I do not advocate such a declaration. I shall come to the specific declaration that I advocate when I deal with the main amendments that we want to make to the Bill.
I think I can take it from what the Foreign Secretary says that he proposes that the Government will not enter any declarations.
We have none in mind.
We can take that as a definitive statement that the Government expect the Rome statute to remain without reservations, which is effectively what declarations are. It is helpful to have that confirmed. I think that the hon. Member for Thurrock (Mr. Mackinlay) wanted to intervene.
We want to know what the right hon. Gentleman's concerns are.
The hon. Gentleman has contained his curiosity very well.
If the right hon. Gentleman will allow me, I will clarify the number of declarations. As I said,
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only two countries have made a statement that queries the legal effect of the statute. The right hon. Gentleman is correct to say that other countries have made declarations; for example, the Austrian declaration to which he referred states that any documents making a request of the Government of Austria shall be in German. I would not rule out the possibility of our making such a declaration, but it has nothing to do with the terms of the statute.
To satisfy the curiosity of the hon. Member for Thurrock, I shall move on to our second concern, which is more specific but very deep, and I suspect that it lies behind the concerns of the United States Administration. I refer to the position of the armed forces.
We believe that the Bill does not give our armed forces the protection that they need. War by its very nature is chaotic. There are many examples of events in war in which dutiful, decent officers and men obeyed orders that unintentionally led to the loss of civilian life. There were tragic examples of that during the Kosovo bombings, when bombing orders led to the deaths of civilians. There was also the question of whether it was right to offer protection to the people of Kosovo while refusing to allow allied planes to fly at lower altitudes, which might have reduced the risk to civilians.
Of course, that does not mean that it would be right to accuse the Foreign Secretary and the Prime Minister of being war criminals, as some in Serbia have argued. Nor, of course, does it mean that Lady Thatcher was a war criminal when she ordered the retaking of the Falklands. More importantly, perhaps, it does not mean that the pilots who flew on the missions were guilty of war crimes. It would be wrong, and the British people believe that it would be wrong, if British troops were subjected to politically motivated prosecutions or threats of prosecution for carrying out their duties in distant foreign lands. Yet there is a belief that such a threat exists.
Mr. Nick Hawkins (Surrey Heath):
Does my right hon. Friend accept that those of us who represent military constituencies, as he knows I do, share the concerns expressed by the Chief of the Defence Staff when he gave evidence to the Select Committee on the Armed Forces Bill? He made it clear that although he had been advised that prosecution of a junior officer was unlikely, he could not feel that the word "unlikely" filled him with much confidence. Does my right hon. Friend agree with the Chief of the Defence Staff, as I do?
I am coming to precisely that point, which is of great importance. The Foreign Secretary and other Ministers can offer all the bland reassurances that we have heard from them, but the reality is that soldiers, sailors and airmen will take seriously the doubts expressed by their military leaders and will, frankly, find them more persuasive than the reassurances of politicians of any colour. These are not fanciful concerns, but Ministers have sought glibly to brush them aside, giving bland reassurances that have failed to allay them.
Clause 66, which deals with the mental element or test that I mentioned earlier, says:
"In interpreting and applying the provisions . . . the court shall take into account any relevant judgment or decision of the ICC."
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Does my right hon. Friend agree that we need to probe that point extremely carefully as the Bill proceeds through the House, because that provision will probably be incompatible with the sort of mens rea test that we are used to in the United Kingdom?
We have specific concerns about the mental intent element allowed for in the statute for some of the offences. If my hon. Friend wants to pursue those points later in the debate or in Committee, he will be doing the House a service.
On our specific concerns about the armed forces, it is helpful to consider recent exchanges. On 7 March, the former NATO commander Admiral Eberle said:
"It is vital that commanders in the field should not be put in a position where they are concerned as to what is right and what is wrong at the expense of risking their own lives and those of the men they command."
On the same day, two daily newspapers, The Daily Telegraph
and The Guardian
, carried on their front pages the concerns of several senior military officers about the Bill. The Daily Telegraph
reported the concerns of senior officers, who said that
"commanders faced either being accused of war crimes or changing the rules of engagement to the point where the enemy could be certain of 'getting his strike in first'."
It went to on to say:
"The International Criminal Court Bill adds to concerns expressed by the new Chief of Defence Staff, Admiral Sir Michael Boyce--and his predecessor, Gen Sir Charles Guthrie--that litigation . . . will diminish capability."
reported other officers' concerns, saying:
"'Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals', a senior defence source warned yesterday. He added that ministers were 'very aware' of such a prospect. He said he 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 said that future rules of engagement could, for instance, prevent a British warship from attacking a hostile vessel until it was too late."
On Report in the other place, my noble Friend Lord Howell read out some of those reports and voiced the concerns of senior members of the armed forces about the Bill. He said:
"Legitimate anxieties have been aired recently in the newspapers by members of the Armed Forces."--[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 347.]
The Government's response was very interesting. Baroness Scotland, the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, said:
"Although there has been much vaunting in the press of the concerns of the Armed Forces, the MoD has been assiduous in its duties--it has crawled all over the Rome Statute and the Bill and it is content, as are the higher echelons of each of the services."
It is important to note that those words were spoken on 8 March. Baroness Scotland continued:
"They said that they are satisfied that the legislation should not lay the Armed Forces open to prosecution when they are undertaking their legitimate duties as directed by a democratically elected
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government. We all know that we can get excited about press stories and how much reliance we put on statements that we read."--[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 433.]
Mr. Desmond Browne (Kilmarnock and Loudoun):
Will the right hon. Gentleman give way?
I shall finish this point first, because it is central to the matter.
As my hon. Friend the Member for Surrey Heath (Mr. Hawkins) said, the concerns had been expressed by Admiral Boyce, the recently appointed Chief of Defence Staff, in evidence to a Committee of the House only two days before Baroness Scotland was speaking. The transcript of his remarks only became available some little time later. The House should pay attention to what he said. He was asked about concerns relating to the Bill, and he said:
"I think we need to be very careful indeed that when the Bill is taken through Parliament, we do not put ourselves in a situation where a junior person carrying out orders which he believes to be entirely proper can subsequently find himself in front of the International Criminal Court. So far I have been told that this is unlikely to happen."
Probed a little further, he said:
The Minister of State, Foreign and Commonwealth Office (Mr. John Battle)
I shall finish the sentence if the Minister wants me to, because the national court would have the opportunity to investigate the case if it were pointed in that direction by the ICC. That is simply an explanation, and I accept that it may be highly unlikely that that eventuality would occur, but when the Chief of the Defence Staff was probed a little further on whether that assurance gave him sufficient comfort, he said:
"I cannot say that 'unlikely' fills me with huge confidence. I would be much happier with a completely unequivocal statement, but I guess that is probably the best I will get."