My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.
The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider
“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.
The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:
“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”
Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.
Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore,
under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.
That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.