PROTECTION AND SAFEGUARD OF PRISONERS OF WAR

HL Deb 08 March 2001 vol 623 cc340-6

(" . This Act shall have effect subject to the making of an interpretative statement on ratification of the ICC Statute by Her Majesty's Government that measures for the protection and safeguard of Prisoners of War under Article 8 taken in armed conflict of an international character, is to be reviewed by members of the Assembly of State Parties for redefinition and clarification.").

The noble Lord said: My Lords, the amendment is concerned with war crimes committed against prisoners of war taken in armed conflict, as defined by the provisions of Article 8 of the ICC Statute, which the Bill will incorporate into our domestic law. There is no precedent for delaying a Bill after enactment as proposed by the amendment, which has been accepted by the Table. The procedure of your Lordships' House is a matter for the House and has never been inhibited by precedent.

The amendment would commit the Government to making an interpretative statement on ratification in the broad terms of principle proposed. Later on, they would have to make a detailed proposal, which, if accepted, would be implemented by the Assembly of State Parties under the special regime on the interpretation and application of Articles 6 to 8 contained in Article 9. Those articles are set out in Schedule 8. Article 9, which makes provision for the special regime, is on page 66 of the Bill.

Under Article 9.1, the preparatory commission for the ICC has already prepared a draft text of proposals to assist the court in the interpretation and application of Article 8. The document is called Draft Text of Elements of Crimes and is dated 6th July 2000. When that document has been approved by two thirds of the members of the Assembly of State Parties, it will become the substantive instrument on the interpretation and application of Article 8.

The amendment would commit the Government to making proposals for amendments to the Elements of Crimes document, covered under Article 9.2. The draft text would take effect after consideration by the preparatory commission and approval by a two-thirds majority in the assembly. It would have to be submitted some time before 2007, when the next meeting of the assembly would be convened for that purpose.

The form and content of such proposals for amendment, which the Government would be committed to making and on which they would no doubt wish to consult, is in no way pre-empted by the amendment. It may not be apparent on the face of the Bill, but our domestic courts will apply Article 8 as interpreted by the Elements of Crime document, as amended from time to time.

In a letter of 26th February, the noble Baroness, Lady Scotland of Asthal, offered to bring the issue of measures of safeguard and protection for prisoners of war to a review committee, which I assumed to be the meeting of the assembly in 2007, if there was general concern.

At this stage, I should like to pay tribute and express my personal gratitude to the noble Baroness, the noble and learned Lord, Lord Williams of Mostyn, and the officials of the Foreign and Commonwealth Office and the Home Office for the help that they have given me in this affair. Without it, it would have been very difficult for me to make sense of these submissions, if they make sense at all.

The spirit of that offer of an undertaking is much appreciated. However, it does not deal with the essence of the problem. For reasons that are apparent—if I may, I shall refer to those in a moment—concern already exists in relation to the Elements of Crimes, the draft of which, dated 6th July, has been approved. Curiously enough, a concern, which will become apparent later, already exists on the part of the forces with regard to the subject of prisoners of war. It was referred to in the papers over the past two days.

If the Government are unwilling to make an interpretative statement on ratification, an undertaking will be sought. It would be wholly effective and very simple to apply. In terms, it would propose amendments to the Elements of Crimes under Article 9.2 in whatever form or content the Government may choose. That would be wholly sufficient and wholly relevant, and would deal with the present matters of concern. On that basis, there would be no need for the Bill to be amended.

The justification for this amendment and for seeking such an undertaking is that there is a need for review by the assembly under Article 8 as to the redefinition and clarification as it stands and as it shall be interpreted by the Elements of Crimes of 6th July.

First, there is a disparity of provision—I shall come to the detail later—as between armed conflict which is of an international character and that which is not of an international character. Under the current conditions of armed conflict, there is a need for redefinition and clarification. There is a concern that account must be taken of the new dimension of armed conflict—that which is unmanned, controlled by robotics, sensors, lasers, radar, or what have you—in which people will always be taken prisoner. There is no proposal to reconvene the high contracting parties to consider amendments to the Geneva Conventions, which are also subservient to a similar ambiguity.

