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Lord Lamont of Lerwick: Perhaps I may go a little wider than the amendment because I have given notice of my intention to oppose the Question, That Clause 65 stand part of the Bill. If we deal with the points more generally, it will not be necessary to have a debate on clause stand part.

I regard the concept of command responsibility as being at the heart of the Bill. I raised the issue with the noble and learned Lord on the first day of Committee. When I raised the question of its being subjective, he implied that it was not subjective and said that it could be proved directly in an illustration or might be proved structurally. It is to that response that I wish to direct my remarks.

It will not surprise the Committee if I say that I became interested in the concept of command responsibility in the case of Senator Pinochet. A number of allegations were made about what happened in various parts of the country, as well as what happened in certain police stations. However, in the proceedings before the British courts, no evidence was produced in the sense that the person in question--the accused--had any knowledge of or had issued orders in relation to those particular crimes. Reflecting on that, it seems to me that this is an extremely important point of principle in relation to crimes against humanity and war crimes.

An interesting illustration of this has arisen recently and I should be grateful if the Minister could comment on this directly. We have had the trial of the Lockerbie bombers, one of whom was found guilty while the other was acquitted. However, what was interesting about that case was that the doctrine of command responsibility did not apply. If someone planted a bomb on an aircraft in order to sabotage it and kill people because he was a member of the Libyan secret service, is it remotely conceivable that this was done without the order of the Libyan head of state? Yet the British Government have used the device of the trial as an excuse to enable them to resume diplomatic relations with Libya. If the Government really believed in the concept of command responsibility,

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then I suggest that they should have adopted a rather more robust attitude towards the resumption of diplomatic relations with Libya. It is difficult to believe that an act of that kind, if it were committed by Libyan secret service personnel, could possibility have gone ahead without the connivance and agreement of the head of state.

More generally, the whole idea of command responsibility is rather dangerous and has to be balanced against the needs of justice. It is all too easy for it to be capable of a rather expansive interpretation. Certainly, anyone who commands his troops or subordinates to commit criminal acts, or who knowingly fails to discipline his troops, or to take corrective measures, should be held criminally responsible. But one ought to secure evidence that command responsibility actually involved some explicit or implicit command. The fact that someone structurally--that was the word used by the noble and learned Lord the Attorney-General--was in charge does not make him criminally liable for the actions of his subordinates any more than it would make Mayor Rudolph Giuliani criminally responsible for the occasional abuses of the New York Police Department.

As the Attorney-General pointed out, this issue arose after the Second World War. The United States Supreme Court was asked to consider such a question in January 1946 in the case of General Tumoyuki Yamashita, the defeated commander of the Japanese forces in the Philippines. It is beyond doubt that those forces had committed numerous atrocities as the war drew to its close, but no specific evidence was produced to implicate General Yamashita in any of those events. Despite that, he was found guilty, based on what was then the novel responsibility of command responsibility. He was sentenced to hang by an American military tribunal and was then executed.

Despite the fact that he had clearly been denied the rights guaranteed by the Fifth Amendment to all defendants before the US courts, the Supreme Court upheld his conviction. However, a dissenting opinion was voiced by Mr Justice Frank Murphy, who remarked that, when it came to matters of due process, the horror, the scale, the emotion that surrounds such atrocities did not,

    "justify the abandonment of our devotion to justice in dealing with a fallen enemy commander".

He went on to argue that:

    "To conclude otherwise is to admit that the enemy has lost the battle but destroyed our ideals. Stark retribution will be free to masquerade in a cloak of false legalism".

Lord Avebury: Perhaps the noble Lord, Lord Lamont, will tell us whether in that case the general should have been aware of the circumstances of the crimes, which, if I remember rightly, continued over a period of time. Although he might not initially have been aware that the subordinates intended to commit such offences, as time went on and it became obvious to him that they were committing the offences, at which time the second leg of the statute would come

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into play, did he take such measures necessary to put an end to the crimes being committed under his command?

