HL Deb 15 December 1993 vol 550 cc1361-8

3.10 p.m.

Lord Campbell of Alloway rose to call attention to the purpose and continuance of the Falklands investigation; and to move for Papers.

The noble Lord said: My Lords, this Motion for debate was introduced at Question Time in your Lordships' House on 6th December by my noble friend Lord Buxton of Alsa. There are two fundamental factors which govern the rules of war and their incidence under the Geneva Convention and our own domestic law as to murder on the battlefield. The first is the actual situation on the battlefield, about which the noble and gallant Lord, Lord Bramall, will speak. He has walked that battlefield. The second factor is the true perspective in which the mutation of moral values in such a situation on the battlefield ought to be perceived. The right reverend Prelate the Bishop of Guildford proposes to speak on that issue.

I wish at the outset to seek the indulgence of your Lordships so that a little extra time may be given only to the noble and gallant Lord, Lord Bramall. His contribution is of prime and pivotal importance.

Noble Lords

Hear, hear!

Lord Campbell of Alloway

My Lords, I extend a warm welcome to our maiden speaker, the noble Lord, Lord Burnham.

It is always said that one should start by stating one's objective. The object of tabling this Motion is to suggest that the investigation serves no useful purpose whatever and should be discontinued. Your Lordships may believe that it is also of importance to consider how, why and when the investigation was set up and, indeed, for what purpose.

As appears from the Official Report of 6th December, information given by my noble and learned friend the Lord Chancellor goes some of the way but not all of the way. The purpose, so it was said, was to maintain the rules of international law under the Geneva Convention. However, no complaint had been received from the Government of Argentina or from any international body. We were told that the investigation was set up because certain allegations were made in Excursion to Hell, which was published in 1991. The investigations were set up by the Secretary of State for Defence in August 1992. He referred those allegations to the Crown Prosecution Service, which concluded that an investigation was warranted and referred the conduct of the investigations to the Metropolitan Police. That we all know now.

On 6th December my noble and learned friend the Lord Chancellor also informed your Lordships that the ultimate decision as to whether to charge these men with murder on the battlefield will be taken by the Director of Public Prosecutions under the surveillance of the Attorney-General and that it cannot be said when such decisions will be taken.

We know—not from what was said on 6th December—that no complaint whatever was made at the time of the Falklands campaign and that no complaint has been made to the commanding officer, who even as yet has not been interviewed. We have no satisfactory answers to the questions put by the noble Lords, Lord Stoddart and Lord Strabolgi, on 6th December as to the substance of the allegations, if otherwise than in that book, and why acts committed on active service are not dealt with by the services in the usual way.

Perhaps my noble and learned friend the Lord Chancellor, who speaks in your Lordships' House on behalf of the Attorney-General, the Judge Advocate General and the Crown Prosecution Service, will confirm two points. The first is that neither the Attorney-General nor the Judge Advocate General were consulted by the Secretary of State for Defence before setting up this investigation. The second is that the Attorney-General has not as yet been consulted by the Crown Prosecution Service; that is, neither before nor since the matter was referred to the Metropolitan Police.

I ask those questions because we are entitled to know the answers. The investigation casts a sombre shadow of shame on the honour of our armed forces. It is perhaps fortunate that the first debate should ensue in your Lordships' House where we have the benefit of the Cross-Benches and the Bishops' Bench. Therefore, in the exercise of our advisory role, contributions from all sides of your Lordships' House may be put at the disposal of the Government and the Attorney-General so that, on the advice of the Attorney-General in his semi-judicial role, these investigations may be ended.

In tendering such advice, Mr. Attorney-General will no doubt consider the actual situation on the battlefield, which is where one always starts; the reliability of the evidence which has been assembled; whether in truth any question of the maintenance of the rule of international law arises; whether he will consider our own domestic law as to lawful killing in the heat of war and in the actual exercise of war; and whether the investigation should continue to gather evidence of conduct on the battlefield to establish whether these men should be charged with murder in a series of state trials some 12 years after the event. Mr. Attorney-General will also consider the likelihood of a conviction for murder at the hands of a British jury. He will also consider the overriding public interest, which takes into account the moral mutation point, as to whether this investigation should continue. If so minded, he may also take into account some of the horrors of that "dirty war": the brutal treatment of the conscripts; the devilish contrivance of those lethal booby-traps which beggar belief; and the sham surrender under a white flag when they advanced to open fire on our men.

