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Lord Elton: My Lords, as the Government Chief Whip is present, I wonder whether it is proper to ask whether the very important issue raised by the noble and learned Lord could be referred to the Procedure Committee.

Lord Carter: My Lords, as I understand it, this is not a matter for the Procedure Committee as such. The team involved in the statute law electronic database--I believe that that is what it is called--has done a great deal of work on the issue and that work is not yet complete. If it is of any interest to your Lordships, I asked the same question about eight years ago when I was in opposition.

Baroness Hollis of Heigham: My Lords, I wonder whether the noble Lord, Lord Elton, was able to give my noble friend a response.

I think that all your Lordships agree that we have made a number of important changes to the Bill, in particular on the circumstances under which

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information may be obtained under the powers in Clauses 1 and 2 and on the code of practice. Almost everyone who has taken part in the debate--although that is not a very large number of people--particularly from the Opposition Benches, owns an amendment or a change in the Bill. It is truly a House of Lords Bill, not just a government Bill.

I thank your Lordships for your unfailing courtesy and good humour and for our informed debates. Like others, I pay a particular tribute to my noble friend Lord Grabiner for his excellent report, which was the genesis of the measures in the Bill, and for his many interventions to share his expertise in our debates.

The noble and learned Lord, Lord Brightman, has made a good point, to which my noble friend the Chief Whip has responded. I am grateful to the noble Earl, Lord Russell, for explaining that we had recognised the problem and done our best to overcome it. It is a bigger problem than the Bill can handle. We shall need consolidating legislation eventually. The electronic database of statute law that my noble friend referred to may well address those problems in future.

I am delighted that the Bill has gone through without Division, though with substantive change. I hope that it is treated in the same conciliatory and positive way in the other place.

On Question, Bill passed, and sent to the Commons.

International Criminal Court Bill [H.L.]

5.4 p.m.

Report received.

Lord Campbell of Alloway moved Amendment No. 1:


    Before Clause 1, insert the following new clause--

PROTECTION AND SAFEGUARD OF PRISONERS OF WAR

(" . This Act shall have effect subject to the making of an interpretative statement on ratification of the ICC Statute by Her Majesty's Government that measures for the protection and safeguard of Prisoners of War under Article 8 taken in armed conflict of an international character, is to be reviewed by members of the Assembly of State Parties for redefinition and clarification.").

The noble Lord said: My Lords, the amendment is concerned with war crimes committed against prisoners of war taken in armed conflict, as defined by the provisions of Article 8 of the ICC Statute, which the Bill will incorporate into our domestic law. There is no precedent for delaying a Bill after enactment as proposed by the amendment, which has been accepted by the Table. The procedure of your Lordships' House is a matter for the House and has never been inhibited by precedent.

The amendment would commit the Government to making an interpretative statement on ratification in the broad terms of principle proposed. Later on, they would have to make a detailed proposal, which, if accepted, would be implemented by the Assembly of State Parties under the special regime on the

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interpretation and application of Articles 6 to 8 contained in Article 9. Those articles are set out in Schedule 8. Article 9, which makes provision for the special regime, is on page 66 of the Bill.

Under Article 9.1, the preparatory commission for the ICC has already prepared a draft text of proposals to assist the court in the interpretation and application of Article 8. The document is called Draft Text of Elements of Crimes and is dated 6th July 2000. When that document has been approved by two thirds of the members of the Assembly of State Parties, it will become the substantive instrument on the interpretation and application of Article 8.

The amendment would commit the Government to making proposals for amendments to the Elements of Crimes document, covered under Article 9.2. The draft text would take effect after consideration by the preparatory commission and approval by a two-thirds majority in the assembly. It would have to be submitted some time before 2007, when the next meeting of the assembly would be convened for that purpose.

The form and content of such proposals for amendment, which the Government would be committed to making and on which they would no doubt wish to consult, is in no way pre-empted by the amendment. It may not be apparent on the face of the Bill, but our domestic courts will apply Article 8 as interpreted by the Elements of Crime document, as amended from time to time.

In a letter of 26th February, the noble Baroness, Lady Scotland of Asthal, offered to bring the issue of measures of safeguard and protection for prisoners of war to a review committee, which I assumed to be the meeting of the assembly in 2007, if there was general concern.

At this stage, I should like to pay tribute and express my personal gratitude to the noble Baroness, the noble and learned Lord, Lord Williams of Mostyn, and the officials of the Foreign and Commonwealth Office and the Home Office for the help that they have given me in this affair. Without it, it would have been very difficult for me to make sense of these submissions, if they make sense at all.

The spirit of that offer of an undertaking is much appreciated. However, it does not deal with the essence of the problem. For reasons that are apparent--if I may, I shall refer to those in a moment--concern already exists in relation to the Elements of Crimes, the draft of which, dated 6th July, has been approved. Curiously enough, a concern, which will become apparent later, already exists on the part of the forces with regard to the subject of prisoners of war. It was referred to in the papers over the past two days.

If the Government are unwilling to make an interpretative statement on ratification, an undertaking will be sought. It would be wholly effective and very simple to apply. In terms, it would propose amendments to the Elements of Crimes under Article 9.2 in whatever form or content the Government may choose. That would be wholly

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sufficient and wholly relevant, and would deal with the present matters of concern. On that basis, there would be no need for the Bill to be amended.

