HL Deb 08 March 2001 vol 623 cc346-87

(" . This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.").

The noble Lord said: My Lords, the purpose of the amendment, quite simply, is to enable the Government to proceed in accordance with Article 124 of the Rome Statute, which is entitled, "Transitional provision". It allows a state, on becoming a party to the statute, to declare that for a period of seven years after the entry into force of the statute, it does not accept the jurisdiction of the court with respect to the category crimes that are referred to in Article 8. That purpose is at the forward edge of the amendment. That means that the amendment would not conflict with the Rome Statute. The Government have repeatedly made it clear that they are anxious to preserve in the Bill the Rome Statute's wording almost to the letter.

I want to discuss for a few moments the various wider concerns and anxieties that motivated me to move the amendment. I make it clear at the start that no Member on this side suggests that war criminals should be shielded in any way or not brought to justice for the hideous crimes that they perpetrated. I also recognise, as Ministers made clear during the Bill's Committee stage, that the jurisdiction of the ICC comes into play only if British courts—service courts or civil courts—are unwilling to investigate a particular case. I also recognize—I take a phrase from a letter that the noble Baroness kindly sent me about these matters—that the Government's aim is to achieve a delicate balance between protecting service personnel and making sure that the ICC has teeth. We must bear all of those considerations in mind.

Although we have long accepted the Geneva Convention and its protocols, we are seeking to introduce into our own statute law the long list of war crimes in Article 8. That is a major change to the legal landscape. I noticed that 10 Downing Street made a comment of a dismissive kind—it said that nothing had changed and that we had long accepted the Geneva Convention. I am afraid that that shows that No. 10 does not understand the situation and is misinformed: we are dealing with something new in this context. When the change goes ahead, we shall be supporting a higher jurisdiction and placing on our statute book the long list of war crimes.

Legitimate anxieties have been aired recently in newspapers; by members of the Armed Forces. Yesterday's Guardian quoted various defence personnel, one of whom—a senior defence source—said: Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals". He added that Ministers were "very aware" of such a prospect. The article stated that that defence source was concerned in particular about, conflicts and operations. short of a full-scale war, even—paradoxically—where British forces were engaged in support of the UN". Another senior defence source, who was further identified in another newspaper as a naval defence source, said, future rules of engagement could…prevent a British warship from attacking a hostile vessel until it was too late". Attention was drawn in particular to several provisions in Article 8. The Guardian referred to paragraph 2(b)(iv), which appears in Schedule 8 to the Bill. That paragraph refers to: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated". One can surely understand the concerns that lie behind that provision. I am sure that the Minister accepts that such subjective phrases would have to be given clarity and established in the heat of urgent action or battle. How can one decide what will be "excessive" damage when an operation is about to be launched or is under way? Surely such provisions place front-line personnel and their superiors—whose position we shall come to later—in considerable difficulties.

That paragraph is not the only one that appears to use highly subjective phrases. We could live with such provisions when they were part of the Geneva Convention and of international law in the broader sense. Now that they are being introduced into our own statute law it is necessary to define somewhat more clearly, if we can, exactly what is meant by, for example, "military objectives". Paragraph 2(b)(xiii) of Schedule 8 refers to: Destroying or seizing the enemy's property unless such destruct ion or seizure be imperatively demanded by the necessities of war". What is meant by that? Just after the Second World War, a good deal of enemy property was being seized after the end of hostilities. If the Bill had been in place then, would such seizure have been a war crime? Our European Union partners obviously have had the same doubts about those matters. The Republic of France has placed very clearly in the ratification document a statement, a declaration, under Article 124 that, the French Republic declares that it does not accept the jurisdiction of the court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory". It is, of course, permitted to do that for seven years or for a shorter time if it so decides under the statute. Is that not an example which we should ponder very carefully before dismissing it? Is it not an example that we should copy?

Lord Archer of Sandwell

My Lords, I am grateful to the noble Lord for giving way. I am sure that he would not want to mislead the House. He said that our European partners were having misgivings.

Lord Howell of Guildford

My Lords, I said "partner".

Lord Archer of Sandwell

My Lords, I thought the noble Lord said "partners". As long as it is clear that it is only France which has found it necessary to limit its acceptance of the jurisdiction in that way and none of our other European partners has found it necessary to do so.

Lord Howell of Guildford

My Lords, I am afraid that the noble and learned Lord did mishear me. I said "European partner"—France. I hope that I was giving it the right epithet. France has indeed taken that stance. Those matters are very clearly set out in the ratification status document which I am sure that noble Lords have had time to study together with. in the French case, a number of other declarations or interpretations about items under the war crimes list, such as those concerning military advantage or the definition of what is and is not a military objective, which is obviously a highly controversial and very difficult matter to decide.

This amendment has a certain air of defeatism about it because it implies that it may not be possible to alter any of this; that it is all set in stone, despite the French readiness to make declarations; and that, therefore, the best thing would be to stand aside from that whole categorisation of war crimes until a lot more thinking has been done and until more opportunities have been obtained to understand the full implications.

If, nevertheless, the Government do not think we should adopt the same route as the French, a number of further questions arise. For example, in the heat of battle, it might lead to some dithering while people decide whether an act might lead to something which might lead to possible charges of war crimes; or that something had been done not unintentionally but intentionally which led to the killing of civilians, or whatever the unpleasant outcome might be.

In the New Zealand Parliament, it was asked whether the government were prepared to give indemnities to armed forces personnel who found themselves in those agonising situations and found they had committed war crimes. It was also asked in that parliament, and it is worth asking today, how one defines "excessive damage". Is there to be any attempt in declarations at the time of ratification to define "excessive damage"?

Earlier I read out a report from the Guardian. It is a newspaper report but it was in quotations from defence sources. That report said that Ministers were aware of all that. Will the Minister explain to what extent she is aware of those concerns and how she feels they should be responded to?

The Canadian nation took this through their parliament. Canadians are very keen on this measure. They see all its virtues, many of which are very clear. Nevertheless, they recognised that there was a new situation in which new crimes now existed on their own statute book and, therefore, that it was right that exceptional steps should be taken to publicise to the nation at large, to its citizens and above all to its armed forces and public servants, the nature of the possible breaches of state obligations and the nature of the new ICC legislation and to ensure that citizens were properly informed by state agencies. What is to be done about that?

Clearly, there are complex—and very complex, as my noble friend Lord Campbell of Alloway remarked on an earlier amendment—issues here. The law is complicated and will become more complicated. Yet, it has to be applied often in very heated, rushed, urgent and even critical situations. So the need for publicity is extremely important and this is the appropriate stage in our debates on the amendments to raise it. With those comments as to why we are tabling the amendment, I beg to move.

5.45 p.m.

Lord Lester of Herne Hill

My Lords, in 1958, a year after the end of the not very glorious military career of Gunner Lester AP and Second-Lieutenant Lester, Royal Artillery, Sir Hersch Lauterpacht, later the British judge on the International Court of Justice, revised the Manual of Military Law that national service and professional soldiers and officers were bound by in a very important way. As far as I am aware—and my colleague, Professor Sir Ian Brownlie, QC, who is a real expert in this area believes this to be the case—the Manual of Military Law has been updated from time to time.

In Chapter 14 of that manual, under, "Means of securing legitimate warfare", Sir Hersch Lauterpacht set out in detail the Hague Rules on state responsibility and the Geneva Conventions dealing with individual criminal responsibility for war crimes and, in detail, explained the concepts, the punishments, individual responsibility, the way in which the defence of superior orders was no defence and the responsibility of commanders for war crimes committed by subordinates. All of that was in 1958.

There is nothing new in the ICC statute or in this Bill in relation to the main ingredients of these international legal principles. All that is new is that an international criminal court is being set up to have primary jurisdiction, working in partnership with national courts. Indeed, even that was foreseen by Sir Hersch Lauterpacht as long ago as 1944 in an article I read in the British Yearbook of International Law. That is my first point.

Secondly, I should like to refer to the extraordinary article, to which the noble Lord, Lord Howell of Guildford, also referred, which appeared in the Guardian, on its front page, no less, ascribing to top military commanders various views which were so inaccurate, incomplete and misleading that I cannot believe that any of them could really have been so ignorant.

There are often criticisms of members of the legal profession and many of those criticisms are justified. When my profession speaks on its own behalf, it often speaks in the language of self-interest masquerading as public interest. All professions and jobs tend to do that. When I read those views in the Guardian, I cannot help thinking that the honourable profession of soldier, sailor and airman or woman may be subject to the same problem; namely, confusing self-interest and public interest.

I refer briefly to the article which has already been commented upon. It suggested that the Bill could prevent British peacekeepers from carrying out their tasks effectively. I do not understand that at all. As I say, the law we are dealing with is old and well-established international law, conventional and customary.

It is said that the rules are made in places other than our capital city—a reference to Brussels, above all. I do not know whether those top brass spokespersons are thinking of rules about sex discrimination, which they do not like, as applied to the Armed Forces. Those are made in Brussels. But none of these rules can be laid at the door of the European Union or Brussels at all.

The article states: Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals". Again, that is a complete farrago of the accurate position. Then it is said that the safeguards are not sufficient. The article continues: We have got to [ensure] there is a framework that does not prevent us from doing what we set out to do". The framework is as old as the Geneva Conventions and the Hague rules. Then it states: when we see bits of European legislation [the military] should not be forced to follow it slavishly". I repeat, this is not even European legislation.

The final point is that the noble Lord is right to say that it is open to the United Kingdom to follow the bad example of France. Of the 29 countries that have so far ratified the statute, I believe that only the French Republic has taken advantage of Article 124. The seven other member states of the European Union have not taken that approach. There is no doubt that during the negotiations there was heavy pressure on the negotiating team from the French ministry to take advantage of that option. But I find it difficult to understand why on earth it would be in the interests of the Armed Forces of the United Kingdom to reject, for seven years, the beneficial provisions of the International Criminal Court statute on the basis of objections that are really objections to the restraints on warfare being committed in ways that engage criminal responsibility.

Last but not least, many of the war crimes defined in Schedule 8 and Article 8 of the statute are already part of our domestic criminal law, so there is nothing new in that. For those reasons we on these Benches are firmly opposed to this amendment.

Lord Goldsmith

My Lords, I too oppose this amendment, while entirely recognising the legitimate concerns that have been expressed. First, what does it amount to? It amounts to a proposal that for a period of seven years United Kingdom nationals should not be subject to the jurisdiction of an international court that otherwise we should support and promote with respect to one category of grave crimes against the peoples of this world with which the statute is concerned. Why should there be that escape from accountability for that category of act? Why should we allow war crimes to go unpunished by the International Criminal Court? These are not new laws.

As was made clear by the noble and learned Lord the Attorney-General, the provisions of Article 8 relating to war crimes are to be found in existing international law. That is clear if one looks at Article 8, which is set out at page 63 of the statute: (a) Grave breaches of the Geneva Conventions of 12 August 1949"— and they are enumerated— (b) Other serious violations of the laws and customs applicable in international armed conflict"— that is existing law. Then particular instances of that are enumerated.

I believe that the Geneva Conventions were conventions that this country took a proud part in drafting, promoting and adopting. For many years we have accepted them. It is in our interest that others should obey them too; if our soldiers are involved in conflicts abroad, it is in our interests that they should be protected and that we should know that they are protected from war crimes, as our people will be so protected.

