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International Criminal Court Bill Hl

Volume 623: debated on Tuesday 20 March 2001

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3.8 p.m.

Read a third time.

moved Amendment No. 1:

Before Clause 1, insert the following new clause—


(". The Secretary of State shall not ratify the ICC Statute unless—

  • (a) a report is laid before Parliament, setting out—
  • (i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,
  • (ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
  • (b) that report is approved by each house of Parliament.").
  • The noble Lord said: My Lords, the amendment states that,

    "The Secretary of State shall not ratify the ICC Statute"—

    that is, of course, the Rome Statute—

  • (a) a report is laid before Parliament, setting out—
  • (i) any reservations Her Majesty's Government proposes to make and the reasons for those reservations,
  • (ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
  • (b) that report is approved by each house of Parliament".
  • The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure. Those who have followed our proceedings will have noted that while reservations to the statute are prohibited under Article 120, a range of declarations and interpretative comments have been placed on the ratification status document by some of the 39 countries which have already ratified the statute. In some cases, those are very detailed—in particular as regards France and Israel. It seems only right that we in Parliament, and your Lordships, should seek to know what declarations the Government intend to put down. They will colour the way in which this country approaches the statute and the entire project, and deals with the International Criminal Court authorities in the future.

    Not having had much luck at earlier stages in seeking clarification from the Opposition on how our Armed Forces will be protected where the United Kingdom is unwilling to make an investigation but where the ICC therefore feels that it has the jurisdiction to do so, and having found some reluctance by the Government to state what declarations there will be—they would in effect be reservations with a small "r"—we seek again to elicit this information by placing the requirement proposed in the amendment on the Government before they ratify.

    It is an important requirement. It is not just an idle request in order to keep Parliament informed in an age when, all too often alas, it is by-passed. It is a matter of great concern. That concern has been expressed strongly in this country by our Armed Forces. If anyone doubts that, he should have read the front pages of our daily newspapers. A great deal of uncertainty remains. If anyone thinks that this is an idiosyncratic request coming only from one side in the British context, look at the attitude of other countries.

    France and Israel have made declarations which seek to protect their armed forces. They are clear on the ratification status document. I draw attention to one. It states that the declaration of the Government of France does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law. Another declaration seeks to interpret the phrase, "military objectives", which appears in the war crimes schedule, in ways which would be handled by the French themselves.

    What is behind those and other considerations is not a narrow nationalism or even an unwillingness to support the noble and excellent principles behind the setting up of the court, and the Bill. It is simply to accept—the point was made by the noble Baroness, Lady Williams of Crosby—that modern actions by troops, soldiers and armed forces are extremely complex, sensitive and difficult. They involve many levels of response, from the non-response—"Don't shoot back at all"—to a self-defence of the most vigorous kind. These require the most refined and rapid judgments under fire and place on our Armed Forces considerable burdens of decision as to whether they are acting in a lawful way, or an unlawful way which could constitute in the eyes of others—not of their own commanding officers, their own jurisdiction or their own country—a war crime and, therefore, make them liable to investigation and charges.

    We believe strongly that Parliament must know the declarations that our Government will put down on the status document to protect the Armed Forces—they are trying to do their job in difficult circumstances—against these additional risks and challenges.

    That is the thinking underlying Amendment No. 1, grouped with Amendments Nos. 3 and 7. Perhaps I may speak to Amendment No. 3 in the name also of my noble friend Lord Kingsland. It returns to the question of reservations but particularly in relation to Clause 50. One cannot make reservations about the statute itself. But reservations in relation to other treaties which may be relevant to the interpretations of articles under the statute can be withdrawn, made, revoked or amended by the Government.

    Parliament has a right to expect to be involved in the detail of such matters. Amendment No. 3 proposes that before any such reservation or declaration to a treaty predating the International Criminal Court statute is withdrawn, the reason for such withdrawal is approved by both Houses of Parliament.

    Underlying the two amendments is the continuing concern—it has not been answered in all our discussions—about the further protection of Armed Forces. I am the first to concede that life is difficult enough for those operating in hot war, or nearly hot war, situations under the mixture of constraints and laws which rightly govern the modern warfare in which our nation becomes increasingly involved; namely, humanitarian causes and peacekeeping. But it is evident, and many believe—I am one—that unless we are very careful we shall add to rather than subtract from those difficulties. It is in that spirit that I beg to move the amendment.

