International Criminal Court Bill

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Mrs. Ellman: Will the hon. Gentleman make clear where his remarks are leading? Earlier, he agreed that the proposed ICC would interpret the matters to which he now draws our attention—whether crimes constitute war crimes in given circumstances. However, he appears to be opposed to including whole categories of possible crimes in the Bill. Is he fundamentally opposed to essential parts of the Bill, and therefore to essential parts of the proposed ICC?

Mr. Howarth: I am sorry that the hon. Lady takes such a simplistic view. I am genuinely trying to do what I said at the outset, use probing amendments to illustrate my concerns about how the incorporation of the Bill's provisions into our law would affect the way in which our courts work. I do not have much of a problem with that, but I wanted to highlight the fact that behind the provisions are the identical provisions of the statute, which will govern the ICC. Although I am content that our courts will interpret situations in a sensible fashion, I have raised doubts about transferring so much power into the hands of the ICC, which could prosecute our battlefield commanders even though we had concluded that no international war crime had been committed by our troops.

That is the dilemma that I pose. Whether I support the whole idea is by the by. The Government must say whether they have considered such possible scenarios, how they would react to them, and whether they have the same concern as my hon. Friends and I about the potential impact on our armed forces.

Mr. Mark Hendrick (Preston) rose—

Mr. Desmond Browne (Kilmarnock and Loudoun) rose—

Mr. Howarth: I give way to the hon. Member for Preston (Mr. Hendrick) because he rose to his feet more quickly.

Mr. Hendrick: I take that as a compliment.

Would the hon. Gentleman have the same concerns if a British ship had been sailing away from an exclusion zone and 300 Royal Navy personnel had died; or if, during a conflict, the headquarters of the BBC were blown up, causing suffering to hundreds of British journalists and perhaps military personnel gathering intelligence? Would he call for the rogue state involved to be hauled before a court such as the ICC?

Mr. Howarth: The hon. Gentleman does not half tempt me. The idea of the BBC being blown up is far too attractive for some of us in opposition to resist—I take it that the hon. Gentleman is referring to the Blair broadcasting corporation. However, I do not want my levity to be misconstrued. I was paying tribute to the hon. Gentleman's fitness when I commented on the speed with which he jumped up—

Mr. Browne rose—

Mr. Howarth: That was a bit slow.

We are discussing serious matters. I would regard the events described by the hon. Member for Preston as a hostile action, but war is war and fine judgments have to be made. It is difficult for those of us and for members of the public who have not served in the armed forces to understand that people join Her Majesty's forces in the full knowledge that it is not like joining Marks & Spencer or BP—such organisations do not call upon their personnel to lay down their lives. The hon. Gentleman will have heard my hon. Friend the Member for Reigate (Mr. Blunt) say that when he was sitting on the front line, at the foot of the iron curtain, at the very pivot of the massive tension between east and west, he knew that he was in line to be wiped out in the first wave. People who join the armed forces understand the risks that they run.

Mr. Hendrick: I speak as a former Ministry of Defence worker who trained at DERA, which has been mentioned and which used to be called the Royal Signals and Radar Establishment. I had regular contact with and worked alongside many military personnel there, so I understand those comments. However, the hon. Gentleman has not answered my question. Would he call for the head of the rogue state I described to be brought before a court—the ICC or any other court—and would he do the same if some other broadcasting station, to which he might be more sympathetic, were attacked?

Mr. Howarth: It would depend on how much that action was a factor in the war as a whole. I am trying express the reservations that I hold, which have been expressed to me by members of our forces. The Minister will accept that the way in which our forces prosecute the tasks laid upon them is constrained; nevertheless, as human beings they could, if faced with a difficult situation, be guilty of some atrocity. Although I do think that we are rather splendid, I do not suggest that we are such a superior people that none of us is capable of committing such a crime—after all, we have prisons full of criminals. I have grave reservations. Rather than people being called to account at a war tribunal, it would be better for them to be dealt with by our armed forces in the course of the battle.

Mr. Browne: I apologise to the hon. Gentleman for not being present throughout his remarks—I had to answer an important message—but I suspect that I have heard the argument before in this Committee. None the less, my question is genuine. How many of the provisions of the amendments are already part of our domestic law? The part of the Bill in which they fall relates to our domestic law.

I know what the hon. Gentleman wants to achieve, but if he gets his way with the amendments, probing or otherwise, the one thing that we can guarantee is that the only jurisdiction over the alleged offences will be that which rests with the ICC, because he will have taken them out of domestic law if they are not incorporated in it in any other way. The amendments are not the appropriate vehicle for the discussion that the hon. Gentleman wishes to have—but that may be a matter for you, Mr. Cook.