I ask, as I have previously during the course of this Bill, what we would say if another country, whose reputation for human rights or whose reputation for respect for individuals is not as great as we believe ours to be, were to adopt a similar course? Suppose they were to say, "We are not prepared to accept the jurisdiction of this court in relation to our conduct".

The fact that modern weapons are capable of striking deep into territory and causing untold damage is not a justification for licensed barbarism; it is more a reason why we should look for a clear standard of international law to control international war.

What are the defences and the safeguards against the concerns to which the noble Lord refers? I believe that there are three. First, the definitions in Article 8 are clear. With respect, I do not accept that they are subjective; they are objective. I take the example quoted by the noble Lord and stated in the Guardian newspaper of sub-paragraph (iv) of Article 8(2)(b). It contains four critical elements that must be considered. Item one relates to, Intentionally launching an attack"; item two is "in the knowledge"; item three is, that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would he clearly excessive"; and item four is that it must be clearly excessive, in relation to the concrete and direct overall military advantage anticipated". I would refer, not to my view, but to the view of someone who knows far better than I do how such matters operate in international law and in military matters. I had the benefit of hearing from General Rogers who is a former director of the Army Legal Services, who gave a briefing some time ago on this matter. In relation to this particular concern about military operation staff he said: However, the qualifying words 'intentionally', 'in the knowledge', 'clearly' and 'overall' should ensure that only the most obvious eases would come before a court and that military commanders doing their best in difficult circumstances to comply with the law of armed conflict will have nothing to fear". That is the view of someone who understands how military operations work and has the interests—as I am sure he has—of servicemen at heart. That is a view that I would accept.

Lord Tebbit

My Lords, I am grateful to the noble Lord for giving way. Is he of the view that the bombing campaigns by the Royal Air Force in the Second World War would be clear of any possible action or would they be caught by this type of legislation?

Lord Goldsmith

My Lords, it is not necessary to consider what the position would be in relation to events that took place before this statute comes into effect. As has been made clear, the statute is not retrospective. I would also say that it is not to be gainsaid that the statement in Article 8—I do not understand that the noble Lord, Lord Howell of Guildford, disputes this—represents existing international law. He rightly says that there will be a new procedure for punishing it. I say that if this is law, it should not go unchecked and unpunished.

Lord Tebbit

My Lords, of course I understand that this is not retrospective, but I am trying to persuade the noble Lord to say what kind of crimes would be caught by this legislation. If he does not like the example of the Second World War bombing campaigns, would the attacks on civilian targets in Serbia, which were much more recent and could possibly happen again at any time, be caught by this statute?

Lord Goldsmith

My Lords, as I recall, at Second Reading the Attorney-General dealt clearly with that point. I entirely accept his expert view. He said that the conduct in which this country was involved in relation to those problems, of which one is rightly proud, did not in any way infringe existing international law. This statute will not change that.

I turn to the second safeguard in relation to the matters which have been raised. No procedure can take place under the statute if this country is prepared itself to investigate and if necessary to act in relation to conduct by United Kingdom nationals. The principle of complementarity, as referred to in Committee, means that unless we are unable or unwilling to deal with conduct by a UK national, it will not be for the International Criminal Court to deal with it but for our own courts.

The third safeguard is most important. No investigation will take place unless an independent prosecutor decides that there are reasonable grounds for doing so (Article 15); no investigation will take place unless that view is also shared by an independent pre-trial chamber (Article 15); no warrant will be issued unless an independent pre-trial chamber is of the view that there are reasonable grounds (Article 58); and, ultimately, there will be no conviction unless an independent court is of that view.

The noble Lord, Lord Lester, is right in saying that the only country which has pursued this route is France. Our European Union partners otherwise have not, although they, too, engage in peacekeeping activities abroad. The French example—I say nothing bad about the French and have the honour to be a member of the Paris Bar—is not one that we should follow. I do not believe that the Government want to follow it and I hope that the noble Lord will not invite us to follow it by pressing his amendment.

6 p.m.

Lord Lamont of Lerwick

My Lords, I want briefly to support my noble friend on the Front Bench. I appreciate the good intentions behind the Bill. I do not in any way decry them but, as I indicated on other occasions, I have a number of anxieties about the Bill.

There was something missing in the contributions of the two noble Lords who spoke against my noble friend's amendment; there was not a single mention of the United States. We are told that all our European partners, other than France, will ratify the statute and pass legislation immediately. But of course the other European countries are not really greatly engaged in peacekeeping.

Surely, the important point is that the United States, which is involved in many more significant peacekeeping operations, has made it clear that it will not participate in the court. I do not know of a single Senator in the United States who has urged the ratification of the legislation. Even President Clinton, when he ratified the statute in the dying days of his presidency, said that the statute required amendment. He did not recommend to the Senate of the United States that it should ratify the legislation in its present form.

I make that point because noble Lords who have spoken hitherto sought to imply that the fears which my noble friend on the Front Bench expressed about the security of our Armed Forces are all unreal. But they are precisely the grounds on which there is very strong opposition to the court in the United States. We are sitting here solemnly discussing the issue and want to ratify and establish a court of which Iran is a supporter but not the United States. Is not that an utterly unreal situation?

Lord Archer of Sandwell

My Lords, I am grateful to the noble Lord for giving way. I wonder whether I understood him correctly. It is true that France, to the extent it has entered the declaration, and the United States are almost alone among more than 100 countries which believe that the court is an appropriate court to express the international view on these matters. However, was the noble Lord saying that our other European partners are not active in peacekeeping? Was he referring to Italy, Luxembourg, Belgium, Spain, Germany, Austria and Finland? Do they not participate in peacekeeping activities?

Lord Lamont of Lerwick

My Lords, to some extent they have all participated. The Italians provided support in the operations against Serbia. However, it is plainly obvious that the United States carries a vastly greater burden and does far more for international peacekeeping than do all those countries put together. I do not mean to be insulting to Luxembourg, but I do not believe that its contribution to peacekeeping is on quite the scale of that of the United States. Of course, it is because of the United States' size and military capability, but the United States is entitled to be worried about what might happen to its troops when it fulfils these international duties.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble Lord for giving way. As he referred to me as one of those who spoke against the amendment and said that I omitted the United States, I wonder whether he is aware that the problem with the United States goes back to 1945. It is the problem of persuading a very conservative Senate to ratify such international instruments. That problem delayed the International Covenant on Civil and Political Rights; it meant that the genocide convention was not part of United States law for far longer than in any other democracy; it applied also to the torture convention and to a variety of humanitarian and international human rights treaties.

Is the noble Lord then telling us that the United Kingdom's policy should be to be wagged by the United States conservative Senate in this respect?

Lord Lamont of Lerwick

My Lords, the noble Lord referred to the United States "conservative" Senate but he knows as well as I do that it is evenly balanced. I do not know of a Democratic Senator who has voiced public support for the court in the form that it is today. Opposition to the court is extremely strong in the United States. The President has said that he is against it; Mr Rumsfeld has said that he is against it; the Secretary of State has said that he is against it; and numerous Senators have said that they are against it. They are against it because of the risk to American troops in peacekeeping operations.

The noble Lord, Lord Lester, in his, as always, elegant and learned speech, said, "Ah, but there is nothing new in all this. The law is the law is the law. This has been with us for donkeys' years. We had the Geneva Convention and so on". But what is new is the establishment of a permanent court. What is worrying the United States is that allegations—not necessarily justified—could be made against its personnel in peacekeeping operations.

My noble friend Lord Tebbit gave some examples. These things are always arguable. I had the gravest doubt about the bombing of the Novi Sad Bridge during the action against Serbia. I could not see the military justification. All right, one can say that troops can use bridges but it was far from the site of the military action.

Perhaps I may give another example—not one which specifically involves the United States. I can easily imagine how a charge could be made against Britain and the United States in relation to sanctions against Iraq. I can easily imagine how that could be constructed into a charge of genocide. We are told that approximately half a million children are dying each year. I am not saying for one moment that I agree with that, but I can imagine how such charges could be brought.

Such fear lies behind the perfectly reasonable fears of the United States. France, in a typically cunning French way, has indicated its reservations. The United States has done so in a much more open way. I disagree with those noble Lords who say that those fears are baseless. If they were baseless, I do not believe that the United States would have taken the stance that it has—unequivocally and with a great deal of support in the United States.

Lord Goldsmith

My Lords, before the noble Lord sits down, perhaps he would be kind enough to deal with two matters. First, does he accept that Article 8 represents existing international law in relation to war crimes? Secondly, is it his view that that international law should be upheld?

Lord Lamont of Lerwick

My Lords, I believe that Article 8 does express existing law. However, as I said in Committee, it is my understanding that several of the definitions have been altered. I am not in any way complaining about that, but I believe that what the noble Lord says is broadly right. What is completely new is the establishment of a permanent international court.

I am not sure about the noble Lord's second question—

Lord Goldsmith

My Lords, my question was whether the noble Lord agrees that that international law should be upheld.

Lord Lamont of Lerwick

My Lords, of course I believe that international law should be upheld. However, for reasons upon which I shall enlarge later, I have the greatest reservations about the establishment of this court.

Baroness Williams of Crosby

My Lords, I apologise for my inability to take part earlier in Committee. I should like to address the attitude of the United States. The United States is a country with the greatest possible respect for law. I do not, therefore, believe that to water down the International Criminal Court is the appropriate way to deal with the current objection to it, in particular by the US Senate. It is perhaps worth mentioning that President Clinton signed the treaty as a preliminary to ratification by the Senate, which may not take place.

A substantial change in American opinion is under way, if not yet at the level of the Senate certainly in some other quarters. Noble Lords may have read an extremely important article last month in the National Journal, which is perhaps the most authoritative publication on the proceedings of Congress and activities in Washington generally. That long article dealt with how attitudes in the Pentagon and elsewhere had changed as a result of the involvement of the United States in certain peace-keeping activities, notably in Bosnia and Kosovo. Addressing the experiences in KFOR and, before that, Bosnia, the article pointed out that senior military leaders increasingly pondered how military tactics had to change, and be substantially restrained, as a result of taking part in peace-keeping activities. Many of us in this House, including myself, saw this process take place some 20 years ago in Northern Ireland when our own military personnel began to learn how not to be warriors, as it were, but essentially powerful policemen in dealing with a civilian clash—if you like, a kind of religious or ethnic conflict—between one group and another. As the article makes plain, that has been taken on board by the US military in respect of the limits within which it is free to act.

As to setting out international law once again in terms of the International Criminal Court, as the noble Lord, Lord Goldsmith, pointed out, it is quite clear that one must reassert the position in the face of an extremely troubling evolution of certain civil and international conflicts in other parts of the world. It is troubling that today the ratio of military to civilian deaths (1:10) is almost the reverse of the position at the beginning of the past century. The deliberate targeting of civilians, in particular children, pregnant women and some of the most vulnerable people in society, is a terrifying characteristic of some recent major conflicts, particularly internal ones. The war in the Democratic Republic of Congo which begins to take in more of its African neighbours is one example, but there are many other equally troubling ones.

Many of us believe it to be of the greatest possible urgency that in relation to those who are engaged in peace-keeping activities an attempt is made to establish an international rule of law that applies to military as well as civilian actions. I believe that in the United States there is beginning to be a substantial shift of opinion in consequence of that country's own involvement in peace-keeping activities. It would be a disservice to those in the US minded towards international action if we watered this down and failed to provide ourselves with an example. Far from assisting those in favour of ratification of the proceedings of the International Criminal Court, we would discourage them in an extremely serious way.

6.15 p.m.