The author of that book, whose objectivity is open to question, gives an account of what an anonymous member of our armed services told him about an incident on the battle-field when he killed a member of the enemy forces who was crawling towards his foxhole, pinned down by sniper fire. Any of those men crawling towards that foxhole could have tossed in a hand-grenade. One does not have to be very bright to realise that.

The author gives another account in which the same anonymous person saw another member of our armed forces, with whom he shared the foxhole under sniper fire, also anonymous, kill other members of the enemy forces. That was at a time when their military duty was to advance and pursue the enemy in retreat on the battlefield. There was no way that they could take prisoners with them.

Are they obliged to take prisoners (at the epicentre of the battle) which would inhibit the due performance of their military duty? Why should they? If those incidents occurred, they occurred under fire on the battlefield before any general surrender and before any ceasefire; before any spare manpower was available to take and guard prisoners; before any individual offer of surrender had been accepted; and before, according to the rules of war, Articles 4 and 5 of the Geneva Convention, it was incumbent to accept any offer of surrender.

In neither of those incidents did those men who were killed: fall into the power of the enemy so as to entitle them to prisoner of war status until release or repatriation. That is not a battlefield situation. With respect to those who think otherwise, such as the noble Lord, Lord Williams of Mostyn—and I am glad to see him in his place—it is simply not understood how, on any objective examination, it could be said that the continuance of the investigation is requisite to maintaining the rule of law.

The rules of war are not always so useful, even if you survive, but they are even less useful when you are dead. On the battlefield, under fire, pursuing an enemy, account must always be taken of sham offers of surrender. On the battlefield, Articles 4 and 5 of the convention cannot apply to confer prisoner of war status. Those offering to surrender in such circumstances have not fallen into "the power of the enemy". Dr. Goodhart, a law don at Caius, writing in The Times, took the view that by waving a white flag, you do not fall into the power of the enemy as you have the right and duty to escape and continue to fight. He wrote: If you are killed, that is not murder but war. No duty is owed to an enemy until his offer of surrender has been accepted, and it is sometimes dangerous to do so". As to our own domestic law, Hale took the view in 1736 that killing in the actual exercise of war would not be murder. My noble and learned friend Lord Hailsham took a similar view in the case of Howe in 1987 and Lord Goddard took a similar view in the case of Page in 1953.

In the irenic spirit of the exhortation to government to repair that stigma of shame, I beg to move for Papers.

3.25 p.m.

Lord Irvine of Lairg

My Lords, whatever the outcome of the current investigations, one thing must be declared: nothing can diminish the remarkable feats of arms accomplished by the Parachute Regiment in the closing stages of the Falklands War. Nor should we forget the 250 men of the task force who did not return home. Nor should we forget the three islanders who died and the 650 Argentinians who lost their lives. Nor should we forget that 12,000 Argentinian prisoners were returned in strict compliance with the Geneva rules.

I do not believe it appropriate to repeat the detailed allegations of war crimes, or to debate their merits, which were graphically made in the press and in the "World in Action" programme this May. Those are part of the investigation. Allegations against the Argentinians arise out of the circumstances of their surrender at Goose Green, where the sister battalion of No. 3 Battalion won a critical engagement. Allegations against No. 3 Para arise out of its capture of Mount Longdon after the allegations against the Argentinians at Goose Green had become widely known within No. 3 Para. We must not forget that No. 3 Para suffered 23 dead and 35 wounded on Mount Longdon.

It is true but trite to say that things are done in war which could never be accepted in other contexts but war crimes go beyond the normal practices or inevitable cruelties of war. There is a sharp distinction between the killing of enemy troops in the heat of active battle (even if they are trying to surrender) and murder committed after battle on unarmed prisoners of war.

