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Lord Shore of Stepney: My Lords, I am grateful to my noble and learned friend for turning his mind to this rather difficult problem. Certainly one wishes to ban war crimes but, within the memories of all of us, specifically listed are actions which were undertaken by the whole NATO alliance in defiance of what is now written into Article 8(2). It is a very serious contradiction. The fact that the Americans, for example, may be rather reluctant to ratify the convention as it is at present may be well understood. But also, surely, we agreed. We took part. We bombed civilians, we bombed the bridges and we bombed electricity plants. We did all that, not because we are aggressors and ferocious people but because it was a necessary part of liberating, as we saw it, the people of Kosovo from the oppression of Serbia. There must be some way in which this different motivation and approach can be recognised in the treaty or in the Bill. We must find a solution.

Lord Williams of Mostyn: My Lords, I profoundly disagree with what my noble friend has said. We did not act unlawfully in Kosovo. We acted on perfectly legitimate international grounds. We did not deliberately bomb civilians. It is not illegitimate in international law to bomb bridges if they are used for military purpose--and plainly they can be. It is not illegitimate to bomb railways if they are used for military purpose.

I return to the cautionary note sounded by my noble friend Lord Goldsmith about Article 8(2)(b)(iv) on page 63 of the Bill, referring to,


I stress that word--


    "launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians ... which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".

That is a well-known and well-understood concept in international law.

I repudiate as firmly as I can that the British Government or our Armed Forces were acting unlawfully in Kosovo in terms of international law. I do not believe it to be correct. The Government have taken the most careful advice about the legality of such actions and the Armed Forces have similarly taken their own advice.

Lord Campbell of Alloway: My Lords, I merely seek information in view of the previous exchange. I am not returning to the matter of Kosovo but deal merely with a point of construction as to the words used. Is the noble and learned Lord saying that they originate from the 1957 Geneva Convention and that, therefore, they

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are part of international law and we must accept them today in our modern concept of war? Is that the position?

Lord Williams of Mostyn: My Lords, that is what I am saying, except that I include for completeness the 1949 convention, which is set out at page 62 of the Bill under the first definition of "war crimes". The noble Lord is right. The world has changed. We have international obligations. It is useful, if I may say so as respectfully and gently as I may, occasionally to remind ourselves of what they are. In the context of the question put by the noble Lord, Lord Blaker, which fits in here, in his example the protection is that given to those who are protected by the Geneva Convention: in other words, protection for those who are specified--as, for instance, civilians--by virtue of their having particular protection under the Geneva Convention.

Lord Shore of Stepney: My Lords, I am grateful to my noble and learned friend for giving way. I shall be brief. To make it absolutely clear, I do not for a moment consider that our actions justify the charge against us of committing war crimes. But how do we defend ourselves from accusations by those who are not friendly to us that we have committed war crimes, given the range of actions that we are obliged to take for military purposes?

Lord Williams of Mostyn: My Lords, we do so without the slightest difficulty; indeed I should be happy to do so if called upon, as I may be. The fact is that we studied carefully the ambit of our international legal obligations. The fact is that we have the right in international law to prevent overwhelming humanitarian catastrophe. I assert that on behalf of the Government. I would put it forward to any court that 700,000 or 800,000 people being driven from their homes, in the greatest act of mass forced deportation since the end of the last war, is an overwhelming humanitarian catastrophe requiring action. It is true that some civilians were killed. Did we set about the deliberate murder of civilians? No, we did not. Did we sometimes make errors? Yes, we did--but those errors were made in a nobler cause and I believe that history will applaud us.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Am I right in thinking that Justice Richard Goldstone's independent commission appointed by the United Nations to look into the matter concluded that there was a technical problem about the absence of authorisation by the Security Council under the charter, but that so far as the merits were concerned what had happened in Kosovo was entirely justifiable and that there might be a need to amend the UN charter in that respect; but that so far as any other matter was concerned, what had been done was in accordance with international law? That is my recollection; I wonder whether I am right.