Lord Monson

My Lords, as a layman naturally I hesitate to tangle with the noble Lord, Lord Goldsmith, but I cannot help wondering whether his confidence that the highly subjective, and in some respects ambiguous, wording of paragraph 2(b)(iv) of Article 8 cannot be used against our servicemen is perhaps excessive. Can we be certain that judges and prosecutors will automatically take the commonsense view that he anticipates? When our forces helped to liberate Kuwait they might have been responsible for extremely serious environmental damage. In the event, happily they were not so responsible, even if the Iraqis were, but they could not have known that in advance. Take at random the much smaller provision in paragraph 2(b)(xviii) of Article 8 which outlaws the use of asphyxiating gases. I apprehend that that might outlaw the use of CS gas. I am told that that is extremely unpleasant to those on the receiving end, particularly if they are asthmatic or have other respiratory problems, but in practice its use may be the lesser of two evils at the time. I have great pleasure in supporting the noble Lord, Lord Howell, in this matter.

Lord Tebbit

My Lords, I had not intended to engage in this debate. I came to listen and hoped to be educated. I believe that I have been far from educated by the speech of the noble Baroness, Lady Williams. No doubt inadvertently, I believe that she obscured the difference between a peace-keeping operation and total war. They are very different operations. In the former restraint is required, but in the latter restraint is of a rather different order. The use of nuclear missiles is, for example, an obvious possibility in total war. There is not much restraint in that. Even in the case of peace-keeping, I believe that there is a marked lack of understanding.

Through the medium of Questions for Written Answer, recently I tried to explore the rules of engagement given to our forces operating in Northern Ireland and Sierra Leone. Clearly, in Sierra Leone the rules of engagement permitted our soldiers to kill women and children. That is not permitted in Northern Ireland. But I am told that the rules of engagement are far, far too secret for us to be allowed to see them, or to be told in what way they differ as between those two theatres of war. Is it already contrary to international law as it applies to war to kill women and children in Sierra Leone? I do not know. But the noble Baroness does not appear to know the difference between peace-keeping and war.

Lord Lester of Herne Hill

My Lords, before the noble Lord sits down, perhaps he can explain his position. A week or two ago the International War Crimes Tribunal, in a ruling strongly welcomed by Madeleine Albright and the New York Times, decided that an act of rape committed against a small number-of Bosnian women was a very severe crime against humanity that needed to be punished. Is the noble Lord's position that such a crime, whether or not it is committed in armed conflict, should not be dealt with by an international criminal court? I do not understand the noble Lord's position. That was the judgment of Judge Florence Kumba of Zambia in a case involving three Bosnian Serbs at the International War Crimes Tribunal. That decision was widely praised in last Sunday's edition of the New York Times. I should be very grateful if the noble Lord could explain his position.

Lord Tebbit

My Lords, my position is to try to understand the effect of this legislation. I slightly resent the suggestion that somehow I am against the punishment of soldiers who are guilty of such indiscipline as to rape civilians, or even military personnel, in time of war. One does not have to go into the future, or the recent past even, to look at that. But within the British armed services such acts have long been a matter subject to military discipline and to harsh punishment.

Lord Avebury

My Lords, I strongly resent the imputation levelled by the noble Lord, Lord Tebbit, against our Armed Forces in Sierra Leone. To say such a thing in this House, when everyone admires enormously the way in which our Armed Forces have performed in Sierra Leone—the way in which they have restored stability, at least to a certain area of the country, and have earned the plaudits of everyone who lives in Freetown and well beyond—is incomprehensible and absolutely outrageous. I hope that the noble Lord will, on reflection, think better of that remark because, as far as I am aware, there has never been any accusation against a member of our Armed Forces in Sierra Leone of wilfully killing women and children.

I would be horrified if the noble Baroness, Lady Scotland, stood up and told the House that was permissible within the rules of engagement. I do not believe such a rule exists. The noble Lord has somehow invented it in order to make a spurious argument in favour of his noble friend's amendment, but it is not the kind of argument that will appeal to your Lordships.

Lord Tebbit

My Lords, I am grateful to the noble Lord for giving way. It is an indisputable fact that, during the rescue operation of British servicemen who had been taken hostage, armed women and children were encountered and were shot dead by the British forces. That happened.

Lord Avebury

My Lords, I hope that the noble Lord is not changing his tack to suggest that our Armed Forces should not be able to fire back when under attack from an enemy. Everyone knows that women and children are employed in the irregular armed forces operating in Sierra Leone. But in the way that the noble Lord was putting the matter, they were civilians. If he cares to withdraw the accusation that our Armed Forces would fire on civilian women and children, I would be very happy.

Lord Tebbit

My Lords, not at all. There is no implication that they were civilians. What is a civilian in the context of the war that has been going on in Sierra Leone? There are many armed civilians operating as guerrilla forces. We also know that on many occasions our armed services in Northern Ireland have met armed civilians. They have not been authorised to shoot at them as though it were a war.

Lord Avebury

My Lords, surely the noble Lord is not suggesting that people carrying weapons and shooting at our troops are to be treated as civilians? That is an absolutely absurd argument. He is getting himself into an even more difficult corner than he was in at the beginning.

Before I sit down, I must refer to the absurd argument about genocide in Iraq. To say that we have been guilty of genocide because Saddam Hussein has deliberately prevented his people having the medicines and the food permissible under the oil for food programme is equally a travesty of the truth. Of course such a charge would not be levelled against the United Kingdom or members of the Armed Forces. However, if one were, the amendment has nothing to say about it, because Article 124 allows us to withdraw from the treaty for seven years in respect only of war crimes. So we would still be liable in the impossible circumstances that the noble Lord postulates that a charge of genocide was levelled against this country for the operations in Iraq.

Lord Shore of Stepney

My Lords, perhaps I may go back to before Sierra Leone appeared before us and to the distinction that the noble Lord, Lord Tebbit, made between serious war and relatively lightly engaged peacemaking operations. Of course there is a huge difference.

But there is also a third category—all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.

There is another category of war. It is not quite total war, but it is war with which we are all familiar. I refer to what happened in Korea, in the Gulf, in Iraq, and in many other areas. We have had to fight to win. If I was to take seriously all these new listed war crimes in Article 8.2(b) onwards—all of them, not just some of them—I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.

The minor suggestion made by the Opposition Front Bench is just an effort to do their best with what apparently is an inviolable convention and a Bill that must in no way be tampered with and amended, even where the most obvious sense and intelligence, based upon our own experience, tells us that some of these clauses are ridiculous. Unless one lives in a world inhabited only by international lawyers, one will recognise that without any difficulty. I am sorry to speak with vehemence on this matter.

Lord Goodhart

My Lords, I am grateful to the noble Lord for giving way. Does the noble Lord therefore believe that there is no such thing as a war crime? Does he, for instance, not recognise that we refrained from using poisoned gas during the Second World War? Does he not recognise that we refrained from using nuclear weapons in Korea when we could have done so, whatever the consequences might have been, to stop the Chinese invading?

Lord Shore of Stepney

My Lords, I look at paragraph 2(b) (xviii) and (xix) of Article 8. I will not have our people dragged before some court because we have used depleted uranium, which many people believe to be poisonous. Have we no idea that we are engaged frequently in conflicts in which, obviously along with the Americans and to some extent the French, we are more engaged than any other country? Why are we more engaged? The reason is because we all happen to be permanent members of the Security Council. We are most active in the business of bringing peace and order to this troubled world. We are putting ourselves unnecessarily in the dock by accepting a number of these foolishly agreed clauses in the convention.

I have no worry with the general categories dealing with crimes against humanity, against genocide; indeed, the first half of Article 8.2(a). I have no trouble with that at all because I share the same purpose. But why we should put ourselves in the dock in the foolish belief that we would win an action brought against us in a British court, while at the same time we know pretty well that we would lose the battle in the cause of public opinion in the world outside, I simply do not know.

Baroness Park of Monmouth

My Lords, I hesitate to follow that magnificent statement, but I want some clarification. We are the only country, so far as I know, which has a serious internal problem. I refer to Northern Ireland. Paragraph 2(e) of Article 8 applies, to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups". If one goes back to paragraph 2(c)(ii), one sees that some of the crimes that could be adduced against us include, committing outrages upon personal dignity, in particular humiliating, degrading treatment", and, in heading (iv), the, passing of sentences…without previous judgement pronounced by a regularly constituted court". I suggest that those are just the kind of accusations that the IRA would bring against us as claims of inhumanity and crimes against the statute. I just wonder whether we can take any precautions to prevent that happening. At the time that this was discussed, Mr Vaz said—it was not in relation to Northern Ireland but generally—that, if serious allegations were made in good faith against British citizens, we are confident that we could demonstrate that there is a remedy in British justice". I would certainly endorse that, but I doubt whether the IRA would. It therefore seems that there is a strong argument for the retrospective clause proposed by my noble friend on the Front Bench because this is precisely the kind of thing that led to Bloody Sunday and to the inquiry, which has already cost goodness knows how many millions of pounds and is still going on. Accusations against the Diplock courts and accusations of degrading treatment are just the kind of matters that would be brought forward. I should like some reassurance from the Minister that this issue has been considered. It is a unique situation. The other European countries mentioned do not have that problem. We do.

6.30 p.m.

Baroness Scotland of Asthal

My Lords, I should like to restore a little calm and perhaps temperance to the way in which we look at these issues. I say straight away that this country has a very noble and proud past in the way in which we stood up for the human rights not only of our own citizens but of the citizens of the world too. I should like to express confidence that the way in which our Armed Forces have been trained is such as to enable them to respond appropriately and proportionately when they are dealing with situations of war. If we look at the way in which we have behaved in the past, that has been clearly demonstrated.

I should like also to lay to rest the concerns raised by the noble Lords, Lord Monson and Lord Shore, and the noble Baroness, Lady Park. The Rome Statute of the ICC is full of safeguards. The principal safeguard is—I cannot stress this point enough—that national judicial systems will have the first claim on any investigations that affect them. United Kingdom authorities will retain the right and responsibility to investigate offences committed here or where UK nationals stand accused of committing these crimes anywhere in the world. The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.

I turn to the comments of the noble Lord, Lord Howell. He started by saying that there has been a major change in the landscape. With the greatest respect, I disagree with him. We are not supporting a higher jurisdiction, as the noble Lord outlined. The ICC will not be a higher jurisdiction. It will be a complementary jurisdiction to our own. The definitions contained in the Bill and in the statute are already part of English law. They reflect international and domestic law, and the armed services are already aware of them and are trained accordingly.

It is important for us to remember that the definitions of war crimes are largely drawn from the Geneva Conventions of 1949, as was highlighted by the noble Lords, Lord Lester and Lord Goldsmith, and their additional protocols of 1977. The Geneva Conventions were incorporated into our domestic law by the Geneva Conventions Act 1957. That was done under a Conservative government—the Macmillan government. The additional protocols were incorporated into our domestic law under another Conservative government, in 1995, without waiting for the United States of America to ratify. The United States still has not ratified, although it signed in 1977.

Lord Lester of Herne Hill

My Lords, am I not right in thinking that it was also a Conservative government who ratified the United Nations Convention against Torture and then incorporated the standards in that convention into our domestic law?

Baroness Scotland of Asthal

My Lords, the noble Lord is correct; and it is something about which I am sure noble Lords opposite feel a degree of pride and satisfaction. It is something which we on this side of the House would openly and, I hope, generously applaud. It was right then; it is right now.