I suggest respectfully that the critical point in the debate is that it is not a matter of discretion for the Government whether to investigate those grave allegations. It is a matter of obligation. The Government have no choice. This country is party to the Geneva Conventions Nos. 1 and 3 of 1949. No. 1 is for the protection of the wounded and the sick in the field; No. 3 is the prisoners of war convention. By Article 13 of that convention, prisoners must be humanely treated. Grave breaches are defined by Article 130 as including: Wilful killing, torture or inhuman treatment". Most important, Article 129 provides in terms that: Each High Contracting Party"— and we are one— shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts". Therefore, it is a matter of obligation and not discretion.

Critics of the investigation have asserted that: evidence taken by the police in Argentina from members of the defeated Armed Services must on any basis be regarded as suspect and biased". I have no doubt that those investigating will consider highly critically evidence from that source when evaluating it; but it cannot be rejected out of hand.

However, it is the evidence of British soldiers which is likely to be crucial in that investigation. The passage of time—now coming on for 12 years—as well as the availability and willingness of witnesses to testify, are also relevant. However, what the "World in Action" programme signalled is that there is evidence in support of the allegations from within No. 3 Para itself.

Further, on that programme, General Sir Anthony Farrar-Hockley, a former colonel-commandant of the Parachute Regiment, said that the only way to carry such an investigation forward is to have, professional detectives go in to the matter". He continued to say: Wars are fought by soldiers and on the battlefield they engage in combat. That is one thing. They do not behave like savages and turn upon unarmed people which is the substance of this allegation and kill them". Now that the allegations have been made, they must surely be investigated in the interests of the men concerned. It is to be hoped that such allegations will be put to rest. If the evidence is sufficiently strong for a prosecution to go ahead according to our ordinary standards, then the honour and integrity of the British Army, as well as fidelity to our international obligations, require that we do not shrink from our duty.

I should like to add only one comment. Fairness also surely requires that the investigation be conducted expeditiously. When he replies to the debate, I hope the noble and learned Lord on the Woolsack will feel able to inform your Lordships' House for how long the investigation has been going on; the expenditure incurred on it; the resources devoted to it; and, above all, when it is anticipated that the report on the investigations will be completed and submitted to the Director of Public Prosecutions. Newspaper reports suggest that that stage is now imminent. There is a widespread feeling in the country that the matter has dragged on long enough and that the time for decision has now surely come.

3.31 p.m.

Lord Bramall

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for giving your Lordships' House the opportunity to debate such an important matter. I believe that most noble Lords would agree that the British Army has an enviable reputation as regards its discipline and conduct in peace and war. Wellington's Army in the Peninsula may have occasionally got off the leash; and over the years there have undoubtedly been other incidents in which the highest standards have temporarily lapsed. But, in general terms and certainly in recent times, the British soldier has demonstrated again and again that he not only acquits himself with honour but that he has a capacity for compassion for those whom he has defeated, particularly the wounded, who need succour and attention when the battle has passed on. Certainly, as one who served so long in the British Army and, indeed, was its professional head during the Falklands campaign, I am very jealous of that reputation for honour and decency and would not wish innuendo and allegations, however unreliable, to go so unchecked that that reputation might become tarnished by default.

However, those of us in your Lordships' House who have had significant first-hand experience of battle know only too well that the actual battlefield is an inherently brutal place, where absolute moral values are sometimes difficult to pinpoint and where men—fundamentally decent men—not infrequently find themselves impelled or obliged to do things about which they may afterwards feel uncomfortable or even ashamed—war, at best, being only the lesser of two or more evils.

In such circumstances, there are endless opportunities for misunderstanding and for doing things spontaneously which one would not have considered doing in the cold light of day. An enemy may give the impression that he is about to surrender, yet when you drop your guard that same enemy, or another, may open fire and kill comrades in arms. A close friend may be killed or seriously wounded right beside you, and the compulsion for revenge can be very strong. On the rugby field such an instant reflex might bring a penalty or even dismissal from the field, but on the battlefield the consequences of such a reaction would be infinitely more serious. The steadier the discipline and the greater the fire control, the less likely these things are to happen. That is why, because of our traditions and regimental system, even accusations of unreasonable conduct are seldom made. But certain individuals are, by nature, more trigger-happy and nervous under pressure than others; and fighting at close quarters in a war is not an exact science or a cool and calculated business. Those who have not experienced it can have no idea of the pressures involved.

