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Lord Archer of Sandwell: My Lords, does my noble friend appreciate that we cannot amend the statute now? There is nothing that Parliament can do about it at this stage.

Lord Shore of Stepney: My Lords, my noble and learned friend has pointed out that, because of failures at earlier stages, we are faced with a procrustean treaty and a procrustean Bill that we cannot amend. I wholly accept that. Only two devices were available to us. One was to delay implementation of Article 8(2)(b) for seven years. The noble Lord, Lord Howell, moved an amendment to that effect on Report. I supported him on that. The only alternative is to put a statement on the record as to the real reservations--

Lord Lamont of Lerwick: My Lords, before the noble Lord agrees too readily with the noble and learned Lord, Lord Archer, does he recall that when President Clinton ratified the statute in the last days of his presidency, he said that it should not be made legislation by Congress without amendment? It was his view that it ought to be amended.

Lord Shore of Stepney: My Lords, I am grateful to the noble Lord for that helpful comment.

I assure the House that I shall be very brief in refreshing memories about my concerns. My amendment is very similar to that tabled by the noble Lord, Lord Howell. I have itemised certain aspects of Article 8(2)(b). I have no objection to some parts of it, but there are others that affect our ability to wage war. The article would make it a war crime deliberately to bomb civilians in a major war, intentionally to direct attacks against civilian objects or intentionally to launch an attack,

It would be dishonest to put my name to that. No one can fight a major war without engaging in measures that will involve civilians and civilian property. There is no point in denying that.

Further on, the article lists,

    "Employing poison or poisoned weapons",


    "Employing asphyxiating, poisonous or other gases".

That is very unpleasant, but many people think that depleted uranium is a poison. Depleted uranium bullets were used recently against tanks during operation Desert Storm. Are we going to allow that to become a legitimate subject of criminal prosecution?

The article also refers to,

    "Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival".

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One great ingredient of the Second World War was the blockade. We did not wish to inflict starvation on our enemies, but depriving them of resources was one of the weapons that we judged necessary for waging war.

Many of the issues listed arise not just in massive total warfare, but in the minor warfare--minor in terms of cost and endurance--and engagements that we have been involved in since the end of the Second World War. We bombed civilian targets in Kosovo, Serbia and elsewhere as recently as two years ago. We know that. I greatly fear that we shall put our military in an impossible position.

We have literate Armed Forces. Our servicemen can read and write. They are an intelligent force equipped by a modern democracy. It is not just the odd barrack room lawyer who will read such documents. They will be read much more generally. There will be a challenge and an uncertainty to the exercising of authority throughout the Armed Forces. It is carrying matters to the limits of absurdity and dishonesty to say that those who give commands are to be held responsible for any breach of those commands.

That brings me back to the issue of what to do with this Procrustean treaty and Bill. Having failed to secure a seven-year reprieve, at least we can insist that the Government make a declaration. That is allowed for. The French and others have used that device already. I am not going to write the declaration for the Government, or even dare to suggest the words, but surely there is sufficient sense, resource and responsibility in our Government to produce a short document that covers such problems and makes it clear that our Armed Forces or the people who command them will not be hauled before international tribunals or be made the subject of false accusations in our country and its courts.

We are in good company. The Americans find the whole thing difficult to accept. That is not just because they have a more robust or indifferent view. They are constantly engaged in the policing of the post-war world. We are only second in terms of frequency of action. The French are also involved. Is it not rather surprising that three of the five members of the Security Council have refused to go along with the statute without reservation? Are we to be so isolated? Other countries which have difficulty with it are democracies for which I have considerable respect, such as India and Israel, to which the noble Lord referred in his earlier remarks.

I end by giving an additional reason for my concern. I mentioned such matters as depleted uranium being poisonous, and the bombing of civilian targets, even when incidental. Can one imagine what the government of Iraq will pour out from Baghdad in terms of propaganda? All the sympathetic--or, rather, bullied--countries which want to remain in favour with Iraq will propagate charges in relation to such matters.

As my noble and learned friend the Attorney-General assured me during our debate at Second Reading, if such charges ever reach the courts, he will win the case because he has the ability and the

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conviction, and so on. He knows that we are right and that we would not dream of carrying out such dreadful deeds. As I said to my noble and learned friend on that occasion, we shall lose not in the court of law--although that is possible--but in the court of public opinion. All over the world, the enemies of this country and of democracy will seize the type of material that is set out in the Bill and say, "They are not even observing their own laws and convention. What a lot of hypocrites they are"-- when we only take up arms to protect ourselves and to protect the cause of democracy.

3.30 p.m.

Lord Lester of Herne Hill: My Lords, I shall not attempt to match the oratory of the noble Lord, Lord Shore of Stepney. I shall deal with a fairly narrow but important constitutional issue. I am very glad to do so in the presence of the Attorney-General because I believe that the amendments raise an important issue of constitutional law and practice. I shall say something about the merits of what the noble Lord, Lord Shore, said with regard to redefining war crimes. However, I shall not say anything about the responsibility of force commanders until we reach Amendment No. 7, under which that matter logically arises.