Perhaps I may say that the past hour has occasioned a little sadness. When the statute was debated in this House, there was unanimity. Virtually all Benches spoke with one voice. There was also unanimity in the other place in welcoming the statute and welcoming signature. So it is with a little disappointment that I notice the divisions between us now. But let us see whether we cannot clear some of those away.

The noble Lords, Lord Lester and Lord Goldsmith, were right when they referred to the basis on which paragraph 2(b)(iv) of Article 8 should be looked at. I shall not repeat all the comments that were made. However, I should like to assist the House with regard to the genesis of the breaches contained in paragraph 2 of Article 8 because, on a number of occasions, I have heard noble Lords—particularly the noble Lord. Lord Howell—mention them. The grave breaches of the Geneva Conventions appear in paragraph 2(a) of Article 8. The grave breaches of Additional Protocol I include the physical mutilation provision—paragraph 2(b)(x)—and making the civilian population the object of attack—paragraph 2(b)(i). There is also the launching of an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians or damage to civilian objects. That is a more stringent definition of the criminal offence which is now contained in paragraph 2(b)(iv).

Those provisions are all referred to in existing law—our law and not anyone else's law—which was brought into being by the Geneva Conventions (Amendment) Act 1995. So we need, my Lords, if I may respectfully say so, to take a steady look at where we are now. We are not seeking to do anything extraordinary. We are seeking to bring about helpful change. We are seeking to ensure that war criminals do not escape. I feel confident, notwithstanding the past hour, that all Members of the House can still join arms on that point.

This Government have never intended to take the seven-year opt-out on war crimes, which is provided under Article 124 of the Rome Statute. We see no need to do so. Indeed, there was a good deal of strenuous argument to stop Article 124 ever forming part of the Rome Statute. I am sure that the noble Lord, Lord Kingsland, will not mind me reminding him of what he said in this House on 20th July 1998 about our failure to stop that article becoming part of the statute. During the debate, which was held after the Rome Statute had been adopted, he said: There is, however, one immense drawback…The drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes".—[Official Report, 20/7/98; col. 626.] I see that the noble Lord, Lord Kingsland, is in his place. He opposed Article 124 at the time and I hope that now he will have no difficulty in agreeing with me. Indeed, I hope that he, along with his noble friend beside him, the noble Lord, Lord Howell, will say that it would be undesirable and quite wrong to pursue an opt-out under the article and that, in due course, the amendment can be withdrawn.

Lord Howell of Guildford

My Lords, I hope that I shall not sound cynical if I say that long experience has taught me that when a government put before the House an important and substantial Bill and then assert that it changes nothing and that nothing in the Bill is new, that is the time for legislators to be alert. Of course this Bill will produce a new landscape. Of course there is something new here, in the form of a higher, international jurisdiction. It may not be a primary jurisdiction—I did not say that it was; other noble Lords made those comments—but its jurisdiction will come into operation when the nation state (in this case, the United Kingdom) is unable or unwilling—that is more relevant, because we would not he unable to do so—to investigate, deal with, try or address accusations and charges of war crimes. It would come into play when this country is not prepared to investigate because we believe that public servants and military personnel have acted in their highest duty under the command of their superiors, in line with public policy and political strategy.

When that is the case, and when the ICC has considered whether that would be an admissible objection after the pre-trial procedure and an appeal, then the ICC will have the final word. Therefore, we have here a new situation in which a higher international jurisdiction may make judgments about crimes—founded in international law, which of course we want to uphold, despite the inevitably vague wording as regards our own judicial context—which have been put onto our statute book. To pretend that nothing is new here and that there are no new risks, that the matter can be rushed through smoothly and that the situation will be as it was, is not, I believe, to act fairly and squarely towards those who may be affected by this legislation. In the end, it will affect in particular those in the front line, those who will have to undertake the difficult tasks, tasks which necessarily are sometimes bloody and violent in order to uphold and preserve peace and do down tyrants.

Lord Avebury

My Lords, I hope that the noble Lord will forgive me for intervening. If the noble Lord does not like the wording, why did the Tories enact it in the 1995 Act?

Lord Howell of Guildford

My Lords, I believe that the noble Lord is referring to the war crimes legislation.

I hope that I have explained clearly that that legislation is not what is new here. What is new is that a higher, international jurisdiction is now placed in a position—not a primary position, because domestic courts are complementary to it—where it can have the final word if the United Kingdom and its authorities do not wish to investigate or to bring charges because they do not believe that any crime has been committed. The trouble lies in that, where we do not believe that a crime has been committed, other countries, in the international context, could raise a case saying that crimes had been committed. Unless we understand that basic point; namely, that two points of view must be considered here, and that what one nation may regard as an innocent pursuit of peace—

Baroness Scotland of Asthal

My Lords, perhaps I may make it plain, if I did not do so earlier, that it is our belief that if a British citizen were to be accused of such an offence, then we in Britain would wish to investigate the matter and we would do so. I am sure that whichever government of whatever complexion in Britain would do the same. The situation which the noble Lord has described should not occur. If it did occur, it would be in our hands.

6.45 p.m.

Lord Howell of Guildford

My Lords, I understand what the noble Baroness said. But the danger remains where, as a nation, we would feel that our public servants and military personnel had performed their duties well. The hypothetical case has been raised; namely, the bombing of civilians and bridges in Kosovo. Other parliaments have gone further into the past and have discussed the decision taken during the Second World War to take out and smash the ancient monastery of Monte Cassino. It was believed to contain munitions; instead it contained priceless books and frightened monks. That was a direct and intentional attack on a civilian objective. These circumstances describe situations where the host country—it could be New Zealand or Britain—could say that, "Nothing wrong was done. There is nothing to investigate and we are unwilling to do so".

Lord Archer of Sandwell

My Lords, I am a little puzzled by the noble Lord's remarks about Monte Cassino. Surely the point was that that was not an intentional attack upon a civilian objective? It was thought to be a military objective.

Lord Howell of Guildford

My Lords, the noble and learned Lord will recall that a considerable dispute broke out over whether it was a military objective. Even the concept of "intentionality"—if that is an English word—is one that can be debated. Other noble Lords have pointed out that it has two sides. Indeed, the history books still argue over whether the battle for Monte Cassino was intentional, whether it was known that it was a civilian target but that it needed to be taken out, or whether it was a military target. Indeed, that is why the French have put in a ratification status declaring that they want to be able to interpret the words "military objective". Whatever the noble Lord, Lord Goldsmith, has said, it is a highly subjective term. One person's military objective is another person's precious civilian site or institution. It is inevitable that there will be a difference of view.

I wish only to make the point that it cannot be right to say that there is nothing new here when clearly there is something new; namely, a new and higher jurisdiction. Many matters covered in the war crimes list, which forms part of the international law, have been accepted in the past, as pointed out by the noble Lord, Lord Avebury. However, when those matters are put into our statute law and are considered in the context of this higher jurisdiction, they raise questions. It is inevitable that they could put some of our Armed Forces into situations where questions could be asked. That is what worries them.

Lord Shore of Stepney

My Lords, I am grateful to the noble Lord for allowing me to intervene. On a point of clarification, when this matter came before the previous Parliament in 1995, were the war crimes listed in the detail of the Bill, as they are in sub-paragraphs (a) and (b)? Did any serious debate take place about particular methods of war and the actions there enumerated?

Lord Howell of Guildford

My Lords, I cannot answer the noble Lord's second point because I was not here.

As regards his first point, I imagine that the Geneva Convention and its protocols were in print and available for any noble Lord to read in the Library, in the knowledge that they were a part of international law. However, they did not then form a part of the statute law of this country, nor was there in place an international jurisdiction which had the last word in their interpretation and could bring forward allegations against individuals whom we might regard as perfectly sensible public servants in our Armed Forces. However, as soon they are named in a military investigation, their careers are ruined. I think that, sometimes, the handlers of the law do not understand that point. That is the fact of the matter. At the end of this debate, I still feel very strongly that we owe a consideration—a bargain—to our Armed Forces, in the light of the immensely difficult situations they now face. I recall the references made by the noble Baroness, Lady Williams, to low intensity warfare and dealing with the then Provisional IRA. I was the Minister in the Northern Ireland Office at the time and I recall the great difficulties in trying to evolve new procedures. These are extremely complex and many more new procedures will need to evolve. That is all the more reason—I repeat, all the more reason—why we should have in place clear laws and statutes so that our men and women serving in the front line can understand how they are to proceed. Furthermore, they must know, along with their commanding officers, what is right and what it is their duty to do. They should not get into the terrible tangle of wondering whether an order issued by their commanding officer is or is not liable to lead them into court.

Lord Goldsmith

My Lords, before the noble Lord announces what he intends to do, can he deal with one point; that is, whether or not it is his view—and, indeed, the view of the Front Bench opposite—that no one should be subject to the jurisdiction of the International Criminal Court for war crimes; that no person who is guilty of war crimes should be subject to this court? If we are saying that our nationals should not be, on what basis would the noble Lord say that anyone else should be? Perhaps he can answer that question.

Lord Howell of Guildford

My Lords, I am saying that the International Criminal Court should come into being—we support the principle of it—for crimes against humanity and genocide; we have no problems with that at all. However, for war crimes, we have our domestic procedures where, if war crimes have been committed in our view and the view of our courts, there should be the appropriate courts martial or civilian trials. If a war crime is committed on foreign soil—and we know of the ugly and sad cases which have occurred in recent times—the soldiers concerned should be tried. All that should happen.

What I am saying is that so far as concerns the jurisdiction of the International Criminal Court in relation to war crimes—the elements set out in Article 8—we should hold that over for seven years. We should do that not because the French are doing so—that would be absurd—but because, as an international peace-keeping power, we want the proper protection of our own Armed Forces in the immensely complex situations in which they will increasingly become involved. As my noble friend Lord Tebbit pointed out, even the question of what is a civilian becomes ambiguous and not at all clear. It is particularly unclear at the present time in Kosovo and Macedonia.

These deep concerns have not been allayed. I am very disappointed in the Minister's reply. Our concerns have not been allayed by what she said this evening.

The Minister did not comment on the need to publicise and tell people generally that there are new crimes on the statute book. It is quite wrong that there should be a lack of publicity. I read somewhere—I hope that I am not making any false analogies—that when the Emperor Caligula promulgated laws, he used to ensure that they were placed at the top of very high pillars in very small characters so that no one could read them.

Lord Lester of Herne Hill

My Lords, 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. The words are also in the law of the land, having been duly enacted by Conservative governments on several occasions.

Lord Howell of Guildford

My Lords, I shall be very glad when those handbooks are amended—as I hope they will be—to explain the new risks involved: that these are not war crimes listed only in the Geneva Convention and its protocols but are crimes which are now on our own statute book; and that a higher international court may have the final word on whether these crimes have been committed and on whether investigations into them should be mounted. Then I shall be content—but I have not heard that suggestion from the Benches opposite. For these and many other reasons, I wish to test the opinion of the House on the amendment.

6.54 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 122.