Lord Lamont of Lerwick: I do not know. I was not in the court room. I can only repeat what Mr Justice Murphy said about the case, and I know that others have held a similar opinion. I suggest to the Committee that, without concrete proof, there is a very real risk of injustice being done. It is very easy to say, "He should have known". It is also easy to imagine the circumstances even though one was not there. A commander might not know everything. It was certainly the opinion of Mr Justice Murphy in the United States that justice was not done. I should feel happier with this statute if more emphasis was placed on concrete proof rather than the somewhat slippery words, "should have known", which are very easy for anyone to adopt.

Earl Attlee: I remind the Committee that I have an interest. I strongly support this amendment. There is much concern in the Armed Forces, particularly at a high level, about some of the potential undesirable effects of this legislation. The fog of war clears very rapidly after the end of an incident.

I fully accept that commanders have an important role to play in these matters. They are particularly responsible for maintaining a high level of leadership and training in their units in order to minimise any possibility of operations going wrong. However, I should like to ask the Minister to what extent she expects commanders to compromise the possible success of an operation in order to ensure that no offences are committed.

Baroness Scotland of Asthal: I deal first with the point made by the noble Earl, Lord Attlee. I can reassure him that it is not proposed that commanders should compromise the success of operations. However, it is imperative that they behave honourably and properly within the confines of the law.

I understand the concerns and anxieties that have been expressed about this clause. However, I should like to allay the fears that may exist in relation to it. I appreciate the desire of noble Lords to ensure that we carefully and fully consider provisions that affect service personnel. I should like to reassure noble Lords that we have done that.

Clause 65 makes a military commander responsible for offences committed by forces under his command and control as a result of a failure to exercise proper control, and a superior responsible for offences committed by subordinates under his control, subject to specified conditions. That provision, which is taken directly from Article 28 of the ICC statute, embodies an established principle of international law, designed to reflect the hierarchical structure of disciplined forces. There is nothing new about the concept; it is known, tried and tested. In international law, the principle of command responsibility has been used in war crimes trials since Nuremberg. In this clause we

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have deliberately reproduced the language of Article 28, because it is important to us that the provisions of this subject should exactly mirror the Rome Statute.

As I have already said, we do not want a divergence between the jurisdiction of the courts of the United Kingdom and that of the ICC in relation to these crimes. We want to make absolutely sure that we can try British military personnel, including, if necessary, commanders, rather than leave room for the ICC to be able to say, "We were unable to try them" and for the ICC to take jurisdiction. I am quite sure that the Members of the Committee opposite would not like that to be the case.

Turning to the issues raised by the noble Lord, Lord Lamont, I should remind him a little of the history in relation to Lockerbie. He will recall that diplomatic relations were not broken off as a result of Lockerbie; they had already been broken off with the country in question because of the death of Yvonne Fletcher. The two incidents were not connected. Indeed, diplomatic relations is not a mark of approval or a reward for good behaviour.

The noble Lord inferred that command alone could be sufficient for a military commander to be held responsible. Article 28 and Clause 65 require more than mere command alone. They require--I paraphrase--the effective command and control where the military commander either knew or should have known that his or her forces were committing or about to commit an ICC crime, and the military commander failed to take all reasonable measures within his or her power to prevent or repress commission, or to submit the matter for investigation and prosecution.

The noble Lord raised the celebrated case of Yamashita, which involved, as he rightly said, brutal atrocities. I think there were 123 in total listed in the charges, which were committed by troops under the command of the General while he was military governor of the Philippine Islands. I think it will assist the Committee to hear what Mr Chief Justice Stone said in delivering the majority decision of the US Supreme Court on the question of command responsibility. He said:

    "The question is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specific acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result . . .

    It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose ... would largely be defeated if the commander ... could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war commanders who are to some extent responsible for their subordinates".

If I may respectfully say so, we are treading very well oiled boards that many have trodden before us. I invite the Committee to say that this matter is properly covered. The amendment as drafted would undermine

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the goal that we all have jointly in this regard and would reduce our chances of being able to take advantage of the complementarity provisions. I am sure that this is not the intention of noble Lords opposite. I hope that in the light of this assurance, the noble Lord will not press the amendment.

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