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Lord Tebbit: My Lords, not at all. There is no implication that they were civilians. What is a civilian in the context of the war that has been going on in Sierra Leone? There are many armed civilians operating as guerrilla forces. We also know that on many occasions our armed services in Northern Ireland have met armed civilians. They have not been authorised to shoot at them as though it were a war.

Lord Avebury: My Lords, surely the noble Lord is not suggesting that people carrying weapons and shooting at our troops are to be treated as civilians? That is an absolutely absurd argument. He is getting himself into an even more difficult corner than he was in at the beginning.

Before I sit down, I must refer to the absurd argument about genocide in Iraq. To say that we have been guilty of genocide because Saddam Hussein has deliberately prevented his people having the medicines and the food permissible under the oil for food programme is equally a travesty of the truth. Of course such a charge would not be levelled against the United Kingdom or members of the Armed Forces. However, if one were, the amendment has nothing to say about it, because Article 124 allows us to withdraw from the treaty for seven years in respect only of war crimes. So we would still be liable in the impossible circumstances that the noble Lord postulates that a charge of genocide was levelled against this country for the operations in Iraq.

Lord Shore of Stepney: My Lords, perhaps I may go back to before Sierra Leone appeared before us and to the distinction that the noble Lord, Lord Tebbit, made between serious war and relatively lightly engaged peacemaking operations. Of course there is a huge difference.

But there is also a third category--all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win.

There is another category of war. It is not quite total war, but it is war with which we are all familiar. I refer to what happened in Korea, in the Gulf, in Iraq, and in many other areas. We have had to fight to win. If I was to take seriously all these new listed war crimes in Article 8.2(b) onwards--all of them, not just some of them--I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.

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The minor suggestion made by the Opposition Front Bench is just an effort to do their best with what apparently is an inviolable convention and a Bill that must in no way be tampered with and amended, even where the most obvious sense and intelligence, based upon our own experience, tells us that some of these clauses are ridiculous. Unless one lives in a world inhabited only by international lawyers, one will recognise that without any difficulty. I am sorry to speak with vehemence on this matter.

Lord Goodhart: My Lords, I am grateful to the noble Lord for giving way. Does the noble Lord therefore believe that there is no such thing as a war crime? Does he, for instance, not recognise that we refrained from using poisoned gas during the Second World War? Does he not recognise that we refrained from using nuclear weapons in Korea when we could have done so, whatever the consequences might have been, to stop the Chinese invading?

Lord Shore of Stepney: My Lords, I look at paragraph 2(b) (xviii) and (xix) of Article 8. I will not have our people dragged before some court because we have used depleted uranium, which many people believe to be poisonous. Have we no idea that we are engaged frequently in conflicts in which, obviously along with the Americans and to some extent the French, we are more engaged than any other country? Why are we more engaged? The reason is because we all happen to be permanent members of the Security Council. We are most active in the business of bringing peace and order to this troubled world. We are putting ourselves unnecessarily in the dock by accepting a number of these foolishly agreed clauses in the convention.

I have no worry with the general categories dealing with crimes against humanity, against genocide; indeed, the first half of Article 8.2(a). I have no trouble with that at all because I share the same purpose. But why we should put ourselves in the dock in the foolish belief that we would win an action brought against us in a British court, while at the same time we know pretty well that we would lose the battle in the cause of public opinion in the world outside, I simply do not know.

Baroness Park of Monmouth: My Lords, I hesitate to follow that magnificent statement, but I want some clarification. We are the only country, so far as I know, which has a serious internal problem. I refer to Northern Ireland. Paragraph 2(e) of Article 8 applies,

    "to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups".

If one goes back to paragraph 2(c)(ii), one sees that some of the crimes that could be adduced against us include,

    "committing outrages upon personal dignity, in particular humiliating, degrading treatment",

and, in heading (iv), the,

    "passing of sentences ... without previous judgement pronounced by a regularly constituted court".

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I suggest that those are just the kind of accusations that the IRA would bring against us as claims of inhumanity and crimes against the statute. I just wonder whether we can take any precautions to prevent that happening. At the time that this was discussed, Mr Vaz said--it was not in relation to Northern Ireland but generally--that,

    "if serious allegations were made in good faith against British citizens, we are confident that we could demonstrate that there is a remedy in British justice".

I would certainly endorse that, but I doubt whether the IRA would. It therefore seems that there is a strong argument for the retrospective clause proposed by my noble friend on the Front Bench because this is precisely the kind of thing that led to Bloody Sunday and to the inquiry, which has already cost goodness knows how many millions of pounds and is still going on. Accusations against the Diplock courts and accusations of degrading treatment are just the kind of matters that would be brought forward. I should like some reassurance from the Minister that this issue has been considered. It is a unique situation. The other European countries mentioned do not have that problem. We do.

6.30 p.m.

Baroness Scotland of Asthal: My Lords, I should like to restore a little calm and perhaps temperance to the way in which we look at these issues. I say straight away that this country has a very noble and proud past in the way in which we stood up for the human rights not only of our own citizens but of the citizens of the world too. I should like to express confidence that the way in which our Armed Forces have been trained is such as to enable them to respond appropriately and proportionately when they are dealing with situations of war. If we look at the way in which we have behaved in the past, that has been clearly demonstrated.

I should like also to lay to rest the concerns raised by the noble Lords, Lord Monson and Lord Shore, and the noble Baroness, Lady Park. The Rome Statute of the ICC is full of safeguards. The principal safeguard is--I cannot stress this point enough--that national judicial systems will have the first claim on any investigations that affect them. United Kingdom authorities will retain the right and responsibility to investigate offences committed here or where UK nationals stand accused of committing these crimes anywhere in the world. The International Criminal Court will be able to step in only when the national judicial system is unwilling or unable genuinely to investigate. I can foresee no circumstances under which that would apply to the United Kingdom.

I turn to the comments of the noble Lord, Lord Howell. He started by saying that there has been a major change in the landscape. With the greatest respect, I disagree with him. We are not supporting a higher jurisdiction, as the noble Lord outlined. The ICC will not be a higher jurisdiction. It will be a complementary jurisdiction to our own. The definitions contained in the Bill and in the statute are

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already part of English law. They reflect international and domestic law, and the armed services are already aware of them and are trained accordingly.

It is important for us to remember that the definitions of war crimes are largely drawn from the Geneva Conventions of 1949, as was highlighted by the noble Lords, Lord Lester and Lord Goldsmith, and their additional protocols of 1977. The Geneva Conventions were incorporated into our domestic law by the Geneva Conventions Act 1957. That was done under a Conservative government--the Macmillan government. The additional protocols were incorporated into our domestic law under another Conservative government, in 1995, without waiting for the United States of America to ratify. The United States still has not ratified, although it signed in 1977.

Lord Lester of Herne Hill: My Lords, am I not right in thinking that it was also a Conservative government who ratified the United Nations Convention against Torture and then incorporated the standards in that convention into our domestic law?

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