One finds a veritable cat's cradle of complexity under Article 8 on page 65 of the Bill and, in particular, although your Lordships do not have the document, on pages 21 and 23 of the draft Elements of Crimes document. In sub-paragraphs (v) and (vi) of Article 8.2(a) on page 63 of the Bill, one will find the only two provisions applicable to prisoners of war who are taken in armed conflict of an international character.

That is further defined at page 21 of the Elements of Crimes as referable to "armed conflict" and "international armed conflict", as if such were distinct concepts. If, as I understand it, according to public international law, armed conflict of an international character is dependent upon having been heralded by a formal declaration of war between nation states, does that govern this disparate further definition?

Again, Article 8.2(b) on the same page of the Bill appears to be of general application concerning serious violations of the law and customs of war in "international armed conflict". In Article 8.2(b)(xxi) on page 65, outrages on personal dignity, humiliating and degrading treatment are described, but there is no reference to prisoners of war as such.

Finally, at page 33 of the Elements of Crimes document, there is express reference to armed conflict as if it were distinct from international armed conflict. One will see that Article 8.2(c) on page 65 of the Bill is also of general application and applies only to armed conflict which is not of an international character. Again, there is no reference to prisoners of war as such. I shall not suggest that noble Lords should look at pages 37 to 48 of the draft text of the Elements of Crimes document; in any case, they will not have a copy of it.

This matter is incredibly complex and raises a question which requires clarification. Without seeking an answer, one may well ask: what is the concept of armed conflict, as distinct from armed conflict of an international character, as used in Article 8 and interpreted by the draft text? Which provisions apply when airmen are shot down when operating under the assumed authority of the United Nations or when serving under the aegis of NATO in a rapid reaction force and are taken prisoner?

Albeit that the ICC has jurisdiction to develop its own body of jurisprudence, is there not an overwhelming case for review with a view to redefinition and clarification? Is not the initiative proposed by this amendment—to seek to amend the Elements of Crimes text—worthy of being taken by our Government? Would not that be of assistance not only to the [CC but to our own courts—the protecting power—the prisoners and diplomatic intervention on their behalf?

I thank the national ex-prisoners of war association for its support. It has the merit of general ongoing permanency, which members of the Colditz Association, such as I, are unable to share. I have spoken to no one, save those in time to come, who would reap the benefits. I beg to move.

5.15 p.m.

Lord Archer of Sandwell

My Lords, I believe that we all appreciate the concerns which underlie the noble Lord's amendment, which he raised very properly at Second Reading and again in Committee. It was on an issue to which he brings his own experience arising from a distinguished record of service.

The problem is that whatever may have been wrong with the text of the statute, that is not something which we can rectify by an amendment to this Bill, as the noble Lord very fairly recognises. What I understand troubles the noble Lord is that in Article 8.2(a) the mention of prisoners of war applies only to two very specific kinds of offence and not to the others and that in Article 8.2(c), as spelled out in the Elements of Crimes, it does not specifically protect those who are taken as prisoners of war in internal conflicts.

If they were unprotected, that would certainly be a defect which needed to be addressed. But as my noble and learned friend the Attorney-General explained in Committee, the definition of those protected is wide enough to include those who are taken as prisoners of war whether in international or internal conflicts. In Article 8.2(a) it appears that offences committed against anyone are brought within that article, and that would automatically include prisoners of war.

In Article 8.2(c) I would have thought that they would be, persons taking no active part in the hostilities". Therefore, I hope that the anxieties are misconceived. But I appreciate that if a statute is effectively to protect a category of potential victim it is not sufficient that offenders may in fact be prosecuted. It must be clear in advance to potential transgresssors that offenders are liable to prosecution. It may have been better if that had been done by a clearer specific inclusion in the text.

It may very well be that had the statute been drafted by a committee of your Lordships' House, some of the provisions would have been drafted differently. But a text produced by an international conference is likely to reflect the give and take which inevitably obtains on those occasions, otherwise there would have been no statute.

As I understand it, what the noble Lord seeks to achieve is to ensure that his concerns, including the text of the Elements of Crimes, will be addressed at the first reasonable opportunity. I would certainly support his appeal to my noble friend, first, to set on the record for all to see an assurance that the existing text does in fact cover those taken as prisoners of war and, secondly, to give an assurance that the text will be considered at the first reasonable opportunity.