    3.15 p.m.

    My Lords, Amendment No. 7, which stands in my name, is grouped with Amendment No. 1, moved by the noble Lord. I have no disagreement with what he said. Indeed, my task is made simpler. I shall seek to reinforce the case made by the noble Lord in his usual moderate way.

    In some ways a long tradition inhibits me from intervening on Third Reading and moving an amendment. It is almost unknown in another place. But this House gives quite extraordinary latitude to Members and I shall take advantage of it.

    It is a serious move to which I wish to draw the attention of the House. Let us be clear. I have no problem with the thrust and purpose of the convention and the Bill. I welcome the implementation as an international crime, and with all the mechanisms so described in the Bill, of genocide (Article 6 in the convention), crimes against humanity (Article 7), and the traditional war crimes, with which we have been familiar since the First World War, referred to in the first part of Article 8. I add this point. The kind of circumstance which most noble Lords have addressed when speaking in favour of the Bill would be covered entirely by the enactment of Articles 6, 7 and 8(2)(a). Dreadful monsters such as Pol Pot and Saddam Hussein, who have inflicted such misery on their own people and on others, would be caught under those provisions. There is no worry about that. Thai would close a great gap in international law.

    So what is my problem? It is twofold. The lesser part of it is that, almost unbelievably, the list of very important acts of war, which are to be outlawed in Article 8(2)(b), has not even been mentioned in either House of Parliament during the evolution of the convention. Statements were made in both Houses in July 1998 saying that we were signing the Rome Convention and just before that my noble and learned friend Lord Archer of Sandwell initiated a valuable debate in which he gave his principled case for the implementation of Articles 6, 7 and 8(2)(a) as part of an international treaty. However, on none of those occasions or in the Commons debate on a Wednesday morning some time in November 1999 has anyone mentioned the list of acts of war that are to be criminalised. I was going to call them new crimes, although others might call them old crimes. That is an astonishing failure of Parliament to do its job, but we have a chance to rectify it now.

    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.

    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—

    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.

    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,
    "in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects".
    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".
    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 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.

    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 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 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.

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

    My Lords, I want to mention two items listed as war crimes in Article 8 which have not yet been mentioned in this debate. They seem to me among the most important. Item 2(a)(i) refers to "wilful killing" and (iii)refers to,

    "Wilfully causing great suffering, or serious injury to body or health".
    Are not those exactly the sort of things which our troops in war are instructed to try to inflict on any enemy?

    My Lords, I want to make only three very brief comments in support of this group of amendments. The first is that, like it or not, civilians are part of a total war. In the last war, we had to bomb Berlin; they bombed us. People were proud to be part of the war, part of the front line. If we had not bombed—I am sorry to say—the Ruhr, I doubt whether we should have been able to invade the Continent and liberate it. We needed to destroy the arms which were being built there. That is the first point.

    The second matter is that the word "intentionally" is very subjective. It seems to me that many people, like members of the IRA, would come back and create any number of "Bloody Sundays" without anyone being able very easily to prove whether something done had been intentionally or not.

    If one looks at the UN and its record of activity, in general, the UN troops are quite hopeless at policing any sort of active conflict because they are inhibited in how they respond to attack. We would be doing that to our troops. What on earth would be the rules of engagement if the MoD had to flog through this and wonder whether or not the rules of engagement would be protecting them and protecting the people?

    It seems to me that we would completely inhibit the ability of our troops not only in a serious fighting war but even in the matter of the so-called Petersberg tasks and humanitarian events. One has only to look at what is now happening on the border of Macedonia to see that troops need to have absolutely clear rights to defend themselves. If we come back to the word "intentionally", it all hangs on whether the other side says that you intentionally shot them before they shot you.

    My Lords, I am grateful for the contributions which have been made. I deal first with the remarks of the noble Baroness. She asked, rhetorically, what would be the rules of engagement. One of the difficulties about rhetorical questions is that sometimes, they call for an answer.

