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Baroness Scotland of Asthal: My Lords, the noble Lord is correct; and it is something about which I am sure noble Lords opposite feel a degree of pride and satisfaction. It is something which we on this side of the House would openly and, I hope, generously applaud. It was right then; it is right now.

Perhaps I may say that the past hour has occasioned a little sadness. When the statute was debated in this House, there was unanimity. Virtually all Benches spoke with one voice. There was also unanimity in the other place in welcoming the statute and welcoming signature. So it is with a little disappointment that I notice the divisions between us now. But let us see whether we cannot clear some of those away.

The noble Lords, Lord Lester and Lord Goldsmith, were right when they referred to the basis on which paragraph 2(b)(iv) of Article 8 should be looked at. I shall not repeat all the comments that were made. However, I should like to assist the House with regard to the genesis of the breaches contained in paragraph 2 of Article 8 because, on a number of occasions, I have heard noble Lords--particularly the noble Lord, Lord Howell--mention them. The grave breaches of the Geneva Conventions appear in paragraph 2(a) of Article 8. The grave breaches of Additional Protocol 1 include the physical mutilation provision--paragraph 2(b)(x)--and making the civilian population the object of attack--paragraph 2(b)(i). There is also the launching of an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians or damage to civilian objects. That is a more stringent definition of the criminal offence which is now contained in paragraph 2(b)(iv).

Those provisions are all referred to in existing law--our law and not anyone else's law--which was brought into being by the Geneva Conventions (Amendment) Act 1995. So we need, my Lords, if I may respectfully say so, to take a steady look at where we are now. We are not seeking to do anything extraordinary. We are

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seeking to bring about helpful change. We are seeking to ensure that war criminals do not escape. I feel confident, notwithstanding the past hour, that all Members of the House can still join arms on that point.

This Government have never intended to take the seven-year opt-out on war crimes, which is provided under Article 124 of the Rome Statute. We see no need to do so. Indeed, there was a good deal of strenuous argument to stop Article 124 ever forming part of the Rome Statute. I am sure that the noble Lord, Lord Kingsland, will not mind me reminding him of what he said in this House on 20th July 1998 about our failure to stop that article becoming part of the statute. During the debate, which was held after the Rome Statute had been adopted, he said:


    "There is, however, one immense drawback ... The drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes".--[Official Report, 20/7/98; col. 626.]

I see that the noble Lord, Lord Kingsland, is in his place. He opposed Article 124 at the time and I hope that now he will have no difficulty in agreeing with me. Indeed, I hope that he, along with his noble friend beside him, the noble Lord, Lord Howell, will say that it would be undesirable and quite wrong to pursue an opt-out under the article and that, in due course, the amendment can be withdrawn.

Lord Howell of Guildford: My Lords, I hope that I shall not sound cynical if I say that long experience has taught me that when a government put before the House an important and substantial Bill and then assert that it changes nothing and that nothing in the Bill is new, that is the time for legislators to be alert. Of course this Bill will produce a new landscape. Of course there is something new here, in the form of a higher, international jurisdiction. It may not be a primary jurisdiction--I did not say that it was; other noble Lords made those comments--but its jurisdiction will come into operation when the nation state (in this case, the United Kingdom) is unable or unwilling--that is more relevant, because we would not be unable to do so--to investigate, deal with, try or address accusations and charges of war crimes. It would come into play when this country is not prepared to investigate because we believe that public servants and military personnel have acted in their highest duty under the command of their superiors, in line with public policy and political strategy.

When that is the case, and when the ICC has considered whether that would be an admissible objection after the pre-trial procedure and an appeal, then the ICC will have the final word. Therefore, we have here a new situation in which a higher international jurisdiction may make judgments about crimes--founded in international law, which of course we want to uphold, despite the inevitably vague wording as regards our own judicial context--which have been put onto our statute book. To pretend that nothing is new here and that there are no new risks, that the matter can be rushed through smoothly and that the situation will be as it was, is not, I believe, to act fairly and squarely towards those who may be affected by this legislation. In the end, it will affect in

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particular those in the front line, those who will have to undertake the difficult tasks, tasks which necessarily are sometimes bloody and violent in order to uphold and preserve peace and do down tyrants.

Lord Avebury: My Lords, I hope that the noble Lord will forgive me for intervening. If the noble Lord does not like the wording, why did the Tories enact it in the 1995 Act?

Lord Howell of Guildford: My Lords, I believe that the noble Lord is referring to the war crimes legislation.

I hope that I have explained clearly that that legislation is not what is new here. What is new is that a higher, international jurisdiction is now placed in a position--not a primary position, because domestic courts are complementary to it--where it can have the final word if the United Kingdom and its authorities do not wish to investigate or to bring charges because they do not believe that any crime has been committed. The trouble lies in that, where we do not believe that a crime has been committed, other countries, in the international context, could raise a case saying that crimes had been committed. Unless we understand that basic point; namely, that two points of view must be considered here, and that what one nation may regard as an innocent pursuit of peace--

Baroness Scotland of Asthal: My Lords, perhaps I may make it plain, if I did not do so earlier, that it is our belief that if a British citizen were to be accused of such an offence, then we in Britain would wish to investigate the matter and we would do so. I am sure that whichever government of whatever complexion in Britain would do the same. The situation which the noble Lord has described should not occur. If it did occur, it would be in our hands.

6.45 p.m.

Lord Howell of Guildford: My Lords, I understand what the noble Baroness said. But the danger remains where, as a nation, we would feel that our public servants and military personnel had performed their duties well. The hypothetical case has been raised; namely, the bombing of civilians and bridges in Kosovo. Other parliaments have gone further into the past and have discussed the decision taken during the Second World War to take out and smash the ancient monastery of Monte Cassino. It was believed to contain munitions; instead it contained priceless books and frightened monks. That was a direct and intentional attack on a civilian objective. These circumstances describe situations where the host country--it could be New Zealand or Britain--could say that, "Nothing wrong was done. There is nothing to investigate and we are unwilling to do so".

Lord Archer of Sandwell: My Lords, I am a little puzzled by the noble Lord's remarks about Monte Cassino. Surely the point was that that was not an intentional attack upon a civilian objective? It was thought to be a military objective.

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Lord Howell of Guildford: My Lords, the noble and learned Lord will recall that a considerable dispute broke out over whether it was a military objective. Even the concept of "intentionality"--if that is an English word--is one that can be debated. Other noble Lords have pointed out that it has two sides. Indeed, the history books still argue over whether the battle for Monte Cassino was intentional, whether it was known that it was a civilian target but that it needed to be taken out, or whether it was a military target. Indeed, that is why the French have put in a ratification status declaring that they want to be able to interpret the words "military objective". Whatever the noble Lord, Lord Goldsmith, has said, it is a highly subjective term. One person's military objective is another person's precious civilian site or institution. It is inevitable that there will be a difference of view.

I wish only to make the point that it cannot be right to say that there is nothing new here when clearly there is something new; namely, a new and higher jurisdiction. Many matters covered in the war crimes list, which forms part of the international law, have been accepted in the past, as pointed out by the noble Lord, Lord Avebury. However, when those matters are put into our statute law and are considered in the context of this higher jurisdiction, they raise questions. It is inevitable that they could put some of our Armed Forces into situations where questions could be asked. That is what worries them.


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