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The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I say straightaway to the noble Lord, Lord Campbell of Alloway, that the sympathy referred to by my noble and learned friend Lord Archer of Sandwell is very much felt on this side of the House generally. We understand the importance which the noble Lord rightly places on this issue, and agree with him. The difference is that the Government's view is that any statement made in the terms suggested by the noble Lord, Lord Campbell, would in fact hinder the protection of prisoners of war rather than advance it.

The provisions of the Bill which deal with prisoners of war reflect the terms of the Rome Statute, which in turn reflects the state of international law as it is. If the law is insufficient--a point about which we are not convinced--then it is the law itself--the Geneva Convention and the additional protocols--which needs changing rather than the Rome Statute. It is our belief that the wording of that statute, linked with the additional definition provided by the Elements of Crimes to which the noble Lord has already referred, is sufficient both to meet the noble Lord's concerns and to allow the judges of the International Criminal Court flexibility to meet new circumstances as they arise. We understand the concern expressed by the noble Lord about the new forms in which those problems might manifest themselves. A statement in the terms suggested by the noble Lord, Lord Campbell, would suggest otherwise and therefore cast doubt on the efficacy of the existing provision.

However, we should like to make it clear that we share the noble Lord's concern for the plight of prisoners of war and indeed all prisoners detained in conflict situations. I can assure him that the Government will watch closely the developing jurisprudence of the International Criminal Court. Should it appear, contrary to our current belief, that there are inadequacies in the relevant provision, we shall raise the matter in all appropriate fora including

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any review conference called under Articles 121 and 123 of the statutes to ensure that the interests of prisoners of war are properly protected. With that assurance, I hope that the noble Lord will not feel it necessary to press the amendment.

Lord Campbell of Alloway: My Lords, I am very grateful to the noble and learned Lord, Lord Archer of Sandwell. I am extremely disappointed that the matter does not seem to be understood. Although I agree that the texts do represent the state of public international law as it is today, I disagree that it is clear and capable of ready understanding. I take the view that it quite clearly warrants clarification, review and redefinition.

The Government will not accept that, so I cannot ask the noble Baroness to give an undertaking on that basis because she will not and cannot. But I ask for an undertaking to submit proposals for amendments to the Elements of Crimes if the Government cannot give an undertaking to implement the amendment as it stands.

That leaves open the question and does not commit the Government to accept my view or they mine. But thinking about the purpose of this amendment, I ask the Government to undertake to submit proposals for amendments to these Elements of Crimes at some appropriate time before 2007 in whatever form and howsoever phrased as the Government wish without any element of pre-emption. If the Minister would give me an undertaking in those terms, I would assuredly be prepared to withdraw the amendment. If she wanted time to consider the matter, I should withdraw the amendment on the basis that on Third Reading there would be a definitive decision on the matter.

Baroness Scotland of Asthal: My Lords, I hope that I made it clear to the noble Lord that, as I said, the Government will, if there are inadequacies in the relevant provisions--that is contrary to our current belief--raise the matter in all appropriate fora, including any review conferences. As noble Lords know, the next such conference is likely to take place seven years hence. If we need to, we will raise the issue at that conference.

Lord Campbell of Alloway: My Lords, if the Minister receives representations from the Ministry of Defence on behalf of the forces, I assume that they will be considered by the Government. Is that right?

Baroness Scotland of Asthal: My Lords, we will obviously take into account all representations that are made to us when we consider whether the rules adequately address the difficulties. I have already said that we share the noble Lord's concerns that the rules should properly protect prisoners of war. We believe, contrary to the noble Lord, that they currently do so. If we are found not to be right about that--if inadequacies are highlighted--I assure him that we should wish to address those inadequacies and that we

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should do so in any and all of the appropriate fora, including the review conference that will meet in due course.