    The rules of engagement, with which she and I are both well familiar, are, of course, presented and provided to our Armed Forces at the moment in relevant conflicts, of which there have been a number recently. They are all drawn in conformity with the law, which includes international law, and, of course, they are there for the dual purpose internally that they shall know what the law allows; and secondly, to protect them when they act lawfully. So I can say from personal experience that there is no difficulty at all in casting and providing rules of engagement for our servicemen who themselves—I take up the theme of the noble Lord, Lord Lester—wish to act honourably and lawfully and who, in the overwhelming number of circumstances of which I am aware, fulfil that task.

    I go back to the question which was put specifically by the noble Lord, Lord Campbell of Alloway, who asked whether there would be significant further delay. There would inevitably be such delay deriving from the structure of the first amendment in the name of the noble Lord, Lord Howell, because a good deal of parliamentary activity has to be gone through, not least in a report to be set out and approved by each House of Parliament. Of course, for a significant period of the year, neither House is sitting and there would be very substantial delay. The noble Lord was good enough to indicate to me that he might raise this question. Our policy purpose—I hope that it has been abundantly approved as a policy purpose by both Houses—is to be among the forefront of those who ratify.

    As my noble friend Lady Scotland and I have said on previous occasions, we were in the vanguard of this particular international activity. We want to be among the first 60, and until 60 ratify, the treaty cannot come into effect.

    I mentioned the noble Lord, Lord Lester. He raised what he indicated was a wider question and one not limited to this Bill. I am happy to revert to what my noble friend and I have said on earlier occasions. I agree with the noble Lord, Lord Lester, that there is a genuine issue that should be addressed on another occasion as to whether we should have a treaty scrutiny committee. Perhaps he will forgive me if I simply, without presumption, endorse that that is a valid matter and move on from that wider point.

    First, I turn to Amendments Nos. 1 and 3, which deal with matters of reservations and declarations and, secondly, without trespassing on your Lordships' patience, I shall deal in some detail with what the noble Lord, Lord Shore, said. The first two amendments relate to reservations and declarations. Having self-instructed ourselves during previous debates, we all now know that no reservations are capable of being made to this statute and, accordingly, Her Majesty's Government will not make any. As noble Lords have pointed out, that is Article 120 of the Rome Statute:
    "no reservations may be made to this Statute".
    Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the fact—already found in some declarations—that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one.

    We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make. I know that the noble Lord, Lord Howell, has received a full letter from my noble friend Lady Scotland and we are happy to keep in close contact with the noble Lord or with any other noble Lords who are interested in this matter. At the risk of tedium, I have to say that reservations are not allowed. We shall not be allowed to make any effective declaration that purports to modify the legal effect of the statute.

    I repeat that we signed, to a general welcome in both Houses. There is already parliamentary provision—I use that as an umbrella description—in the Bill at Clause 50 for any statements made to be laid before Parliament by Order in Council. Clause 50 sets out that Articles 6, 7 and 8.2 of the statute shall be construed subject to and in accordance with any relevant declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles. We intend to lay before the House, in that form, any relevant declarations, including any made on ratification of this statute.

    This is not new. The noble Lord, Lord Lester, is quite right. In the Geneva Conventions (Amendment) Act 1995, for example, it was thought appropriate under our predecessor regime that the statements made on ratification should be set out by Order in Council after they had been made. We believed that that was the correct approach then and we believe it is the correct approach now.

    The noble Lord, Lord Blaker, introduced certain short questions, to which he is entitled to an answer. The answer and the matters that engaged his mind are to be found in the work of the preparatory commission for the ICC. Article 8, as the overarch to the introduction to war crimes, makes it quite plain. I shall read it out as it focuses precisely on the question put to me by the noble Lord.
    "The elements for war crimes under Article 8, paragraph 2 of the statute shall be interpreted"-
    I pause to underline the following words—
    "within the established framework of the international law of armed conflict, including as appropriate the international law of armed conflict applicable to armed conflict at sea"—
    which refers to the question raised about blockade. In other words, those acts that are lawful, pursuant to the established framework of international law of armed conflict, remain lawful.