Division No. 1
Allenby of Megiddo, V. Gardner of Parkes, B.
Anelay of St. Johns, B. Geddes, L.
Astor of Hever, L. Glentoran. L.
Attlee, E. Henley, L. [Teller]
Baker of Dorking, L. Hooper, B.
Beaumont of Whitley, L. Howe, E.
Biffen, L. Howell of Guildford, L.
Blatch, B. Jenkin of Roding, L.
Boardman, L. Kingsland, L.
Brabazon of Tara, L. Knight of Collingtree, B.
Bridgeman, V. Lamont of Lerwick, L,
Brougham and Vaux, L. Liverpool, E.
Buscombe, B. Luke, L.
Byford, B. Lyell, L.
Caithness, E. Mancroft, L.
Campbell of Alloway, L. Monson, L.
Colwyn, L. Montrose, D.
Cope of Berkeley, L. Murton of Lindisfarne, L.
Craigavon, V. Northbrook, L.
Crickhowell, L. Northesk, E. [Teller]
Cumberlege, B. Palmer, L.
Dixon-Smith, L. Park of Monmouth, B.
Dundee, E. Perry of Southwark, B.
Elliott of Morpeth, L. Plumb, L.
Elton, L. Plummer of St. Marylebone, L.
Feldman, L. Rawlings, B.
Ferrers, E. Rees, L.
Fookes, B. Renton, L.
Roberts of Conwy, L. Skelmersdale, L.
Seccombe, B. Stewartby, L.
Sharples, B. Swinfen, L.
Tebbit, L.
Shaw of Northstead, L. Trumpington, B.
Shore of Stepney, L. Vivian, L.
Shrewsbury, E. Wilcox, B.
Acton, L. Janner of Braunstone, L.
Alli, L. Jay of Paddington, B. (Lord
Amos, B. Privy Seal)
Andrews, B. Jenkins of Putney, L.
Archer of Sandwell, L. King of West Bromwich, L.
Ashton of Upholland, B. Layard, L.
Avebury, L. Lea of Crondall, L.
Barker, B. Lester of Herne Hill, L.
Bassam of Brighton, L. Lipsey, L.
Berkeley, L. McIntosh of Haringey, L.
Bernstein of Craigweil, L. [Teller]
Billingham, B. McIntosh of Hudnall, B.
Blackstone, B. MacKenzie of Culkein, L.
Borrie, L. Mackenzie of Framwellgate, L.
Bradshaw, L. Maddock, B.
Bragg, L. Mallalieu, B.
Brett, L, Mar and Kellie, E.
Brooke of Alverthorpe, L. Massey of Darwen, B.
Brookman, L. Merlyn-Rees, L.
Burlison, L. Methuen, L.
Carter, L. [Teller] Miller of Chilthorne Domer, B.
Castle of Blackburn, B. Mitchell, L.
Chandos, V. Molloy, L.
Clement-Jones, L. Morris of Manchester, L.
Cocks of Hartcliffe, L. Newby, L.
Colville of Culross, V. Nicol, B.
Dahrendorf, L. Northover, B.
Davies of Coity, L. Oakeshott of Seagrove Bay, L.
Davies of Oldham, L. Orme, L.
Desai, L. Puttnam, L.
Dubs, L. Ramsay of Cartvale, B.
Evans of Temple Guiting, L. Rendell of Babergh, B.
Ezra, L. Rennard, L.
Farrington of Ribbleton, B. Rodgers of Quarry Bank, L.
Roper, L.
Faulkner of Worcester, L. Russell, E.
Filkin, L. Sawyer, L.
Fyfe of Fairfield, L. Scotland of Asthal, B.
Gale, B. Scott of Needham Market, B.
Gibson of Market Rasen, B. Sharman, L.
Gladwin of Clee, L. Shutt of Greetland. L.
Goldsmith, L. Simon, V.
Goodhart, L. Smith of Clifton, L.
Goudie, B. Taylor of Blackburn, L
Gould of Potternewton, B. Thomas of Gresford, L.
Graham of Edmonton, L. Thomson of Monifieth, L.
Greaves, L. Thornton, B.
Grenfell, L. Tomlinson, L.
Hamwee, B. Tordoff, L.
Hardy of Wath, L. Turnberg, L.
Harris of Greenwich, L. Turner of Camden, B.
Harris of Haringey, L. Walker of Doncaster, L.
Harris of Richmond, B. Walmsley, B.
Haskel, L. Warner, L.
Hayman, B. Watson of Richmond, L.
Hilton of Eggardon, B. Whitaker, B.
Hollis of Heigham, B. Whitty, L.
Howells of St. Davids, B. Wilberforce, L.
Hoyle, L. Wilkins, B.
Hughes of Woodside, L. Williams of Crosby, B.
Hunt of Kings Heath, L. Williams of Elvel, L.
Irvine of Lairg, L. (Lord Winston, L.
Chancellor) Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.5 p.m.

Clause 2 [Request for arrest and surrender]:

Lord Howell of Guildford moved Amendment No. 3:

Page 1, line 23, leave out ("shall") and insert ("may").

The noble Lord said: My Lords, this amendment, with which I hope that we shall consider also Amendments Nos. 7 and 8, will be drearily familiar in form as it proposes to insert the word "may" in the Bill instead of the word "shall". Straightaway, in the light of earlier discussions and those in Committee, we can confidently predict that, given the Government's extreme anxiety to stick to the precise wording of the Rome Statute, this will be seen as an offence against that wish. In passing, before explaining why I nevertheless seek to move these amendments, I should point out that this is only a wish.

In the Canadian Parliament, I noticed that the legislation passing into that country's law varies some of the wording. They, too, wished to put the entire statute into law, but they varied the words at a number of points, one of which we shall deal with under a later amendment. I emphasise that that is the wish of the Government, but that it is perfectly possible to achieve the aims of agreeing the statute for moving to ratification—which is what the Government want—without having to put into our own law every single word, as sacred, of the statute. Other countries seem to find ways of getting around that.

The amendments all raise the question of the Secretary of State's discretion. They seek to allow the Secretary of State the option, for whatever reason he thinks fit, not to initiate the sending of documents to a judicial officer, thereby maintaining the autonomy of the United Kingdom in international matters. Amendment No. 3 starts from the point that the Secretary of State is accountable to Parliament. We believe that he should retain residual discretion to refuse to activate a request for arrest or surrender. We recognise the complex series of patterns by which the process of exchange—the dialogue, as it were—between the International Criminal Court and the party states takes place. It is complex. There are many filters and opportunities for appeal, and so on.

I obtained from the House of Commons Library a very interesting summary, when one has been through all the filters, of what would actually happen if a British soldier were accused of a statute crime. First, the ICC would have to decide whether any process was taking place in the United Kingdom, in a British service court overseas, or in the national courts of some third countries, that complied with the tests of willingness or ability. As mentioned in an earlier debate, inability does not really arise. However, if it is a question of willingness, the focus would have to be on whether the investigatory and trial processes would be considered independent, impartial and compliant with the norms of due process; and, if not, whether they were conducted in a manner consistent with the intent to bring the person to justice.

If the party state rejected the idea that these were crimes at all—echoes of our previous debate—the ICC would be in a position to regard the case as admissible. The process would then begin. There would, of course, be the availability of appeal against that and the permission to challenge that ruling. But, eventually, with an appeal having been heard and rejected, the ICC would decide on its own motion that it wished to pursue the case.

These amendments, which propose to change the word "shall" into "may", would provide one more block in the process. Where this nation genuinely felt that someone had done something for which no finger should be pointed at him and no investigation should take place, and where it was clear that he was acting under proper orders in a way necessary in the heat of war or even in the heat of peacekeeping, it would mean that the Secretary of State's discretion would be there to stop the proceedings.

It will, of course, be said that this is putting other words into the statute. That can be done, and is done, by other countries, although perhaps the Government do not want to do it. The "Goldsmith doctrine"—if I may call it that—will be put forward; namely, that if we set a bad example, others will follow it. I applaud the idealism behind that but I doubt very much whether that is the way this wicked world works. Clearly some countries will not sign up to the measure. I refer to the obvious "bad boys" such as Libya and Iraq. Perhaps North Korea will sign up to it. Some responsible nations have not signed up to it. However, I do not think for one moment that they will be influenced one way or another by what we do. We should uphold our international responsibilities. We should maintain our own confidence in our international reputation, but we should also protect our interests and our people. To do that we need some discretion. These amendments offer that discretion. I beg to move.

Lord Lester of Herne Hill

My Lords, the premise of these amendments and, indeed, of the Conservative Front Bench's entire attitude towards the Bill, is that it is undesirable that there should be a supra-national international court to deal with these crimes and that what one should seek to do therefore is to give the Secretary of State as wide a discretion as possible to hamper the transfer of a suspected war criminal to the court. I think that is the premise.

I want to deal briefly with that premise. I speak from personal experience. I had the great privilege of acting on behalf of the United Kingdom, defending it in the Northern Irish state case in the late 1970s that was brought against the United Kingdom by the Irish Republic. As the noble and learned Lord, Lord Archer of Sandwell, will remember as I recall that he was the Solicitor-General at the time, our forces—both the Army and the police service—were accused of acts of torture and inhuman and degrading treatment and punishment of civilian suspected terrorists in interrogation centres in Northern Ireland. The case went to the European Commission and the European Court of Human Rights and eventually the court decided that we were not guilty of torture but of inhuman and degrading treatment—breaches of Article 3 of the convention.

In arguing that case as one of the counsel on behalf of the United Kingdom, led by someone we very much miss, the late Lord Silkin of Dulwich, who was in my view a very remarkable Attorney-General, I was struck that the British civil servants who were part of that team made it quite clear—I hope that I am not breaching a confidence all these years later—that they had come to appreciate the jurisdiction of the Strasbourg court. One of them, a distinguished lawyer, said to me, "We would never have discovered exactly what had gone on in Northern Ireland if there had not been the European Commission and Court of Human Rights. That enabled the government to get to the bottom of what had really gone on". The same government lawyer said to me that the fact finding that was done by the Strasbourg Commission of Human Rights was every bit as good as the fact finding done by an English High Court. In the end we gave an undertaking to the Strasbourg court that we would not repeat the five techniques of interrogation.

I cannot remember anyone among the officials I dealt with and acted for in the Ministry of Defence, the Northern Ireland Office or anywhere else, who did not regard the process, although painful and hard fought all the way, as ultimately beneficial. I should be interested to know whether the noble and learned Lord, Lord Archer of Sandwell, as one of the Law Officers at the time, would agree with that. I make this point because it is not self-evident—

Lord Archer of Sandwell

My Lords, in order to avoid intervening later, I seize the opportunity to say that I totally agree.

7.15 p.m.

Lord Lester of Herne Hill

My Lords, as I say, I hope that I am not speaking out of turn in sharing that experience. But I wish to do so because it illustrates that the premise on which these amendments are based is misguided. It goes without saying—I am sure that the noble Lord, Lord Howell, knows this perfectly well—that the amendment is incompatible with the terms of the statute for the reasons that we have gone over in previous debates and which I do not need to repeat. The noble Lord knows that well, because on the previous occasion the noble and learned Lord the Attorney-General explained why it was incompatible. However, I want to deal with the underlying value judgments here and, as I say, give the benefit of practical experience.

It follows from the premise of the Conservative Front Bench's approach that it would wish that we were not parties to the European Convention on Human Rights or, at any rate, had not accepted the jurisdiction of the European Court of Human Rights, which would be able, and is able, thank heavens, to take cases from IRA—

Lord Kingsland

My Lords, I am most grateful to the noble Lord for giving way. I think that if the noble Lord examines the amendments that my noble friend Lord Howell and I tabled in Committee, he will readily ascertain that far from questioning the jurisdiction of the Court of Human Rights, those amendments sought to reinforce it in the context of this Bill.