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Lord Williams of Mostyn: My Lords, I do recollect fully the text of what Judge Goldstone said. However, I am content in my view that we were lawfully justified in what we did--bearing in mind that if one carries out such activity mistakes will sometimes happen. No one regrets those mistakes more than I. But, qualitatively and legally, it is wholly different to make a genuine error--bombing, firing and shelling from a distance is utterly different from the wilful, monstrous ethnic cleansing that was carried out on defenceless people. To deviate for a moment from the purpose of the Bill, we had no selfish interest there: we had no investments, oil wells or installations to protect. We behaved properly, decently and lawfully.

Lord Howell of Guildford: My Lords, I admire the robust way in which the noble and learned Lord defends the right and lawful actions of this nation in our involvement in Kosovo. I agree with him 100 per cent. But is that the point? Is not the question whether other state parties who may take a different view hold us in the same admiration for what we did? Might they not interpret what we did in the name of liberty and right as aggressive and damaging to their interests and their national viewpoint?

Lord Williams of Mostyn: My Lords, that may well be so--and where parties disagree, even for ignoble motives, the courts then decide. I should be happy to argue the case in any domestic court; Britain will be a state party and we should be willing and able to examine such allegations. I should also have no difficulty in arguing the point in an international court. It is not simply a matter of presentation but of whether what was done was right. I entirely agree with the noble Lord. Did we do the right thing? Did we behave lawfully? I believe that those two short questions offer their own internal reply.

The noble Lord, Lord Clinton-Davies, asked a number of specific questions about legal representation. He is right to make those inquiries. The statute makes provision for legal aid to be provided to suspects being prosecuted if they do not have sufficient means to pay for legal assistance. That is one of the rights recognised specifically in Articles 55 and 67 of the statute. As it is in the statute, and as the Bill gives effect to the statute, no specific reference to legal aid is necessary.

The noble Lord asked detailed questions about ratification. Sixty signatures will be needed before the court can be established. The NGO coalition for the International Criminal Court, to which I readily pay tribute, has set July 2002 as its goal. Eight of the European Union countries have ratified; the other six are in the process of doing so. In terms of signatures, four of the permanent five members of the Security Council have signed; all members of NATO apart from Turkey have signed and, as I said, all of the European Union nations.

The noble Lord, Lord Clinton-Davies, asked about the definition of "aggression". That has not been arrived at. Rather than spend further years attempting to produce an agreed definition, we decided to proceed

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at this stage. If there is agreement about the definition of "aggression" as a crime in international law, it can become a crime only by virtue of this statute when the statute itself is amended, which cannot happen for seven years.

The noble Lord also asked about the report. I can tell him that it was placed in the Library of the House on Friday 12th January. I am sorry if a copy of it was not readily available for him. As to the question of expert witnesses, we have not, in practice, found any difficulty in getting many expert witnesses to attend the Yugoslav tribunal or the Rwandan tribunal. Therefore, we have not considered that the power would be required.

I was grateful for the support expressed by the noble Viscount, Lord Waverley. I believe that I have dealt with the specific questions posed by the noble Lord, Lord Campbell of Alloway because, in a sense, they intermingled with topics to which I have already responded.

My noble and learned friend Lord Archer asked about universal jurisdiction, as did other speakers. My noble friend Lord Goldsmith was quite right to say that we have universal jurisdiction elsewhere in our domestic jurisprudence. However, we have had that in the past when it was part and parcel of an international agreement. So noble Lords are quite right: we have jurisdiction over torture because it is part of the convention against torture. Similarly, we have universal jurisdiction over grave breaches of the Geneva Conventions because that is an obligation of such conventions.

As I believe all your Lordships know, there were very lengthy negotiations leading up to the Rome Statute but they did not deal with universal jurisdiction. The statute does not require universal jurisdiction; that is why it is absent from the Bill. I give way.


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