    Having set out my objections and explanations on Amendments Nos. 1 and 3 on behalf of the Government, I turn to do honour to the argument deployed by the noble Lord, Lord Shore of Stepney, in a little detail. He raised questions about a number of distinct articles. I shall introduce the matter in this way: Article 8.2(b)(i) is taken from Article 51 of the Additional Protocol I to the Geneva Conventions. It is a grave breach under Article 85.3 of that protocol. Therefore, it has been an offence under United Kingdom law since 1995 under Section 1 of the Geneva Conventions (Amendment) Act 1995, which I mentioned a moment ago.

    British courts have universal jurisdiction over that and all other grave breaches of the convention. In parenthesis—this is an important parenthesis—I should say that both the noble Baroness and I have tried to underline on every appropriate occasion the principle of complementarity, which is not a dry piece of jargon loved only by lawyers. It is important that I repeat, for the reassurance of the House, that that means that domestic jurisdiction has the first opportunity of trying those charges. If charges are to be brought, they can be brought in the United Kingdom courts. Only if the domestic jurisdiction, namely our own, is unable or unwilling to take jurisdiction will the international criminal court feature at all.

    Article 8.2(b)(ii) comes from Article 52 of the protocol. Article 8.2(b)(iv) is a weaker version of Article 51.5(b) of Additional Protocol I, which is already a grave breach under Article 85.3. Therefore, I repeat that it is already a criminal offence under UK law. It is true that, in the past, prosecutions have been rare if not unknown, but that does not mean that the law does not exist with its power and weight available to be deployed on any suitable and relevant occasion.

    Article 8.2(b)(xvii), to which the noble Lord particularly referred, comes from Article 23(a) of the Hague Convention IV of 1907. Forgive this historical recitative, but we ratified that in 1909. Article 8.2(b)(xviii) comes from the Geneva Gas Protocol of 1925, to which, rightly in my opinion, we have been a party since 1930. At the time of signature, we entered reservations but those were superseded when we adhered to the later Chemical Weapons Convention of 1993.

    Article 8.2(b)(xix) comes from the Hague Declaration 3 of 1899, to which we have been a party since 1907. Article 8.2(b)(xxv) is based on Article 54 of Additional Protocol I.

    All those crimes that I have mentioned in what I recognise to be tedious detail, but necessary for the record as well as for reassurance, are already crimes under international law and many of them are crimes under domestic law. We have lived by them for many years and have no difficulty in accepting them now. I repeat that I have confidence in the ability of Her Majesty's Armed Forces to discharge their duties honourably and lawfully.

    We come to a fundamental question which lies behind the Bill and our action, which, I repeat, was endorsed by both Houses. Do we wish the law to have the strength and power to which we pay lip service? Lip service is easy, cheap, costs nothing and offers no remedy.

    My Lords, I am grateful to the noble and learned Lord and to all noble Lords for their comments. I am pleased by the reception which the amendment has been given by your Lordships but I am a little less pleased by the Minister's comments.

    Perhaps I may first put aside the amendments to Clause 50. I assume from what the Minister said that there will be Orders in Council and that they will be handled by affirmative resolution. Unless I am checked on that matter, I am to some extent satisfied. I fully accept that those reservations lie outside the Rome Statute, that Parliament will be fully involved and that the affirmative resolution procedure will apply.

    Secondly, I repeat—the noble and learned Lord repeated it and we all repeated it to each other—that we recognise that reservations are not allowed under the Rome Statute. That is why the amendment, which specifically mentions reservations because they are relevant to other treaties, emphasises the point about declarations. It simply asks that Parliament should be involved in the process leading up to such declarations as Her Majesty's Government will put down at the time of ratifying the statute in the ratification status document.

    I am afraid that, although the noble and learned Lord promised not to lose contact over these matters, he did not address the central issue of whether Parliament should be properly involved. I shall turn in a moment to the broader question raised fascinatingly by the noble Lord, Lord Lester, about the extent to which Parliament should be involved in any treaty arrangements or to what extent the Royal Prerogative prevails. In this case, which I shall argue is a special case and not a precedent-setting case, the right of Parliament to know what is happening is very strong and can be reasonably pressed.

    Behind the issue is the worry, which was addressed with great eloquence by the noble Lord, Lord Shore, that these war crimes are widely drafted and need the most careful guardianship with assessment. We raised the matter at earlier stages of the Bill and this is the point where suitable declarations ought to be drafted and brought before Parliament in order to reassure those who are worried and to safeguard our Armed Forces and other people.