Lord Lester of Herne Hill

My Lords, I am glad that the noble Lord, Lord Kingsland, said that. The point I am trying to make is that the position taken by the Conservative Front Bench is inconsistent with that, because any IRA terrorist of the worst kind possible can now bring a complaint against the United Kingdom before a European Court of Human Rights composed of seven to 15 out of 42 judges, of whom only one is British. That is the entitlement under the European Human Rights Convention. They can allege torture or inhuman or degrading treatment or punishment and other things as well. Every one of the 41 countries of the Council of Europe has subscribed to that. We have also incorporated it into our domestic law. It is beneficial that there be a supra-national court that can interpret and apply the international standards in a consistent but not slavishly uniform way.

I submit that the same applies to the International Criminal Court. It is beneficial that there be an International Criminal Court that is able to give a consistent interpretation to the Geneva Conventions and the other conventional and customary international law. These amendments would give the Secretary of State discretion to decide whether or not to forward an ICC request for arrest or delivery to the appropriate judicial officer. That would allow the Minister to block an ICC request from the outset. The terms of the statute applying to the arrest and delivery of an individual subject to an ICC request leave no scope for discretion—I refer to Articles 59 and 89.

I say with great respect that these amendments are entirely inconsistent with the object, purpose and language of the statute. They are simply not permissible if we are to be able to ratify the statute. Therefore, I oppose the amendments.

Lord Goldsmith

My Lords, I thought that I would keep quiet on this amendment but the noble, Lord Howell, tempts me by his reference to a point which I do, and would, make. It is not so much that because we do something everyone else will do something. I do not take that view. But if we were to appear to say that the United Kingdom thinks that justice is optional but we can decide whether or not we think that someone should be prosecuted, that gives an excuse to so many others to say, "We shall protect our friends and only respond to the international court when it concerns people we do not like". I do not think that sentiment is idealist; I think that it is a valid point.

I share the views which the noble Lord, Lord Lester of Herne Hill, has expressed. There is a matter I do not understand which I should very much like to have explained. The provision states that if we receive a request for arrest and surrender, we shall take steps immediately to arrest. How can the United Kingdom ratify the statute, which includes a mandatory obligation under Article 59, at the same time as retaining the right not to comply with it? It is not a question of changing words in the statute. It is not possible to ratify the statute unless we accept that we are assuming an international obligation—and that means that we must assume it.

Baroness Scotland of Asthal

My Lords, I respectfully agree with the comments of the noble Lord, Lord Lester, and my noble friend Lord Goldsmith. I shall not tire the House by repeating everything that was said by my noble and learned friend the Attorney-General when we discussed this matter in Committee. The noble Lord, Lord Howell, is right: we seek compliance with the statute. The ICC Bill is designed to enable the United Kingdom to ratify the Rome Statute of the International Criminal Court. As a number of noble Lords have said, that statute makes it clear that state parties are expected to comply with requests from the ICC for arrest and surrender.

It is important to note that Article 89 sets out that state parties shall, in accordance with the provisions of this part and the procedure under their national law, comply with requests for arrest and surrender. Clause 2 of the Bill sets out the procedure to be followed by the Secretary of State and the appropriate judicial officer when a request is received from the ICC for arrest and surrender of a person alleged to have committed an ICC crime or to have been convicted by the ICC. The clause is designed to enable us to meet our obligations under Article 89 of the statute.

Noble Lords suggest that the Bill should be amended. By doing so, that process of dealing with an ICC request is subjected to a further step which could delay or even frustrate the legitimate surrender of the persons to the ICC or the state of the enforcement. The Government say that the introduction of a discretion is not appropriate at this stage.

In the light of those comments—I do not repeat all that was said on the last occasion; all noble Lords are present—I hope that the noble Lord will feel able to withdraw the amendment.

Lord Howell of Guildford

My Lords, the Government's answer is the one to be expected if the objective is to stick to the letter of the statute. I shall refer later to the point that other countries are able to carry forward the task without sticking to the letter of the statute. But if that is the Government's intention, clearly these amendments were doomed to be rejected.

However, there was a purpose behind the amendments. It was to establish beyond peradventure—I am not sure that it was entirely clear in Committee—who has the final word. When it comes to the admissibility of a case, and the to-ing and fro-ing of appeals and so on, we now know that in the end it is the court that shall satisfy itself that it has jurisdiction in any case brought before it. On its own motion, the court may determine the admissibility of a case in accordance with Article 17.

That is the clear view. As one eminent British lawyer put it the other day, that means that in theory we have to be prepared to have our soldiers tried by the International Criminal Court. This is a sobering clarification. It reinforces my belief that while upholding many of the noble principles behind this project, we must seek at every point to safeguard our own capacity to be a competent player on the international scene by ensuring that our Armed Forces and Crown personnel are protected from new risks. It is not protection from the law if they commit war crimes but protection from new and sometimes vexatious and unpredictable risks.

In the light of what I have said and the Minister's remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Lamont of Lerwick moved Amendment No. 4:

Page 1, line 24, at end insert—

("() The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country.").

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 5 and 6 which stand in my name. Amendment No. 4 deals with amnesties; Amendment No. 5 deals with Northern Ireland; and Amendment No. 6 deals with the jurisdiction of the court as it applies to countries that have not ratified the statute of the ICC.

On amnesties, I accept the good intentions underlying the Bill. However, it is not sufficient to continue to underline the good intentions. It is necessary to examine the consequences. We are familiar with the doctrine of the law of unintended consequences: legislation often has consequences that we do not intend. I believe that the inflexible application of international law in certain areas will make conflict and abuses of human rights more likely.

Amendment No. 4 refers to the treatment of amnesties and states: The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country". Many countries—in Africa or South America—have had internal conflicts where they have come to their own domestic agreements about the past. It has happened in South Africa with the Truth and Reconciliation Commission. The dilemma was well illustrated by recent events in Sierra Leone. The British Government brought pressure for the inclusion within the Sierra Leone Government of a faction which had been involved in what would be agreed generally to be crimes of appalling barbarism—torture; crimes against humanity; and amputating people. When those crimes ceased, those people became potentially liable to legal charges. But the dilemma was well illustrated by the changing attitude of the British Government. They found themselves accommodating people who had done terrible things because they thought that that was the way to peace in Sierra Leone.

On another occasion I gave an example of what the former Minister of State at the Foreign Office was reported to have said in relation to Angola. In the electronic Daily Telegraph he was reported to have held out the offer of safe conduct and amnesty for Jonas Savimbi. The same Minister of State has been an extremely strong supporter of the ICC. But according to the press he was saying that a particular individual should be given amnesty because that was the way to end conflict.

This is the point which has concerned me and where I believe that the International Criminal Court could do harm. The ICC cannot stop a civil war; it cannot stop a terrorist struggle; it cannot remove a tyrant from power. But if some form of peace is negotiated locally involving an amnesty for past offences, the ICC stands ready to nullify that agreement by launching its own prosecutions. Many countries in Eastern Europe, Southern Africa or South America that have made a transition to democracy in the past decade have made provision for such amnesties. It will be left to an international civil servant or an international court to decide when and to what extent to ignore such local peace conditions.

The local equivalent of an Interior Minister or a Home Secretary might offer a pardon, believing that it was in the best interests of his country, even if it did not accord with strict legal justice. As I understand it, the ICC' prosecutor is not authorised to decide on any basis other than strict legal justice, yet he does not have the enforcement power to deliver legal justice. That results in the rigidity of untempered law without the strength of law in a sovereign state. The ICC prosecutor cannot invoke political considerations openly, because he has no accountability to an elected parliament or president. He will depend on extraordinarily politicised private advocacy groups for political support.

I have raised this issue before. I have asked the Attorney-General several times how an amnesty could be treated. In Committee, he answered: The noble Lord returned to the question of amnesty. These are crimes of the gravest kind. It is extremely unlikely that an amnesty could legitimately be given". That last sentence is the most important one. However, he went on, slightly unclearly: But the answer to the question is that the ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might he appropriate where a fair and democratically supported amnesty had been proclaimed, but not where it was a purely bogus or cosmetic amnesty for illegitimate purposes".—[Official Report, 8/2/01; col. 1288.] I interpreted the Attorney-General's reference to "justice" in a strict legal sense and took that answer to mean that it was extremely unlikely that a democratically elected Government could legitimately issue an amnesty within a country to excuse or forgive past crimes and undertake a process of reconciliation.

That is my greatest reservation about the new International Criminal Court. The inflexible application of law is an obstacle to reconciliation. Such an approach or doctrine leads to the idea of unconditional surrender or fighting to the last man. One of the war crimes listed in the statutes of the court is declaring that no quarter will be given. I understand why that is listed as a war crime, but that attitude will be encouraged if the court is not allowed to recognise amnesties within countries. My amendment specifies that there should be a democratically elected government—not a continuing dictatorship—and that the alleged crimes should be internal to that country. The court could do enormous harm by interfering with such processes.

Amendment No. 5 would apply that logic to Northern Ireland, because the situation there illustrates that dilemma. The Government have put strict legal justice aside in the pursuit of a political settlement. No doubt the Minister will tell me that in some way the International Criminal Court is irrelevant to Northern Ireland, but my point is logical and correct. If we are prepared to have an amnesty in Northern Ireland and believe that no one should interfere with that from outside, why do we think that it is right for the International Criminal Court to interfere in other countries that have decided to put aside strict legal justice and make a political settlement to advance peace and reconciliation? That is an important point.

A national criminal justice system always provides a safety valve—a recourse to a pardon or an amnesty issued by political Ministers to stay the effect of a prosecution in the courts. There is no provision for that in the ICC.

Amendment No. 6 provides that the Secretary of State shall not transmit the request if the person alleged to have committed an ICC crime is a citizen of a country that has not ratified the statute of the ICC. One of the most contentious points is the extension of the jurisdiction of the ICC to countries that have not ratified the statute. That is one of the United States Government's reservations. They are fearful even now that the court will be able to put American servicemen on trial. That is particularly disquieting some people in that country.

The Rome Statute extends the court's jurisdiction not only over nationals of states that are parties to the statute, but over nationals of non-party states when they are charged with aggression or war crimes against nationals of states that are party. That is bad enough, because it effectively extends the court's authority over countries that do not consent to it. That is a novel concept in international law, although there would be some protection for non-party states if their questionable military action involved other nonparty states.

I have an opinion from a professor of government at Cornell University that under Article 12.3, when a state seeks prosecution against officials of another state, even when the charging state is not a party and will not submit to prosecutions of its own officials, it can still bring prosecutions against non-party states. In addition to waiving traditional norms of consent, the Rome Statute also appears to waive traditional norms of reciprocity, making it easier for the prosecutor to play politics against unpopular states.

I very much hope for a clear response from the Minister on those three amendments, particularly on the amnesty in Northern Ireland. I have raised the issue on several occasions and have not yet had a clear reply.

Lord Monson

My Lords, on Second Reading I expressed the fear that much of the Bill was effectively, even if not consciously, a stepping stone on the Nay to world government. Such a prospect will not worry the minority who favour world government—quite the opposite—but it should worry everyone else. Amendment No. 4 in particular would help to diminish those fears. The same would have been true of Amendments Nos. 3, 7 and 8.

Moreover, without these amendments, any future South African-type settlement, as the noble Lord, Lord Lamont, pointed out, and any future Northern Ireland-style settlement, or perhaps one should say potential settlement, would not be possible. Prosecution would be obligatory in every single case. The views and the prejudices of those living hundreds, or perhaps thousands, of miles away would count for more than the considered judgments of those living on the spot. Therefore, I certainly support Amendment No. 4, moved so well by the noble Lord, Lord Lamont.

