosecution of hostilities or of measures calculated to influence the morale of the enemy.
§ I should have thought that it was elementary common sense that it must be most difficult for the ordinary airman, taken as a prisoner of war, knowing that there are circumstances in which he can under international law legitimately aid the enemy and certain circumstances in which he cannot do so except at the risk of suffering the death penalty, to know where to draw the line and to appreciate where he stands. It is no use hon. Members opposite saying that this is a matter of mere law. It is a matter of the greatest concern to the airman.
§ I do not see how we can expect the ordinary airman to know where the line is drawn as between the circumstances in which international law permits him to aid the enemy in the prosecution of hostilities and the circumstances in which he may suffer the death penalty. Surely it is not good enough for us to pass legislation of this kind in such a vague and ambiguous form.
§ Only the other day we had a long discussion about the merits of capital punishment as applied to civilians, and large numbers of hon. Members wished to abolish it altogether, but unless we are careful we shall pass a Bill involving airmen in liability to capital punishment in circumstances in which none of us knows what the law is, and we do not even know the circumstances which will involve liability. It is not good enough.
§ The Under-Secretary said he was not present during the debate on the corresponding Clause in the Army Bill, but the debate was a week ago and he has had an opportunity to read it. It is not good enough for him to come here, knowing that this point was certain to be raised, and try to put the Committee off with the few glib words that he uttered. I appeal to the Solicitor-General to say something to satisfy my hon. Friends and myself, and to answer the points which have been raised.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I will endeavour to do what I can. The problem is not easy. We thought in the Select Committee that we were trying to legislate for a long 723 time. I suppose we all hope that in various international processes there will not only be ratification of the 1949 Convention, about which I am not qualified to speak at the moment—and I should probably be out of order if I did so—but, in future, other Conventions progressively bettering the lot of prisoners of war.
What the Committee has to do in these Bills is to find, if it can, a form of words sufficiently elastic so as not to require amendment of the Measure if there be some future reform to the advantage of the prisoner. We must find, if we can, an adjustable form of words to that extent. I would not, speaking with all humility, claim to have found the best form of words. I can say only that the Secretary of State for War and the Undersecretary of State for Air both gave an undertaking to see if they could hope to improve the form of words which we have adopted.
As the hon. and learned Member for Hornchurch (Mr. Bing) rightly says, they are words intended for the protection of the prisoner of war and are put there only in his interest. I would not dare to suggest to the Committee now—it is very difficult to do so—any other form of words which would better define the case and apply to the state of international law and international usage at the given moment when the words have to be applied. Necessarily some vague form of words has to be used to allow for future changes. That is the legislative difficulty of the form of words, and the Committee will agree that some form of words is necessary for the safety of the prisoner of war.
How does one put the position better for the aid of the airmen and the soldier than in the Manuals? It is said that he is not likely to read the Manuals, and nobody would blame him for that. But he is less likely to read a series of Geneva Conventions, because they are less accessible. Part HI of the Manual is not concocted by lawyers, but is subject to the consideration of the Law Officers of the Crown.
The current redrafting of Part III of the Manual of Military Law is at present under consideration and will represent the best we can give the soldier. No doubt the Manual of Air Force Law will follow 724 in due course. That is subject to amendment, as we all have cause to know, because of horrid slips which somebody sticks in from time to time, as international usage changes.
The Secretary of State for War and the Under-Secretary of State for Air have given an undertaking to the Committee that they will do their utmost to find a better form of words, if one exists. We looked at the matter hard in the Select Committee, and found that it was difficult to discover a better form of words.
§ Mr. E. Fletcher
What would the Solicitor-General say is the verb which governs the phrase:… any other manner whatsoever not authorised by international usage….Surely the verb must be "serves" in "serves with or aids the enemy"?
§ The Solicitor-General
That is another matter at which we shall be glad to look. It did not occur to us in the Select Committee that it could be treated in the manner in which the hon. and learned Gentleman is treating it. I will gladly take the opportunity to look at it again.
§ Mr. Hale
"Influence on morale" is a most difficult phrase to interpret. We have had a great many decisions on that point in civil law in time of war. We passed Emergency Regulations dealing with the making of statements calculated to destroy the morale of the people, or assist the enemy, an offence; and a great many varied, remarkable, and regrettable decisions were made. If the Solicitor-General will refer to a very great book "Free speech in the United States" by Dr. Zecheriah Chafee, he will find a whole series of cases.