    There is no doubt that the definitions are wide. The point has been made not only in this House, because the new American Under-Secretary of State, John Bolton, said:
    "War crimes have enormous definitional problems concerning civilian targets … Would the United States, for example, have been guilty of war crimes for its World War Two bombing campaigns and the use of atomic weapons under the Rome Statute?".
    That is not a frivolous comment made by a bystander; it is a serious comment made by a senior member of the American administration.

    We shall turn to the responsibility of commanders when we debate Amendment No. 6. We shall also debate matters relating to the Manual of Military Law and to what extent it covers, and has long since covered, all these issues and all the various definitions of war crimes. The noble and learned Lord was kind enough to give us a long history of the way in which the various crimes have become recognised international crimes and have long been accepted as part of the context in which war must be fought, as, indeed, it could and has been argued, have the lists of crimes in the military manuals and the rules of engagement.

    However, with the greatest respect to the noble and learned Lord, all that is extremely interesting but, to use his own words, it completely misses the point. The point is that whether or not the crimes were previously on the statute book, we are now introducing a new and higher jurisdiction which may, in some cases we are not willing to investigate, want to press the matter. This is a new aspect, a new dimension, to an existing situation. It is no defence to say that because for years and years we have recognised these as international crimes everything is as before. Everything is not as before. The Bill is proof that we are trying to change things; we are trying to introduce a new jurisdiction. We welcome that in principle, but it means that we must be 10 times more careful in our handling of the definitions of these war crimes.

    The noble and learned Lord urges that we be at the forefront in carrying forward the project. Indeed, other noble Lords have spoken again and again about the need for the United Kingdom to set an example and be among the founder members and so forth. I suggest to Ministers and to the noble and learned Lord that there are two ways in which we can best be an exemplar and a role model. First, we must try to bring along the great United States, which has enormous concerns. Its non-participation will come close to wrecking the project; it will severely question the plausibility and credibility of the International Criminal Court if we cannot get the Americans to move further than merely signing with reservations. We shall debate the American position in a moment, so I shall not go into more detail. However, everyone is agreed that American involvement would be a huge advance and to take steps to encourage that would set a fine example. However, they have made it absolutely clear that they are opposed to ratification, and General Colin Powell repeated that again recently.

    The second way in which we should set an example would be to reassure our Armed Forces and to do so in ways which show that we recognise that there is a new situation. For all the rules of engagement, and for all the war crimes which have been adopted as international crimes since 1909, there is a new situation in which a higher jurisdiction may—not always, of course—want to involve itself at the instigation of an independent prosecutor who will not come under British jurisdiction.

    Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent? I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.

    The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.

    The range of crimes, to some of which the noble Lord, Lord Shore, referred, sounds rather fearsome. As I child, I remember receiving a message that my father had escaped from the second siege of Tobruk, which very much pleased me. It never occurred to me, and I am sure to him, that war crimes were involved. It is very difficult to define a siege and a military objective. Those matters have been on a list of international crimes and are now coming onto our statute book. I believe it is right that we should have some protective declarations to reassure our people that these matters will be handled in a sensible, mature and wise way. In so doing that will merely reflect the concerns expressed by our neighbour France, Israel, the debates in the Canadian and New Zealand Parliaments, although they are enthusiastic supporters, and the most learned minds in the United States. We should not be afraid of keeping such company. I believe that we should pursue the action set out in the amendment.

    My Lords, I gathered that the noble Lord was coming to his conclusion. Since he put a question to me earlier I thought it better to allow him to develop his theme. I hope that I have not intervened too early in order to assist him and the House. The noble Lord asked me a particular question about Clause 50. I should not like the noble Lord to proceed on a misapprehension. Clause 50, which draws on the Geneva Conventions (Amendment) Act 1995, makes provision by Order in Council. The Delegated Powers and Deregulation Committee did not comment adversely on that and call for the affirmative resolution procedure. I do not want the noble Lord to proceed on an incorrect basis.

    My Lords, that is a further disappointment and does not in any way impede me from uttering the final sentence of my speech. I propose that the opinion of your Lordships' House be tested upon this amendment.