I believe that the House owes a debt of gratitude to the noble Lord, Lord Howell of Guildford, for tabling his amendments. They raise an important issue that has concerned me during most of the time that I have been in this House--that is, the extent of parliamentary involvement with the executive branch of government when that government sign and ratify international treaties and make reservations or declarations under those treaties.

Indeed, some years ago I was moved to introduce a Private Member's Bill on that subject, and I received support from all sides of the House. It was a much more modest measure than these amendments. Essentially, it proposed that an impact statement should be made in order to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. It also proposed that a committee--I believed that preferably it should be of this House--should be formed in order to scrutinise in some detail treaties such as this so that the House would be better informed when it came to debate. No doubt, that committee could have examined proposed reservations and declarations.

The story thus far is that the previous government accepted impact statements. They are now laid with treaties so that we have some idea of the object, purpose and impact of a treaty. The Royal Commission on the reform of this House recommended that a treaty scrutiny committee should be formed. However, through the Liaison Committee, your Lordships recently decided that now was not the appropriate time to follow that course. That decision was reached for reasons that I understand perfectly well; they are mainly resource reasons. We have so

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many new committees that I can see that adding a further one at this precise moment might overstretch our resources in terms of Peers and support.

The Government have indicated--the Minister will correct me if I am wrong--that they will change the current practice. In future, important treaties which the Government are minded to ratify will, as I recall, be referred to Select Committees of the other place in order that they can be examined--not across the board but in terms of subject speciality. I believe that that is a welcome step forward.

These amendments seek--they do so only in relation to the ICC statute--to write into the Bill a condition that the executive branch of the Foreign and Commonwealth Office cannot on behalf of the government of the United Kingdom and, hence, on behalf of the United Kingdom as a whole ratify the ICC statute until both Houses of Parliament have approved a report setting out the reservations and declarations. Of course, as a democrat, I cheer in a way because that is the maximum amount of parliamentary approval that one could possibly expect with regard to declarations and reservations.

However--I hope that in what I am about to say I am not regarded as too executive-minded--I am not sufficiently democratic to wish to go that far in relation to this or any other treaty. One practice that I do not admire in the United States is that which requires the United States Senate to give its approval to the ratification of treaties. It is precisely that which has caused a prevailing conservative majority in the Senate, led by such distinguished Senators as Bricker, either to tack on to international treaties amendments of their own in order to frustrate the purpose of government in entering into them on the international plane or, having in one way or another hampered the ability of successive United States governments--Republican as well as Democrat--to be able to enter into treaties such as the genocide convention, to take only one of several extreme examples.

I believe that there are limits to democratic accountability. In the field of European Union law, rightly we have very deep scrutiny--for example, in this House--because legislation which emanates from the European Union is often directly binding on this country without the need for Acts of Parliament. However, I do not believe--nor do I consider that my party would believe--that we should go so far with democratic scrutiny as to say that, whether in relation to this or any other treaty, the executive branch cannot ratify unless any reservation or declaration has first been laid before each House by report and approved.

Perhaps I may remind your Lordships briefly that, so far as I am aware, that has never been the practice in relation to previous treaties, however important or controversial. I take as an example the one that I remember best--that is, the European Convention on Human Rights. The Attlee government did not even lay it before Parliament for debate. When the Conservatives won power and in, I believe, 1953 ratified the first protocol, which did very controversial things in the field of education, property and voting

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systems, they made a reservation under the education provision. It would have been unheard of for Parliament to have to approve the signing and ratification of either that protocol or the reservation that was made at the time.

Therefore, we are considering the relationship between Parliament and the executive in the treaty-making sphere. Although it would be most welcome if, at the right time, the Government were able to inform the House of the reservations or declarations that they proposed to make, I do not believe that it would be proper or sensible for Parliament to write that requirement on to the face of this or any other Bill dealing with treaty incorporation.

Finally in relation to this matter, it would give a strange sense of our priorities were we to write in such a requirement for the International Criminal Court Bill, which deals with such important subject matter as war crimes, crimes against humanity and acts of genocide. It would appear in some way as though we considered this treaty to be more difficult to accept than all the previous treaties concerning torture, inhuman and degrading treatment, punishment, and so on. That is all I want to say about the principle raised by each of these three amendments. It is a very important issue.

So far as Amendment No. 7 is concerned, this is not the time for me to explain in detail why what is contained in Article 8 of the statute, in the definition of "war crimes", has for many years represented the relevant international law. The only way in which I can appeal to the noble Lord, Lord Shore of Stepney, is not by explaining the law but perhaps by quoting something said by a very famous American General after the war in the controversial context of the Yamashita case. I do not believe that the majority of the Supreme Court in the case of Yamashita gave a ruling with which I agree; I prefer the dissents. However, that is beside the point. For me, the words of General Douglas MacArthur sum up an answer to the values expressed by the noble Lord, Lord Shore. General Douglas MacArthur said:

    "The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason for his being .

    When he violates this sacred trust he not only profanes his entire culture but threatens the very fabric of international society. The traditions of fighting men are long and honourable, based upon the noblest of human traits--sacrifice.