Lord Lester of Herne Hill

My Lords, perhaps I may deal with each of the amendments in turn, in the way that the noble Lord, Lord Lamont of Lerwick, has done. I shall explain briefly why we are opposed to each and all of them.

Amendment No. 4 would mean that the United Kingdom would not co-operate with an ICC request where a democratically elected government had already granted amnesty to an individual in relation to the crime committed. It is ironic that this amendment should be moved only two days after Judge Gabriel Cavallo in the Argentine ruled that amnesties in that country in relation to a case of kidnapping of children were unconstitutional and should be set aside. No doubt, if the amnesty remains overturned under the legal system in the Argentine, that case will lead to a number of prosecutions of child kidnappers and others who abuse children.

That amnesty, like many others in Latin America and elsewhere, arose as military regimes gave way to democratically elected governments. In its wake, amnesty laws were passed virtually everywhere in Latin America. They were passed as blanket amnesties, after serious crimes had occurred, without any recognition of the suffering of the victims and their families; and they were passed without any investigation into the circumstances and without any attribution of responsibility for the commission of those serious crimes.

That is the problem which exists in relation to blanket amnesties which were granted, as I said, as dictatorships gave way to democracies. Such an approach is wholly incompatible with the scheme—

Lord Monson

My Lords, I am sorry to interrupt the noble Lord. Does he agree that if those amnesties had not been granted, the authoritarian regimes of which he speaks would not have relinquished power? Those Latin American countries might still be under the grip of dictatorship today.

Lord Lester of Herne Hill

My Lords, it is difficult to answer that question as a general proposition. For example, during the Second World War, the allies pursued—in my view, correctly—a policy of unconditional surrender. At the time, some argued that that was a mistaken policy because it prolonged the war. I believe that it was the correct policy. The United States—I want to place this on record in view of some of the things that have been said about the United States—opposed the view of Sir Winston Churchill. Churchill's view was that we should, in his words, simply "string up" the war criminals at the nearest lamppost without a trial.

The United States took the contrary view that due process, in every sense, should be followed at the Nuremberg military tribunal. It deputed Justice Robert Jackson from the Supreme Court of the United States to become the prosecutor on its behalf. In my view, the stance adopted by the United States was correct, and the policy of unconditional surrender was also correct. However, it was a political judgment which may well have led to a prolongation of the war. The truth is that one can only answer that question in the light of the particular political circumstances at the time.

The point that I seek to make is simply that a blanket amnesty which involves no investigation of the circumstances, nothing for the victims, and no attribution of responsibility is incompatible with the scheme of the statute. It would allow countries to shield war criminals and those who commit crimes of genocide and crimes against humanity. That is why I do not support Amendment No. 4.

Lord Lamont of Lerwick

My Lords, is there not a great deal of difference between a situation of international conflict, such as the Second World War, in relation to which I accept what the noble Lord says about unconditional surrender, and a situation which arises internally within a country? If one applies such absolutist standards, it is not we who suffer, as we suffered in the Second World War; it is the people of that country who suffer because a regime, which otherwise would give way, is kept in power. Would it not be better if Fidel Castro was given an amnesty for the future and was exempted from charges relating to the 40,000 deaths attributed to his regime?

7.45 p.m.

Lord Lester of Herne Hill

My Lords, there is a difference between war among states, a situation of internal armed conflict, and a situation which comes within the domestic frontiers of a state alone. However, the character of the crimes with which one is concerned remains the same. Genocide is genocide, whether it is committed against German Jews by the Nazis within Germany or against Jews in Poland. The fact that, in one case, the crime transcends national frontiers and, in the other, is entirely internal is regarded in international human rights law and humanitarian law as making no difference. Those are genuinely universal crimes; they are as much the concern of the world as the old crimes of piracy and slavery, which long ago were recognised to be crimes of a universal character.

Therefore, my answer to the noble Lord is that, of course, politically there may be differences. However, in terms of responsibility for crimes of that character, that responsibility is universally international. Blanket amnesties are incompatible with the statute.

So far as concerns Amendment No. 5, which relates to the Good Friday agreement, I want to make a small, technical point and I shall make it briefly. The statute is not retrospective and therefore would not apply to offences committed before the statute came into force. Therefore, that amendment, which I do not believe is pressed seriously, would be inept.

Amendment No. 6 would mean that if, for example, Syria did not ratify the ICC Statute and a Syrian citizen made his way to Israel, where he participated in a heinous crime against humanity, he would be entirely safe from prosecution by the ICC if he made his way to the United Kingdom. Obviously that would also be in breach of the statute and, in my submission, should be opposed on that ground.

Lord Goodhart

My Lords, I rise simply to deal with an aspect of Amendment No. 4. I am a member of the International Commission of Jurists, which is an international human rights organisation. Quite frankly, at present one of the most serious problems in relation to international human rights law is impunity. Impunity a rises when, as a result of an amnesty or for other reasons, those who have perpetrated grave crimes against humanity, genocide or whatever, within their own country are not capable of being brought to prosecution.

In relation to amnesties, one sees in South Africa an exceptional situation. I believe that the work of Archbishop Tutu's Truth Commission has been astonishing and has been admired around the world. I do not believe that a prosecutor of the International Criminal Court would be likely to take the view that an amnesty given as a result of that commission would be in breach of human rights law. I would not in any circumstances expect to see a prosecution.

However, that is the exception and not the rule. In far too many countries elsewhere—particularly in Latin America—new governments, many of them democratic, have, under pressure from the military regimes, agreed to give amnesties for grave crimes against humanity committed by the previous military regimes. That may or may not be a necessity as regards the internal politics of those countries.

I do not believe that that is any reason why other countries should be prevented from investigating the guilt of those who are alleged to have committed grave crimes if they come within the jurisdiction of another country or of the International Criminal Court. For that reason I feel very strongly that acceptance of Amendment No. 4, which would release from the jurisdiction of the International Criminal Court those who have been amnestied under pressure, would not be right and proper. I most strongly oppose it.

Lord Howell of Guildford

My Lords, I wish to speak briefly to Amendments Nos 4 and 5 in the name of my noble friend Lord Lamont. These are very interesting and important amendments. Even in this brief debate they bring out the problem that we are dealing with a clash of two very noble cultures. One is that justice must be upheld and that the legal systems of the planet must be so designed to hunt down the butchers, which is completely right, and the other is that we need to seek peace. That requires sometimes statesmen and sometimes forgiveness and the blotting out of memories on an heroic scale. I am not sure that we would have peace in Europe today unless to some degree we were prepared to yield to the second culture as well as uphold the first. They do clash and there is no way round that. No one wants military governments or crimes to go unpunished, but we want peace. Sometimes these highly noble aims conflict head on.

I believe that the noble Lord, Lord Lester, put his finger on it, as one would expect, when he said that no general propositions were possible over the amnesty question. There are good and bad amnesties, cheat amnesties and desperately needed ones. We are going to move into that world more and more. That reinforces the point I was unsuccessfully making in the previous debate that if we can introduce some flexibility into the statute, we might be living in a better world than if there is none. When we are told, "I am sorry, it is not possible because it is incompatible with the statute", that is the voice of rigidity and of maybe noble ideals, but making absolutely certain that in future those noble ideals will come under impossible strain. That is sad.

Lord Lester of Herne Hill

My Lords, I wonder whether the noble Lord is aware that discretion is built into the statute for the independent prosecutor to exercise his or her judgment in a matter. A truth and reconciliation commission investigating the sort of case my noble friend Lord Goodhart mentioned, properly investigating all the facts and acting in a completely different spirit from the type of case to which I was referring, would no doubt be taken into account by the prosecutor. It would be inconceivable to imagine a prosecution.

Lord Howell of Guildford

My Lords, I was aware of that. Again, we have what from one point of view appears to be a sensible amnesty and from another it may seem to be an intolerable brushing aside of terrible crimes committed and victims ignored, to use the reference of the noble Lord made. Those are the kinds of issues that may need to be argued. There may be an unforeseeable situation where a different view is taken initially by the prosecutor or by the pre-trial chamber from that held by a nation state that an amnesty is needed in order to move on from some dark difficulty. I do not know.

Lord Monson

My Lords, to reinforce the point that the noble Lord was making, would he agree that in 1943 Winston Churchill decided to pardon and not prosecute Italian generals who were guilty of grave war crimes in the Balkans? He did so because he considered that course to be the lesser of two evils and that it would help to speed up the conclusion of the war against Nazi Germany, which was the greater of the two evils.

Lord Howell of Guildford

My Lords, I am grateful for that fascinating history lesson. I suspect that history is littered with such instances and the future will be as well, even though we want to make it a better world than anything which existed 57 years ago in Europe. I shall be very interested to hear the noble Baroness's reply to my noble friend on this matter.

As regards the amendment relating to Northern Ireland, we have all said to each other umpteen times that this Bill is not retrospective and nor is the power of the court. But the Northern Ireland problem is not yet solved. The peace process is by no means in the bag. The concessions which may have to be made on both sides have by no means come to an end. There may be many difficult decisions ahead and some of them could clash with the apparent incompatibility and the requirements of the Bill. I look forward to hearing the observations of the Minister.

Baroness Scotland of Asthal

My Lords, I resist all three of the amendments. I shall deal with them in turn. As regards amnesties, the crimes which the ICC will prosecute are, as noble Lords know, some of the most serious imaginable for which amnesties would rarely be appropriate. The noble Lord, Lord Lester, has already said that the ICC prosecutor has a discretion not to institute a prosecution in the interests of justice. That may be appropriate where a fair and democratically supported amnesty has been proclaimed. The South African situation immediately springs to mind.

In negotiating the statute, we have constantly to strike a balance between upholding our own system, which we believe should stand up to any amount of challenge, and introducing huge gaps into the statute which could be used by dictators to avoid justice for their own people by introducing amnesties with no democratic support. We believe that we have got it right and that the principle of "complementarity" will allow us to take our own decisions in the context of our own well-respected judicial system.

The key point here is that the matter is for the ICC to determine. If the question of a domestic amnesty arose in respect of an individual whom the ICC wishes to investigate, the state concerned would no doubt take that up with the court at the point it was notified that an investigation was being considered. If there were to be a difference of will, it would promote reconciliation in war-torn societies by rightly placing responsibilities on individuals rather than on the communities.

I am sure that it is also of interest to the House to note that the Rome Statute provides that, if an investigation or prosecution would harm international peace and security, the UN Security Council will have the power under a Chapter VII resolution to request the ICC to defer action for an initial period of 12 months, which could be renewed. I hope that that is of some reassurance to the noble Lord and the House in relation to the substance of his amendment.

Perhaps I may touch on two other matters. The noble Lord again raised the position of my right honourable friend Mr Hain as regards commments he is alleged to have made in relation to Jonas Savimbi. I believe later he mentioned SANCO. I am surprised that the noble Lord should raise this issue for, I believe, the second time because my right honourable friend Peter Hain wrote to the noble Lord, Lord Lamont, on 24th August last year to set out his position in response to the comments made by the noble Lord that Mr Hain had called for immunity for Savimbi. In his letter Mr Hain stated that he had given no speeches calling for immunity from prosecution for Jonas Savimbi, as claimed. He made it clear in terms that, I consider him to bear prime responsibility for the continued conflict in Angola and the suffering of hundreds of thousands of Angolans. Leaders like Savimbi are living examples of why support for the International Criminal Court is so strong". He went on to say: Our first priority is and should be to stop the killing in Angola. The best outcome would be a negotiated settlement, which would inevitably include UNITA. For the higher purpose of saving lives, it may be necessary to enter into careful negotiations with Savimbi in the first instance and a safe passage may be an issue here. But that would not amount to ignoring his crimes or offering immunity". My honourable friend made it clear that no amnesty was being suggested.

