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Lord Howell of Guildford: The noble Baroness argues that we are treading well oiled boards and refers to war crimes trials in the past. Reference is often made in this context to the Nuremberg trials. Of course, the Nuremberg trials were what some people call "victor justice". They were, indeed, trials of the most horrific crimes committed by and under the command of some of the people who were charged at Nuremberg, but it was the justice of the winning side against those who had lost the war. That has applied to a number of other war trials since.The noble Baroness says that these arguments are "well oiled boards", and that there is nothing new that should concern us--

9.30 p.m.

Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. Do I understand him to say that the principles of international justice that were formulated by the international military tribunal in Nuremberg for the trial of Nazi war criminals were not generally recognised principles in all civilised states, but that they were somehow victor's justice and were therefore partial?

Lord Howell of Guildford: No, the noble Lord is not to understand that. He is to understand that some people have made that comment and I am repeating it. That is obviously not the general view.

Lord Lamont of Lerwick: Will my noble friend allow me to intervene? Will he make the point to the noble Lord, Lord Lester, that the Nuremberg authorities and the Nuremberg trials were not an international court in any sense; they were the duly constituted sovereign authority of Germany?

Lord Howell of Guildford: I am grateful to my noble friend for elucidating that matter.

To say there is "nothing new" in the situation that we are addressing tends to bypass two elements that are indeed new. The first is that we are introducing new crimes on to the statute book of the United Kingdom. The second is that, should the Bill become law and should the appropriate number of countries ratify the Rome Statute, we shall bring into being a permanent court which will be ready to step in.

I totally accept the need to have in place the machinery to hunt down and bring to justice the butchers and perpetrators of atrocities around the world who have gone free. That will be a difficult enough task. However, the new situation is not the same as that of past war trials, whatever the debate about their status. We should be blind not to recognise that new fears and worries need to be allayed in the ranks of the military and among those who believe that they carry out difficult tasks. In the heat of war things

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are done which may be profoundly regrettable. Now, we should be entering into a complicated and highly subjective debate about situations involving the tragic death of civilians, or an over-reaction in terms of violence against violence or some counter-measure against snipers who have slaughtered a soldier standing beside other soldiers. Tempers can fray.

In a mild, modest and inadequate sense, I have talked to soldiers in Northern Ireland who have just lost a companion, slaughtered by a sniper. The need for restraint is very great indeed. The feeling of these lads is that one of their people has been unnecessarily cut down, and the revenge impulse is very strong. It can be contained, but sadly that does not always happen. In such circumstances, where does the commander stand? Is he or she now to be indicted if something terrible is done, or can it be handled through the processes of the court martial? All these questions are in the minds of the military. To ignore them or to say that there is nothing new here is not the right way to proceed in terms of the reassurance that is needed.

If the reply given by the noble Baroness is all that she can offer at this time, we shall certainly want to return to the matter on Report. We have not received the assurance that we need in order to see not only that the guilty are brought to justice, but that the innocent and those who are servants of the state are properly protected. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 agreed to.

Lord Howell of Guildford moved Amendment No. 127:

    After Clause 66, insert the following new clause--


(" .--(1) A person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for survival of the person, or another person, or property which is essential for accomplishing a military mission, when he acts against an imminent and unlawful use of force in a manner proportionate to the degree of danger to that person, or the other person, or property protected.
(2) A person may rely on the above defence if he can establish, on the balance of probabilities, that he was acting as part of a defensive operation and/or there was a necessity to act in this way.
(3) It shall be a defence, to any allegation under the ICC Statute, that the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been"
(a) caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person, or another person, and
(b) the person acts necessarily and reasonably to avoid this threat.").

The noble Lord said: This amendment is also moved with the intentions and actions of our Armed Forces very much in mind. The purpose of the amendment is to create a defence against what would otherwise be an

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unlawful use of force, or one that might be alleged to be unlawful. It would allow a person to defend himself, or others, or property, if it were,

    "essential for accomplishing a military mission".

There are many obvious examples of this that we could list. Subsection (2) of the amendment sets out the defence; namely, on the balance of probabilities, which, as I understand it, is the test for any defence in criminal law.

Subsection (3) of the amendment also creates a defence as regards an allegation under the ICC statute regarding a person's conduct. The defence of "duress" from imminent death or imminent serious harm is created. Thereafter, paragraph (b) refers to a person acting,

    "necessarily and reasonably to avoid this threat".