The justification for this amendment and for seeking such an undertaking is that there is a need for review by the assembly under Article 8 as to the redefinition and clarification as it stands and as it shall be interpreted by the Elements of Crimes of 6th July.

First, there is a disparity of provision--I shall come to the detail later--as between armed conflict which is of an international character and that which is not of an international character. Under the current conditions of armed conflict, there is a need for redefinition and clarification. There is a concern that account must be taken of the new dimension of armed conflict--that which is unmanned, controlled by robotics, sensors, lasers, radar, or what have you--in which people will always be taken prisoner. There is no proposal to reconvene the high contracting parties to consider amendments to the Geneva Conventions, which are also subservient to a similar ambiguity.

One finds a veritable cat's cradle of complexity under Article 8 on page 65 of the Bill and, in particular, although your Lordships do not have the document, on pages 21 and 23 of the draft Elements of Crimes document. In sub-paragraphs (v) and (vi) of Article 8.2(a) on page 63 of the Bill, one will find the only two provisions applicable to prisoners of war who are taken in armed conflict of an international character.

That is further defined at page 21 of the Elements of Crimes as referable to "armed conflict" and "international armed conflict", as if such were distinct concepts. If, as I understand it, according to public international law, armed conflict of an international character is dependent upon having been heralded by a formal declaration of war between nation states, does that govern this disparate further definition?

Again, Article 8.2(b) on the same page of the Bill appears to be of general application concerning serious violations of the law and customs of war in "international armed conflict". In Article 8.2(b)(xxi) on page 65, outrages on personal dignity, humiliating and degrading treatment are described, but there is no reference to prisoners of war as such.

Finally, at page 33 of the Elements of Crimes document, there is express reference to armed conflict as if it were distinct from international armed conflict. One will see that Article 8.2(c) on page 65 of the Bill is also of general application and applies only to armed conflict which is not of an international character. Again, there is no reference to prisoners of war as such. I shall not suggest that noble Lords should look at pages 37 to 48 of the draft text of the Elements of Crimes document; in any case, they will not have a copy of it.

This matter is incredibly complex and raises a question which requires clarification. Without seeking an answer, one may well ask: what is the concept of armed conflict, as distinct from armed conflict of an international character, as used in Article 8 and interpreted by the draft text? Which provisions apply when airmen are shot down when operating under the

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assumed authority of the United Nations or when serving under the aegis of NATO in a rapid reaction force and are taken prisoner?

Albeit that the ICC has jurisdiction to develop its own body of jurisprudence, is there not an overwhelming case for review with a view to redefinition and clarification? Is not the initiative proposed by this amendment--to seek to amend the Elements of Crimes text--worthy of being taken by our Government? Would not that be of assistance not only to the ICC but to our own courts--the protecting power--the prisoners and diplomatic intervention on their behalf?

I thank the national ex-prisoners of war association for its support. It has the merit of general ongoing permanency, which members of the Colditz Association, such as I, are unable to share. I have spoken to no one, save those in time to come, who would reap the benefits. I beg to move.

5.15 p.m.

Lord Archer of Sandwell: My Lords, I believe that we all appreciate the concerns which underlie the noble Lord's amendment, which he raised very properly at Second Reading and again in Committee. It was on an issue to which he brings his own experience arising from a distinguished record of service.

The problem is that whatever may have been wrong with the text of the statute, that is not something which we can rectify by an amendment to this Bill, as the noble Lord very fairly recognises. What I understand troubles the noble Lord is that in Article 8.2(a) the mention of prisoners of war applies only to two very specific kinds of offence and not to the others and that in Article 8.2(c), as spelled out in the Elements of Crimes, it does not specifically protect those who are taken as prisoners of war in internal conflicts.

If they were unprotected, that would certainly be a defect which needed to be addressed. But as my noble and learned friend the Attorney-General explained in Committee, the definition of those protected is wide enough to include those who are taken as prisoners of war whether in international or internal conflicts. In Article 8.2(a) it appears that offences committed against anyone are brought within that article, and that would automatically include prisoners of war.

In Article 8.2(c) I would have thought that they would be,


    "persons taking no active part in the hostilities".

Therefore, I hope that the anxieties are misconceived. But I appreciate that if a statute is effectively to protect a category of potential victim it is not sufficient that offenders may in fact be prosecuted. It must be clear in advance to potential transgresssors that offenders are liable to prosecution. It may have been better if that had been done by a clearer specific inclusion in the text.

It may very well be that had the statute been drafted by a committee of your Lordships' House, some of the provisions would have been drafted differently. But a text produced by an international conference is likely

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to reflect the give and take which inevitably obtains on those occasions, otherwise there would have been no statute.

As I understand it, what the noble Lord seeks to achieve is to ensure that his concerns, including the text of the Elements of Crimes, will be addressed at the first reasonable opportunity. I would certainly support his appeal to my noble friend, first, to set on the record for all to see an assurance that the existing text does in fact cover those taken as prisoners of war and, secondly, to give an assurance that the text will be considered at the first reasonable opportunity.

Having said that, I hope that the noble Lord is not minded to press his amendment to a Division today because it would almost certainly be defeated. That might well be misunderstood by those on whose behalf he has raised the matter as amounting to a rejection of the argument, not as regards its procedural aspects, but on the merits of the content. That would not reflect the sympathy which I am sure the noble Lord's amendment has attracted in all sections of this House.


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