Lord Campbell of Alloway: My Lords, I am obliged to the Minister for that reply and for her great help and sympathy throughout. On the understanding that representations from the MoD would, with other representations, be taken into account, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Howell of Guildford moved Amendment No. 2:

    Before Clause 1, insert the following new clause--


(" . This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.").

The noble Lord said: My Lords, the purpose of the amendment, quite simply, is to enable the Government to proceed in accordance with Article 124 of the Rome Statute, which is entitled, "Transitional provision". It allows a state, on becoming a party to the statute, to declare that for a period of seven years after the entry into force of the statute, it does not accept the jurisdiction of the court with respect to the category crimes that are referred to in Article 8. That purpose is at the forward edge of the amendment. That means that the amendment would not conflict with the Rome Statute. The Government have repeatedly made it clear that they are anxious to preserve in the Bill the Rome Statute's wording almost to the letter.

I want to discuss for a few moments the various wider concerns and anxieties that motivated me to move the amendment. I make it clear at the start that no Member on this side suggests that war criminals should be shielded in any way or not brought to justice for the hideous crimes that they perpetrated. I also recognise, as Ministers made clear during the Bill's Committee stage, that the jurisdiction of the ICC comes into play only if British courts--service courts or civil courts--are unwilling to investigate a particular case. I also recognise--I take a phrase from a letter that the noble Baroness kindly sent me about these matters--that the Government's aim is to achieve a delicate balance between protecting service personnel and making sure that the ICC has teeth. We must bear all of those considerations in mind.

Although we have long accepted the Geneva Convention and its protocols, we are seeking to introduce into our own statute law the long list of war crimes in Article 8. That is a major change to the legal landscape. I noticed that 10 Downing Street made a comment of a dismissive kind--it said that nothing had changed and that we had long accepted the Geneva Convention. I am afraid that that shows that

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No. 10 does not understand the situation and is misinformed; we are dealing with something new in this context. When the change goes ahead, we shall be supporting a higher jurisdiction and placing on our statute book the long list of war crimes.

Legitimate anxieties have been aired recently in newspapers by members of the Armed Forces. Yesterday's Guardian quoted various defence personnel, one of whom--a senior defence source--said:

    "Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals".

He added that Ministers were "very aware" of such a prospect. The article stated that that defence source was concerned in particular about,

    "conflicts and operations, short of a full-scale war, even--paradoxically--where British forces were engaged in support of the UN".

Another senior defence source, who was further identified in another newspaper as a naval defence source, said,

    "future rules of engagement could ... prevent a British warship from attacking a hostile vessel until it was too late".

Attention was drawn in particular to several provisions in Article 8. The Guardian referred to paragraph 2(b)(iv), which appears in Schedule 8 to the Bill. That paragraph refers to:

    "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".

One can surely understand the concerns that lie behind that provision. I am sure that the Minister accepts that such subjective phrases would have to be given clarity and established in the heat of urgent action or battle. How can one decide what will be "excessive" damage when an operation is about to be launched or is under way? Surely such provisions place front-line personnel and their superiors--whose position we shall come to later--in considerable difficulties.

That paragraph is not the only one that appears to use highly subjective phrases. We could live with such provisions when they were part of the Geneva Convention and of international law in the broader sense. Now that they are being introduced into our own statute law it is necessary to define somewhat more clearly, if we can, exactly what is meant by, for example, "military objectives". Paragraph 2(b)(xiii) of Schedule 8 refers to:

    "Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war".

What is meant by that? Just after the Second World War, a good deal of enemy property was being seized after the end of hostilities. If the Bill had been in place then, would such seizure have been a war crime? Our European Union partners obviously have had the same doubts about those matters. The Republic of France has placed very clearly in the ratification

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document a statement, a declaration, under Article 124 that,

    "the French Republic declares that it does not accept the jurisdiction of the court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory".

It is, of course, permitted to do that for seven years or for a shorter time if it so decides under the statute. Is that not an example which we should ponder very carefully before dismissing it? Is it not an example that we should copy?

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