However, I should like to make it clear that what I have said applies only to the actual battlefield—and to the close combat phase. That is why, in the eyes of experienced people, there has always been a clear distinction between actions which may be attributed to an excess of aggression, or even an involuntary lapse of self-control in the heat of battle, when the adrenalin is running and the blood is up, and war crimes, whether they involve murder, torture or some other form of grievous abuse, the difference being that the latter offence is a calculated act, carried out when the enemy have not only offered their surrender but have been properly accepted (as they should be whenever possible) into the protection of the victor or occupier, who would be in complete control of the situation and of those in his care and thus able to provide all the safeguards demanded by the Geneva Convention.

Against that background, I believe that there are points related to the police investigation which merit the attention of your Lordships' House. As noble Lords will realise, the investigation relating to the very serious charge of murder—that is, in the context of the campaign, a war crime—was undertaken only after a lapse of 10 years because certain allegations had been made in a rather lurid and sensational book by a retired and possibly disaffected member of the 3rd Parachute Battalion.

However, if one goes back to the source of the allegation (on pages 189 and 190 of the book Excursion to Hell) two vital factors stick out a mile. The first is that the allegations are completely hearsay. It is not an eye-witness account. In fact, the author—who is not averse to embellishing with gory details—neither claims to have seen, nor at the time heard, anything which could be remotely described as a war crime. It was only two to three months later, when back in Aldershot while waiting in a pay office, that he claims he met an anonymous soldier, himself badly wounded and about to be discharged, who told him that yet another unnamed soldier had in the very middle of the battle pushed Argentine soldiers over a ridge at the back of his position and opened fire on them. Talk about, "I knew a man who knew a girl who danced with the Prince of Wales": I should have thought that any defence counsel would have a field day with such unreliable evidence.

The second point is that whatever happened—if it did happen—occurred at the very epicentre of the battle, as the noble Lord, Lord Campbell of Alloway, pointed out and as the book admits. This was not the streets of Belfast; it was a bitter close-quarter battle in a proper war, just like Ypres, Gallipoli, Cassino or Imphal. The parachutists were in foxholes on the objective. They had been under observed mortar and artillery fire for the preceding 24 hours and there was direct shooting and sniper fire all around them. Men had been killed at point-blank range. The platoon sergeant had to crawl on his stomach because of the crossfire to get into the foxhole to issue a few breathless orders. The Argentine soldiers had got themselves into the same foxhole as a result of an abortive counter-attack in which other Argentine soldiers had been killed. In the book's hearsay account, there was no white flag, no formal surrender and no formal acceptance of that surrender; the whole area was in a state of flux in which at any moment any of the participants might have been killed.

No doubt Ministers, or for that matter Law Officers, with little or no knowledge of the face of battle might have hoped that they themselves would have behaved differently and offered any Argentines around tea and sympathy. We might all have hoped that. But, sadly, such paragons of virtue might have felt a bit out of place at the height of the Mount Longdon battle—a desperate place if I have ever seen one—in which, as we have heard, 23 paratroopers had already been killed and about another 40 wounded.

In any case, that is not the scenario or the conditions in which accusations of war crimes and murder can be anything but a cruel joke. Even the investigating officers must have been out of their depth in trying to picture what was happening at the time. That makes it all the more extraordinary that in the whole investigation, despite rushing off to elicit some response from the Argentines, no one has thought it necessary to interview the commanding officer.

I would submit that, although I am as anxious as anyone to preserve the good name and honour of the British Army, the general unreliability of the evidence; the scenario at the epicentre of a brutal battle, with the pressures of combat all around; and the time lapse before any accusations were first made, let alone investigated, all add up to the fact that an investigation of this weight should never have been undertaken, and if it lies in the power of the Attorney-General to do so, he should stop it now. He should certainly not allow it to result in a prosecution which, when all the facts and background are exposed, I am confident would fail. But not before it had done great harm to the reputation and morale of the British armed forces who, in general terms, and as far as the conditions allowed, conducted the Falklands campaign with decency and compassion, as well, of course, with conspicuous and brilliant success, for which the whole country has the greatest cause to be grateful.