On this question of the influence on morale we have the celebrated case where someone who was knitting socks for soldiers was told "Those socks will probably never get to the soldiers." In these circumstances I should have thought it a little off-handed to say, "We will look at it and perhaps give an opportunity for it to be talked about on Report." We shall certainly talk about it on Report, unless some further undertaking is given.
§ Mr. Elwyn Jones
The observations of the Solicitor-General have a considerable amount of force behind them, in that he has stated that this is not an easy problem, 725 and I am not pretending that it is. I sympathise with the difficulties of the draftsmen in this matter, but our duty as a Committee is not to make their task easier, but to protect those of our citizens affected by this legislation; and the generality of these words is much too wide in the case of a capital offence.
Look at what they say. In effect, any airmanwho with intent to assist the enemy…having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence the morale, or in any other manner whatsoever…Look at the width and generality of that. I do not know whether it is for the prisoner to prove that it was authorised by international usage or not—perhaps not. Perhaps the burden remains on the prosecution to prove that it was not authorised by international usage.
But having defined the kind of service or assistance contemplated as constituting a capital offence in paragraph (c), in terms of aiding in the prosecution of hostilities or engaging in measures calculated to influence morale, having taken the trouble to specify those two particular matters, we then have this monstrous generality,or in any other manner whatsoever…
§ It really will not do.
§ I hope that the hon. and gallant Gentleman opposite who seems a little impatient does not think that these are lawyer's quibbles. These things mean life or death to a soldier, and they may make a great difference to the position vis-a-vis his captor and what he can reasonably be commanded to do by his captor. Having had some experience of war crime trials after the war, I think that there may be certain repercussions in that field also; though heaven forbid that there should be any situation in the future which would give rise to that sort of matter coming before lawyers again.
§ These are not lawyer's quibbles. The matter is very important, and I feel that, whatever words are used, these will not do. The words used in the subsection in question are, "authorised by international usage". Does that go wider than these matters to which we have added the phrase, "as governed by international convention"? I am a little stale in my 726 international law on this subject, and I am open to correction, but it seems to contemplate something rather wider than those commitments to which participation in international Conventions give a right.
§ Mr. Elwyn Jones
My hon. Friend has developed a skill in using words in his own inimitable fashion.
If the phrase "international usage" is retained, does that bring in practices authorised by customary international law? In all our Governmental approaches to these matters we have always been a little reluctant to stick solely to the black and white letter of commitments into which we as a Government have entered by way of international convention. I think that there will be remarkable and interesting developments from the point of view of laws of warfare, particularly in regard to hydrogen and atom bombs, if we start getting involved in what is right and what is not in regard to customary international law. There is a strong section of thought which holds that customary international law clearly condemns the use of these weapons as manifestly illegal. Therefore, that phrase again gives rise to very serious difficulties.
I hope that I shall not be thought to be making clever points about this subject. These are matters of substance, and we really must have an undertaking from the Government that when we get to the Report stage we shall be given a full opportunity of considering the revised version which the Government have undertaken to provide for us after giving the matter what I am sure will be their most anxious consideration.
§ 12.15 a.m.
§ Mr. Bing
I only wish to add one word, particularly in view of the conciliatory speech of the Solicitor-General on this matter. I think that we all appreciate the attitude with which the hon. and learned Gentleman approached the matter in the Select Committee and in this Chamber. The difficulty of those of us who inserted these words, however inadequate they may be, was that we imagined that we were safeguarding people by certain Conventions which would be ratified by the Government.
We should like to hear from the Solicitor-General whether the Govern- 727 ment propose to ratify the various Conventions which have been mentioned in the course of this debate, because, otherwise, we shall, so to speak, put our prisoners of war in a much worse position than the Service men of some other Power which may have ratified these Conventions and whom we take as prisoners.
This is really a ridiculous and absurd position. It is much better to say, "as ratified by other Powers," or to use some such phrase as that. If, in fact, we are not going to ratify these Conventions, or if it is the considered view of the Government that they are going to ratify eight or nine Conventions, then they should tell us, and we should reconsider the wording on that basis without going into the whole morality of whether or not we should ratify them. Is it or is it not the intention of the Government to ratify those conventions?
§ Clause ordered to stand part of the Bill.
§ Clauses 25 to 63 ordered to stand part of the Bill.