8 p.m.

Lord Lamont of Lerwick

My Lords, I intervene because I do not wish to be accused of misrepresenting the Minister of State. I said that his comments were reported. I checked with the newspaper that reported the comments and it maintains that its report was accurate. When I wrote to Mr Hain a second time about the matter, he wrote back to me saying, "I did use the words that you quote". He confirmed that he had used them. The last part of the remarks that the noble Baroness read out was not a direct quotation.

Baroness Scotland of Asthal

My Lords, my honourable friend went on to say that unfortunately the newspapers did not quote all that he had said—they never do—because they did not report all of the comments that I have just read out. I am sure that the noble Lord agrees that that was made plain in the letters. I have both letters with me; if it helps the noble Lord to refresh his memory, I could read out all of them. I notice that I am the one wearing glasses; I do not know whether the noble Lord needs them to help him.

On the SANCO immunity, a difficult decision was made at a time when people were trying to bring to an end appalling violence. The amnesty that they gave at that stage did not relieve perpetrators of war crimes of their responsibilities under international law. Subsequent events indicate that the amnesties will not bring peace so long as those responsible for past crimes retain their evil ambitions and see the desire for peace as a sign of weakness. Justice places responsibility for crimes on individuals, not communities. If we really want reconciliation, it is important to deal in a fair and proper way with such matters.

I turn to Amendment No. 5, which the Government cannot accept. First, it would breach our obligations to the ICC. Secondly, it appears to give life-long immunity from prosecution to anyone who is released following the Good Friday agreement, whatever the crimes they may subsequently commit. That is not, I confess, an idea that we could ever countenance. Thirdly—I say this with the greatest respect—the amendment is utterly unnecessary. No ICC crimes have been committed in Northern Ireland and we sincerely hope that they never will be. However horrendous the individual terrorist atrocities have been in Northern Ireland, they are not war crimes as defined under international law. They would not therefore come under the jurisdiction of the ICC.

Lord Lamont of Lerwick

My Lords, will the Minister please explain why crimes committed in Northern Ireland would not come under the heading of genocide? The ICC statute states, 'genocide' means … acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such … Causing serious bodily or mental harm to members of the group".

Baroness Scotland of Asthal

My Lords, the mere recitation of that definition should dictate why the struggles and difficulties in Northern Ireland do not fall under it. It has never been suggested that the term could properly be applied to Northern Ireland; there has been a deal of agreement on that.

Lord Lamont of Lerwick

My Lords, why not?

Baroness Scotland of Asthal

My Lords, because sense usually prevails, which is appropriate.

Lord Lester of Herne Hill

My Lords, does the Minister agree that one answer to that question is that whatever monstrous acts of terrorism have been committed by either side in Northern Ireland, they are not directed towards the destruction of the Catholic or Protestant populations or their ethnic forebears on the Celtic or Gaelic sides? The suggestion is a sort of insult—I know that no insult was intended by the noble Lord, Lord Lamont—to the concept of genocide; the suggestion might devalue the concept, which is directed at, for example, the holocaust.

Baroness Scotland of Asthal

My Lords, I most respectfully agree with those comments.

The fourth reason that we cannot agree to the amendment is that were such ICC crimes ever to be committed in the future, they would be investigated and prosecuted by the appropriate domestic authorities. As a result, the ICC would not have jurisdiction. I respectfully suggest that although the noble Lord, Lord Lamont, wishes to conflate the situation in Northern Ireland with those in other parts of the world, it is important to remember that the early release of prisoners is not an amnesty. There has been no amnesty for prisoners released under the Northern Ireland (Sentences) Act. All such people have had to serve a minimum period in custody prior to release. Moreover, no outstanding prosecutions have been dropped.

Fifthly, in so far as the noble Lord wishes to raise the hypothetical argument that the ICC would wish to have jurisdiction over war criminals in another country who have been released on licence under a peace agreement, I respectfully suggest that he might with advantage glance at paragraph 3 of Article 20 of the ICC Statute. That makes it clear that there are very limited circumstances in which the ICC could try someone who has already been tried, with respect to the same conduct", and that there are carefully drafted criteria on which such decisions would be made. I hope that my answers encourage the noble Lord to withdraw Amendment No. 5.

I turn to Amendment No. 6. I regret that I cannot accept that amendment either. The import of the noble Lord's suggestion was that we should not surrender to the ICC any national of a state that is not a party to the ICC, however appalling the crimes he may have committed. That is contrary to Article 12 of the Rome Statute, which states that the court may exercise its jurisdiction if either the state of nationality of the accused or the state on whose territory the crime was alleged to have been committed is a party to the court. The statute also provides that a non-party state can consent to the ICC's investigating a crime on its territory or that of its nationals. The ICC will therefore have jurisdiction over citizens of a country that has not ratified the statute only where they have committed their crimes on the territory of the state party, where the non-party state in question has given its consent or where the Security Council has referred to the court a threat to international peace and security.

The noble Lord asked about paragraph 3 of Article 12. The short answer is that a non-state party will not be able to refer cases to the ICC. The ICC Statute will enable the court to investigate crimes committed by rogue states on the territories of state parties. To take an historical example, it would have dealt with war crimes alleged during the invasion of Kuwait by Iraq if Iraq were a state party, which we might safely assume it would not be. If the ICC were not able to act in such circumstances in future, the message to nonparty states would be that they may safely commit ICC crimes with impunity anywhere in the world.

I agree with those noble Lords whose spoke against the amendments. I hope that, having considered the matter, the noble Lord will not test the opinion of the House on any of the amendments.

Lord Lamont of Lerwick

My Lords, I am grateful to the noble Baroness for her reply. However, with the exception of my second and third of my amendments, I remain extremely unconvinced.

It seemed to me that the noble Baroness's reference to international peace and the UN does not deal with the situation of a civil war. I can imagine several situations in several countries where it would be better were an amnesty to be announced and the past forgotten in order to end a conflict. I can think of the very obvious example of Colombia. The most terrible things are happening in Colombia and yet negotiations are taking place between two groups of people. The most terrible crimes have been committed on at least two sides, if not on three sides. Would it not be much better if there were an amnesty and the conflict were ended? No good would come from outside agencies deciding to intervene; deciding to haul people before some international court.

I accept some of the points which the noble Baroness made about my amendment relating to Northern Ireland. The noble Baroness can play with words and she can say that things mean what she wants them to mean. She shakes her head but she has no justification in logic. The fact is that in the name of politics we have set aside the due process of law in order to achieve a political settlement. We are so high and mighty that we think we can deny that to other countries but we do it to ourselves. That is the flaw in this whole international court: its inflexibility will apply only to the weak, to the small. When it comes to the large and powerful country, it will not apply to them. As the noble Lord, Lord Robertson, said the other day, the defendants brought before the ICC will be, from countries with no superpower support". That is the real difference.

When we want the court to be flexible, when it has to be flexible, it will be made flexible. But when there are little countries to be bullied and we can go round meddling in the name of justice, with support from the NGOs, then we shall interfere anywhere, even that means that a civil war will last longer and lives will be lost as a result.

I am afraid that I was totally unpersuaded by the noble Baroness's attempt to say that what has happened in Northern Ireland does not fall within the definition of genocide. Causing serious bodily or mental harm to members of a group plainly falls within that definition.

Lord Avebury

My Lords, does the noble Lord not think that the whole point of the International Criminal Court is to deter atrocities of the kind which have been committed in Colombia? If the ICC had been in operation all those years, perhaps the atrocities that have occurred in that unhappy country would have been mitigated.

Lord Lamont of Lerwick

My Lords, I fear that that is unrealistic. The financial gain that is at stake in Colombia is so immense that I fear that that is wishful thinking. I disagree with the point which the noble Lord is making and has made before; namely, that somehow the ICC will deter things that have happened in the past from happening in the future. I see no reason why that should be the case. It may be that a few dictators will travel rather less than they have travelled before but they will be less likely to stand down. We shall not find Fidel Castro taking a country house in Andalucia, which might be the best of all possible worlds.

I am not persuaded by what the noble Baroness said and I should like to test the opinion of the House on Amendment No. 4.

8.14 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 88.

Division No. 2
Allenby of Megiddo, V. Kingsland, L.
Astor of Hever, L. Lamont of Lerwick. L. [Teller]
Attlee, E. Lyell. L.
Bridgeman, V. Monson, L.
Buscombe, B. Montrose, D.
Byford, B. Murton of Lindisfarne. L.
Colwyn, L. Newton of Braintree, L.
Crickhowell, L. Northbrook, L.
Dixon-Smith. L. Northesk, E.[Teller]
Dundee, E. Onslow, E.
Fookes, B. Park of Monmouth, B.
Geddes, L. Renton, L.
Glentoran, L. Shrewsbury, E.
Henley, L. Skelmersdale, L.
Howell of Guildford, L. Tebbit, L.
Acton, L. Carter, L.[Teller]
Addington, L. Chandos, V.
Amos, B. Clement-Jones, L.
Andrews, B. Cocks of Hartcliffe, L.
Archer of Sandwell, L. Davies of Coity, L.
Avebury, L. Davies of Oldham, L.
Barker, B. Desai, L.
Bassam of Brighton, L. Dubs, L.
Berkeley, L. Evans of Parkside, L.
Billingham, B. Farrington of Ribbleton, B.
Blackstone, B. Faulkner of Worcester, L.
Borrie, L. Filkin, L.
Bradshaw, L. Fyfe of Fairfield, L.
Brennan, L. Gale, B.
Brett, L. Gibson of Market Rasen, B.
Brooke of Alverthorpe, L. Goldsmith, L.
Brookman, L. Goodhart, L.
Burlison, L. Gould of Potternewton, B.
Greaves, L. Northover, B.
Grenfell. L. Oakeshott of Seagrove Bay, L.
Hamwee, B. Phillips of Sudbury, L.
Hardy of Wath, L. Puttnam, L.
Harris of Haringey, L. Ramsay of Cartvale, B.
Harris of Richmond, B. Rendell of Babergh, B.
Haskel, L. Russell, E.
Hayman, B. Scotland of Asthal, B.
Hilton of Eggardon, B. Scott of Needham Market, B.
Hollis of Heigham, B. Shutt of Greetland, L.
Howells of St. Davids, B. Simon, V.
Hoyle, L. Smith or Clifton, L.
Hunt of Kings Heath, L. Stone of Blackheath, L.
Irvine of Lairg, L. (Lord Taylor of Blackburn, L.
Chanceller) Thomas of Gresford, L.
King of West Bromwich, L. Thornton, B.
Lea of Crondall, L. Tomlinson, L.
Lester of Herne Hill, L. Turnberg, L.
McIntosh of Haringey, L. Turner of Camden, B.
[Teller] Walker of Doncaster, L.
McIntosh of Hudnall, B. Warner, L.
Mackenzie of Framwellgate, L. Whitaker, B.
Maddock, B. Whitty, L.
Mar and Kellie, E. Wilkins, B.
Miller of Chilthorne Domer, B. Williams of Crosby, B.
Mitchell, L. Winston, L.
Morris of Manchester, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 5 and 6 not moved.]

Baroness Ramsay of Cartvale

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 9.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.