Having said that, I hope that the noble Lord is not minded to press his amendment to a Division today because it would almost certainly be defeated. That might well be misunderstood by those on whose behalf he has raised the matter as amounting to a rejection of the argument, not as regards its procedural aspects, but on the merits of the content. That would not reflect the sympathy which I am sure the noble Lord's amendment has attracted in all sections of this House.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal)

My Lords, I say straightaway to the noble Lord, Lord Campbell of Alloway, that the sympathy referred to by my noble and learned friend Lord Archer of Sandwell is very much felt on this side of the House generally. We understand the importance which the noble Lord rightly places on this issue, and agree with him. The difference is that the Government's view is that any statement made in the terms suggested by the noble Lord, Lord Campbell, would in fact hinder the protection of prisoners of war rather than advance it.

The provisions of the Bill which deal with prisoners of war reflect the terms of the Rome Statute, which in turn reflects the state of international law as it is. If the law is insufficient—a point about which we are not convinced—then it is the law itself—the Geneva Convention and the additional protocols—which needs changing rather than the Rome Statute. It is our belief that the wording of that statute, linked with the additional definition provided by the Elements of Crimes to which the noble Lord has already referred, is sufficient both to meet the noble Lord's concerns and to allow the judges of the International Criminal Court flexibility to meet new circumstances as they arise. We understand the concern expressed by the noble Lord about the new forms in which those problems might manifest themselves. A statement in the terms suggested by the noble Lord, Lord Campbell, would suggest otherwise and therefore cast doubt on the efficacy of the existing provision.

However, we should like to make it clear that we share the noble Lord's concern for the plight of prisoners of war and indeed all prisoners detained in conflict situations. I can assure him that the Government will watch closely the developing jurisprudence of the International Criminal Court. Should it appear, contrary to our current belief, that there are inadequacies in the relevant provision, we shall raise the matter in all appropriate fora including any review conference called under Articles 121 and 123 of the statutes to ensure that the interests of prisoners of war are properly protected. With that assurance, I hope that the noble Lord will not feel it necessary to press the amendment.

Lord Campbell of Alloway

My Lords, I am very grateful to the noble and learned Lord, Lord Archer of Sandwell. I am extremely disappointed that the matter does not seem to be understood. Although I agree that the texts do represent the state of public international law as it is today, I disagree that it is clear and capable of ready understanding. I take the view that it quite clearly warrants clarification, review and redefinition.

The Government will not accept that, so I cannot ask the noble Baroness to give an undertaking on that basis because she will not and cannot. But I ask for an undertaking to submit proposals for amendments to the Elements of Crimes if the Government cannot give an undertaking to implement the amendment as it stands.

That leaves open the question and does not commit the Government to accept my view or they mine. But thinking about the purpose of this amendment, I ask the Government to undertake to submit proposals for amendments to these Elements of Crimes at some appropriate time before 2007 in whatever form and howsoever phrased as the Government wish without any element of pre-emption. If the Minister would give me an undertaking in those terms, I would assuredly be prepared to withdraw the amendment. If she wanted time to consider the matter, I should withdraw the amendment on the basis that on Third Reading there would be a definitive decision on the matter.

Baroness Scotland of Asthal

My Lords, I hope that I made it clear to the noble Lord that, as I said, the Government will, if there are inadequacies in the relevant provisions—that is contrary to our current belief—raise the matter in all appropriate fora, including any review conferences. As noble Lords know, the next such conference is likely to take place seven years hence. If we need to, we will raise the issue at that conference.

Lord Campbell of Alloway

My Lords, if the Minister receives representations from the Ministry of Defence on behalf of the forces, I assume that they will be considered by the Government. Is that right?

Baroness Scotland of Asthal

My Lords, we will obviously take into account all representations that are made to us when we consider whether the rules adequately address the difficulties. I have already said that we share the noble Lord's concerns that the rules should properly protect prisoners of war. We believe, contrary to the noble Lord, that they currently do so. If we are found not to be right about that—if inadequacies are highlighted—I assure him that we should wish to address those inadequacies and that we should do so in any and all of the appropriate fora, including the review conference that will meet in due course.

Lord Campbell of Alloway

My Lords, I am obliged to the Minister for that reply and for her great help and sympathy throughout. On the understanding that representations from the MoD would, with other representations, be taken into account, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Howell of Guildford moved Amendment No. 2:

Before Clause 1, insert the following new clause—