    The officer, of proven field merit and entrusted with a high command including authority adequate to his responsibility, has failed this irrevocable standard, has failed his duty to his troops, to his country, to his enemy, and to mankind; he has failed utterly his soldier faith".

For those kind of reasons, we are opposed to all three amendments.

3.45 p.m.

Lord Campbell of Alloway: My Lords, the noble Lord, Lord Lester of Herne Hill, has all but kicked into touch, into the groves of academia, Amendments

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Nos. 1, 3 and 7 as printed on the Marshalled List. With the leave of the House, I should like to return to them and to the relevant provisions of the Bill.

The House will be grateful to my noble friend Lord Howell of Guildford for having drawn our attention to the need for clarification of matters which at the moment remain obscure--and I do not propose to indulge in any repetition--and on which the Government are under an obligation to inform Parliament and seek the approval of Parliament. Those matters relate--and here we come to the provisions of the statute--to reservations entertained by government on any articles of the statute on which a formal reservation on ratification is prohibited by Article 120.

One has to draw the distinction, as I think my noble friend did when he talked about "R" with a small "r" and a large "R"--it is a vital distinction, because reservations are prohibited--between that and the exceptions as to the jurisdiction of the ICC on Article 8 up to seven years, which may be made, and have been made by France, under Article 124. That exception is declared on ratification, which, it is understood, it is not the intention of this Government to make. From a practical point of view, that is where we stand in considering Amendment No. 1.

At Committee stage, on my amendment on prisoners taken in armed conflict, which is not at all the same as the protection of those indulging in armed conflict--the matter before the House today--the noble and learned Lord, Lord Williams of Mostyn, informed the House that the Government would make interpretative statements on ratification. I do not know what that means. I respectfully ask: for what purpose, related to which articles, what is the substance, for what reason should they be made, and what would be their effect? I ask, not to try to be clever--as someone said, as a barrack room lawyer--but because I simply do not know; and I think that the House is entitled to know.

It is also important to know whether Amendment No. 1, if accepted, would delay ratification. It is certainly of importance to me, having accepted an undertaking on my amendment on the basis that there should be no such delay. Having accepted that undertaking, if there were any effective delay, I should have to abstain on a Division. I respectfully ask when, in due course, the Government intend to ratify the measure. If this amendment could be implemented before that intention were implemented, there would be no objection.

Your Lordships are entitled to have answers to these questions on the Floor of the House before this Bill do pass. In the absence of any satisfactory undertaking on this amendment and on Amendment No. 3, these amendments could well commend themselves to your Lordships. If so, Amendments Nos. 1 and 3 are in no way inconsistent with Amendment No. 7, spoken to by the noble Lord, Lord Shore.

I turn to Article 9, the machinery of the statute, in relation to which no great academic expertise is required; one has only to read Article 9 at the end of

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Schedule 8 of the Bill. It is understood that the draft text of the elements of crime on interpretation and application of Articles 6 to 8 will be approved by the state parties, and that under paragraph 2 of Article 9 any state party, a majority of judges, or the prosecutor may make proposals for amendments, which could not be implemented until 2007, by the assembly of states--not, of course, by our Parliament or the parliament of any member states. As these elements of crime, as amended, will govern the interpretation and application of these articles in our domestic courts, ratification, let us face it, will involve a limited surrender or pooling of sovereignty, save as excepted for up to seven years under Article 24, as proposed by Amendment No. 7 tabled by the noble Lord, Lord Shore.

As one of the leading Christian states in Europe, perhaps the servants of the "Grand Design" of King Henry of Navarre and his great Minister, Sully, we shall ratify the statute which seeks to afford universal protection against inhumanities. That is a moral commitment not called into question by Amendments Nos. 1, 3 or 7.

There is little for me to say on Amendment No. 7 in the name of the noble Lord, Lord Shore, because, in effect, it has all been said, and said much better than I could say it. I wish only to point to the fact that during the course of debate on this Bill, many concerns have been expressed on Article 8, most of which relate to the provisions of Article 8 referred to in the noble Lord's amendment.

As yet, those concerns have not been addressed other than by the Government contending that such is the state of public international law, and we then all say "yes", and the provisions as they stand are adequate and wholly intelligible, and we all say "no" and the Government say "yes". There is the issue and there is the need for concern.

But on the protection and safeguards of those taken prisoner in armed conflict, the Government have given a most valuable undertaking, which addressed one particular concern, which ensures that if inadequacies appear to exist, on representations, proposals for amendments to the elements of crime will be made for the consideration of the assembly in 2007.

As the contention is that such inadequacies do exist today and that Article 8 should be reviewed for redefintion and clarification, I support this amendment. It does not and could not delay Royal Assent or ratification of the statute. Therefore, having accepted the undertaking from the Government, I have no qualms about supporting this amendment in any event.

The reasons for my support have already been given on Second Reading, in Committee and on Report when speaking to my amendment which was withdrawn on this undertaking. On more than one occasion in debate on this Bill, the noble Lord, Lord Shore, has given reasons--coincidentally, they are not in prior arrangement with me--which have squared with my own, more or less. The noble Lord has made

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an admirable speech, for which the House will be grateful, and it is not for me to indulge in repetition and I commend Amendment No. 7 to the House.

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