As I said, we have the concerns of the Armed Forces very much in mind in this amendment. It cannot be right not to have available the defence of defending oneself, or others, in what would otherwise be judged by the ICC as an unlawful use of force. I beg to move.

Lord Lester of Herne Hill: The Bill does not incorporate the definitions in the ICC statute of "self-defence" or of "duress" into domestic criminal law. As I understand it, that is left to English law, which is probably a wise judgment. It is important to ensure that the Bill does not produce definitions of "self-defence" or of "duress" that are inconsistent on their face with what is contained in Article 31 of the statute.

By way of these amendments, the Conservative Front Bench has managed to secure a double violation of the definitions in Article 31. In the first place, when "self- defence" is defined in the amendment, the words that one finds in the tail-piece of Article 31(1)(c) are omitted. Those words read:

    "The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph".

The noble and learned Lord the Attorney-General will correct me if I am wrong, but my view is that the words of Article 31.1.(c) are exactly the same as the position under English law as it stands; in other words, a person could not successfully plead self-defence merely because he was involved in,

    "a defensive operation conducted by forces".

Therefore, if I am right, by omitting those words from the definition in the amendment, there is a conflict both with traditional English criminal law and also with the definition in the ICC statute.

The Conservatives then make the same mistake when they come to define the word "duress". Again, the definition falls short of what the statute defines in Article 31 because the statute's defence is subject to a limitation that is ignored by the amendment. The statute's defence can only be exercised where,

    "the person does not intend to cause greater harm than the one sought to be avoided"--

a kind of principle of proportionality. Again, unless I am much mistaken, that concept would be well recognised in English criminal law in relation to the defence of duress. Therefore, both because it is

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inconsistent with the ICC statute and also because it is not on good "speaking terms" with traditional English criminal law on the defence of self-defence and on that of duress, we oppose these amendments.

Baroness Scotland of Asthal: I say once again that I understand the nature of the concern expressed by the noble Lord, Lord Howell. I also understand that by seeking to introduce two defences to the allegation that an ICC crime has been committed, he does so with the purpose of being helpful.

However, I reassure him by saying that the defences which are currently available under our law will also be available in cases where there is an allegation that an ICC crime has been committed. The noble Lord, Lord Lester, is right to say that these issues are covered by our law. This is made possible by Clause 56(1) of the ICC Bill, which applies the,

    "principles of the law of England and Wales",


    "determining whether an offence under this Part has been committed".

I emphasise that it imports or implies the whole of the principles of the laws in England and Wales. I hope that the Committee will agree that the matter is more conveniently expressed in that way than annexed to any Bill of this kind in volumes.

In applying the principles of the law, defences both statutory and at common law are invoked. Should a person find himself or herself accused of an ICC crime resulting from a situation described in subsections (1) and (2) of the amendment, a possible defence could be provided under the common law or by Section 3 of the Criminal Law Act 1967, where reasonable force is used.

In respect of the proposed subsection (3), the common law recognises the availability of defence of duress which may be applied by our courts in certain circumstances, although not in relation to murder, as the Committee will know. To incorporate these amendments would run the risk of excluding other common law defences. I am sure that Members of the Committee opposite do not want that. The defences under our own law are the best defences for individuals before our courts.

I also note that the proposed amendment departs in certain serious respects from the provisions of the statute that have already been referred to by the noble Lord, Lord Lester. In sharp contrast to Article 31 of the statute, the amendment would allow the person a defence if he can establish that he was acting as part of a defensive operation. The noble Lord, Lord Lester, has already outlined that point.

Subsection (3) of the proposed amendment reflects part of Article 31 of the statute. As I believe the noble Lord, Lord Lester, also made clear, it does not include certain important elements of that provision. I shall not repeat them as I believe that the noble Lord has already referred to them.

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If we incorporate these defences in terms which would allow an acquittal where the ICC would convict, we run the risk that the ICC would hold that our courts had not tried a suspect for a statute offence, and thus would take jurisdiction itself; that is, we would not be able to take advantage of the principle of complementarity. We are confident that the defences available in the laws of England and Wales are applicable and should be those which British citizens who are tried on these cases would be able to take advantage of. We would not like to see them restricted or confined in the way in which the amendment suggests, although we absolutely understand the purpose that the noble Lord sought to achieve by so amending.

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