Mr. Howarth: I expect that the hon. Gentleman was taking a message from Mr. Alastair Campbell. The Prime Minister does all the time.

The hon. Gentleman makes an interesting point. I accept that the offences are being incorporated into United Kingdom law and will therefore by tried by UK law, but that is being done to give effect to the statute. That is what we have been told all along.

Mr. Battle: The hon. Gentleman needs to be clear about the subject of part V of the Bill, which is headed ``Offences under domestic law''. We are not simply accepting the statute, but addressing our own law.

Mr. Howarth: I am grateful to the Minister, but it is clear that the offences are being put into our domestic law to reflect the statute.

Mr. Browne: Perhaps I can assist the hon. Gentleman, although I am not a Minister and he will want to hear confirmation from someone on the Front Bench. As I understand it, we are ensuring that the offences are part of our domestic law so that we can do exactly what he wants us to do: accept our responsibility to develop jurisprudence in relation to them and, if necessary, prosecute our own people in the domestic courts. We can—I shall say this slowly—ratify the statute without part V. The hon. Gentleman's argument for the amendment is self-defeating.

Mr. Howarth: I am grateful to the honourable lawyer for giving me some guidance. I accept the principle of complementarity. Nevertheless, if we are to incorporate the offences into our domestic law, it would be sensible to guard against future ambiguity by making it clear that we want the courts to err on the side of understanding our troops' concerns.

Amendment No. 34 would delete article 8.2(b)(v), set out in schedule 8, which covers:

    ``Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives''.

If, for example, an undefended village were harbouring terrorists, where would a commander who attacked the village stand in relation to that provision of our domestic law? No one would suggest that the terrorists were defending such villages or buildings; rather, we would say that they were using them as a shield. Would our commanders face action as a result of attacking? In the attack on the command centre in Baghdad during the Gulf war, many civilian casualties occurred, but it was thought to be an important communications centre and therefore deemed a military target. If the offence were incorporated into our domestic law, would we be satisfied that the courts would take the view that that was a legitimate target, or, indeed, that the collateral damage caused was not ``clearly excessive'', in the words of sub-sub-paragraph (iv)?

3.15 pm

My final example is that of Dresden during the second world war. I spent some of my formative years in Hamburg in Germany. When I first went to Dresden in 1956, I saw the devastation that had been caused to the city. Area bombing—one description that is given to the wholesale bombing of cities—was the subject of an argument that raged after the second world war and continues today. A very interesting article on Sir Arthur Harris—commander of Bomber Command during the second world war and known to some as ``Bomber'' Harris—entitled ``Exploding the Myths'' was published in the February-March edition of Legion, the Royal British Legion magazine. Hamburg neighbours to whom my parents spoke were in no doubt that the German people realised the damage that was being inflicted on our cities and the damage that Hitler's Government were doing to their own people only after German city centres were bombed and substantial civilian fatalities were incurred.

The point made by the hon. Member for Kilmarnock and Loudoun (Mr. Browne) was a fair one—even if he was a little slow in getting up—but will area bombing be outlawed for ever if we incorporate the provision into our domestic law? The United States air force 1,000 bomber raid on Berlin on 3 February 1945 resulted in the deaths of 25,000 Berliners. Today, that might well be considered excessive ``incidental damage''. I am sorry to use such phrases and I do not mean to dismiss the loss of 25,000 lives, but to hamper our people so that they cannot prosecute a battle in that way would be a very serious matter. To do so could make it difficult to defend ourselves or our interests on a wider front.

It is part of the argument about the role of Bomber Command—I know that you take great interest in these matters, Mr. Cook—Albert Speer, who was in charge of German industrial production from 1942, gainsaid critics who said that Bomber Command was ineffective. According to the article to which I have referred, he said that

    ``the strategic bomber was the cause of all our setbacks''

and that the failure to stop the bombers was

    ``the greatest lost battle on the German side''.

Are we enacting domestic legislation that would inhibit any future British Government carrying out such action? It might be the collective view of the Government of the day, supported by the will of the people, that such action was the lesser evil and the only available option.

A future British Government might decide that bombing of the type that took place in Nagasaki and Hiroshima was necessary to destroy a great evil. Would the legislation inhibit such bombing? Huge damage was done to those cities, but which of the two evils is greater? Group Captain Sir Leonard Cheshire, who was on board the United States bomber that dropped that awful bomb on Hiroshima, went on to do fantastic charitable works and was a great and respected figure in the world of charity in this country. The bombing of Hiroshima was clearly a source of great anguish to him. None the less, it was felt that it was the only way to bring that war to an end and prevent a greater evil.

 
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