    4.23 p.m.

    On Question, Whether the said amendment (No. 1) shall be agreed to?

    Their Lordships divided: Contents, 120; Not-Contents, 172.

    Division No. 1


    Ampthill, L.Laing of Dunphail, L.
    Anelay of St. Johns, B.Lamont of Lerwick, L.
    Ashcroft, L.Lane of Horsell, L.
    Astor of Hever, L.Lindsay, E.
    Attlee, E.Liverpool, E.
    Biffen, L.Luke, L.
    Blaker, L.Lyell, L.
    Blatch, B.McColl of Dulwich, L.
    Boardman, L.Mackay of Clashfern, L.
    Brabazon of Tara, L.Marlesford, L.
    Brightman, L.Masham of Ilton, B.
    Brougham and Vaux, L.Mayhew of Twysden, L.
    Burnham, L. [Teller]Miller of Hendon, B.
    Byford, B.Molyneaux of Killead, L.
    Caithness, E.Monro of Langholm, L.
    Campbell of Croy, L.Monson, L.
    Chadlington, L.Montrose, D.
    Chalfont, L.Mowbray and Stourton, L.
    Clark of Kempston, L.Murton of Lindisfarne, L.
    Coe, L.Noakes, B.
    Colwyn, L.Northesk, E.
    Cope of Berkeley, L.O'Cathain, B.
    Courtown, E.Onslow, E.
    Craig of Radley, L.Oxfuird, V.
    Cranborne, V.Park of Monmouth, B.
    Crickhowell, L.Peyton of Yeovil, L.
    Dean of Harptree, L.Plumb, L.
    Denham, L.Plummer of St. Marylebone, L.
    Dixon-Smith, L.Rawlings, B.
    Elles, B.Rees-Mogg, L.
    Elliott of Morpeth, L.Renfrew of Kaimsthorn, L.
    Elton, L.Renton, L.
    Erroll, E.Renton of Mount Harry, L.
    Feldman, L.Roberts of Conwy, L.
    Ferrers, E.Rotherwick, L.
    Fookes, B.Ryder of Wensum, L.
    Fraser of Carmyllie, L.Saltoun of Abernethy, Ly.
    Freeman, L.Sandwich, E.
    Gardner of Parkes, B.Seccombe, B.
    Geddes, L.Selborne, E.
    Gilmour of Craigmillar, L.Sharples, B.
    Glenarthur, L.Shaw of Northstead, L.
    Glentoran, L.Shore of Stepney, L.
    Gray of Contin, L.Skelmersdale, L.
    Greenway, L.Soulsby of Swaffham Prior, L.
    Hanham, B.Strange, B.
    Hayhoe, L.Strathclyde, L.
    Henley, L. [Teller]Swinfen, L.
    Hodgson of Astley Abbotts, L.Taylor of Warwick, L.
    Hogg, B.Thomas of Gwydir, L.
    Holderness, L.Trumpington, B.
    Home, E.Vinson, L.
    Hooper, B.Vivian, L.
    Howe, E.Waddington, L.
    Howell of Guildford, L.Wade of Chorlton, L.
    Hunt of Wirral, L.Wakefield, Bp.
    Jenkin of Roding, L.Walker of Worcester, L.
    Jopling, L.Weatherill, L.
    Kimball, L.Willoughby de Broke, L.
    Kingsland, L.Young, B.


    Ackner, L.Amos, B.
    Acton, L.Andrews, B.
    Addington, L.Archer of Sandwell, L.
    Ahmed, L.Ashley of Stoke, L.
    Alli, L.Avebury, L.

    Bach, L.Jay of Paddington, B. (Lord
    Barker, B.

    Privy Seal)

    Barnett, L.Jenkins of Hillhead, L.
    Bassam of Brighton, L.Jenkins of Putney, L.
    Berkeley, L.Kennedy of The Shaws, B.
    Bernstein of Craigweil, L.King of West Bromwich, L.
    Billingham, B.Laming, L.
    Blease, L.Lea of Crondall, L.
    Bradshaw, L.Lester of Herne Hill, L.
    Bragg, L.Levy, L.
    Brooke of Alverthorpe, L.Linklater of Butterstone, B.
    Brookman, L.Lipsey, L.
    Burlison, L.Lock wood, B.
    Carter, L. [Teller]Lofthouse of Pontefract, L.
    Christopher, L.Macdonald of Tradeston, L.
    Clarke of Hampstead, L.McIntosh of Haringey, L [Teller]
    Clement-Jones, L.MacKenzie of Culkein, L.
    Clinton-Davis, L.Mackenzie of Framwellgate, L.
    Cocks of Hartcliffe, L.Mackie of Benshie, L.
    Dahrendorf, L.McNally, L.
    David, B.Maddock, B.
    Davies of Coity, L.Mar and Kellie, E.
    Davies of Oldham, L.Marsh, L.
    Dean of Thornton-le-Fylde, B.Mason of Barnsley, L.
    Desai, L.Massey of Darwen, B
    Dholakia, L.Merlyn-Rees, L.
    Dixon, L.Miller of Chilthorne Domer, B.
    Dormand of Easington, L.Milner of Leeds, L.
    Eatwell, L.Mishcon, L.
    Elder, L.Mitchell, L.
    Evans of Parkside, L.Molloy, L.
    Evans of Temple Guiting, L.Morris of Castle Morris, L.
    Evans of Watford, L.Newby, L.
    Ewing of Kirkford, L.Nicholson of Winterbourne, B.
    Ezra, L.Northover, B
    Oakeshott of Seagrove Bay, L.
    Falconer of Thoroton, LOrme, L.
    Falkland, V.Parekh, L.
    Farrington of Ribbleton, B.Peston. L.
    Faulkner of Worcester, L.Phillips of Sudbury, L.
    Filkin, L.Plant of Highfield.L.
    Fitt, L.Ponsonby of Shulbrede, L.
    Fyfe of Fairfield, L.Prys-Davies, L.
    Gale, B.Ramsay of Cartvale, B.
    Gibson of Market Rasen, B.Randall of St. Budeaux, L.
    Gilbert, L.Razzall L.
    Gladwin of Clee, L.Rea, L.
    Goldsmith, L.Redesdale, L.
    Goodhart, L.Rendell of Babergh, B.
    Goudie, B.Rennard, L
    Gould of Potternewton, B.Richard, L.
    Grabiner, L.Rodgers of Quarry Bank, L.
    Graham of Edmonton, L.Rogers of Riverside, L.
    Greaves, L.Roper, L.
    Gregson, L.Russell, E.
    Grenfell, L.Sandberg, L.
    Hamwee, B.Sawyer, L.
    Hardy of Wath, L.Scotland of Asthal, B.
    Harris of Greenwich, L.Scott of Needham Market, B.
    Harris of Richmond, B.Sharman, L.
    Harrison, L.Sharp of Guildford, B.
    Haskel, L.Shutt of Greetland, L
    Hilton of Eggardon, B.Simon, V.
    Hogg of Cumbernauld, L.Simon of Glaisdale, L.
    Hollis of Heigham, B.Smith of Clifton, L.
    Hooson, L.Smith of Gilmorehill, B.
    Howells of St Davids, B.Stoddart of Swindon, L.
    Howie of Troon, L.Stone of Blackheath, L.
    Hoyle, L.Taverne, L.
    Hughes of Woodside, L.Taylor of Blackburn, L
    Hunt of Chesterton, L.Thomas of Gresford, L.
    Hunt of Kings Heath, L.Thomas of Walliswood, B.
    Hutchinson of Lullington, L.Thomson of Monifieth, L.
    Irvine of Lairg, L. (LordThornton, B.


    Tomlinson, L.
    Islwyn, L.Tope, L.

    Tordoff, L.Wigoder, L.
    Turner of Camden, B.Wilberforce, L.
    Wilkins, B.
    Wallace of Saltaire, L.Williams of Elvel, L.
    Walmsley, B.Williams of Mostyn, L.
    Watson of Richmond, L.Winston, L.
    Whitty, L.Woolmer of Leeds, L.

    Resolved in the negative, and amendment disagreed to accordingly.

    4.35 p.m.

    moved Amendment No.2:

    Before Clause 1, insert the following new clauseߞ