Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Berkeley of Knighton and Lord Browne of Ladyton

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Lord Browne of Ladyton (Lab) [V]]

My Lords, I support Amendment 14 and have considerable sympathy for the other amendments in this group, so I will speak generally about these issues. Like all the previous speakers on this group, I believe that this Bill, as presently drafted, undermines our obligations under the Geneva conventions and the UN Convention against Torture, which explicitly require that serious international crimes, such as torture, genocide and crimes against humanity, are investigated and prosecuted. I am deeply concerned about this Bill because it promotes the growing, dangerous idea that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May called the abandonment of the UK’s moral leadership on the world stage, and will add to the risk of more prolonged investigations of our Armed Forces, not fewer.

The Government have excluded a number of sexual offences listed in Schedule 1 from the scope of the Bill. During the Bill’s passage through the other place, the Government were asked on several occasions to explain why crimes such as torture and genocide remain within scope of the Bill, while offences of a sexual nature are excluded. In response, the Secretary of State and the Minister for Defence People and Veterans argued that violent and lethal acts are sometimes justified during combat, and these activities can expose service personnel to allegations of torture or other war crimes, whereas sexual violence can never be justified. The Minister repeated that explanation and expanded upon it at Second Reading.

I struggle to understand this explanation or to grasp why this distinction has been made. The best I can do is to summarise it in this way: the argument seems to be that the very nature of war or conflict justifies special rules to protect those engaged in conflict from allegations that they have breached the laws designed, sometimes solely but at least in part, to prevent just war and conflict from being used as an excuse for the perpetration of the most egregious crimes. This argument simply cannot be allowed to prevail.

The use of torture, like sexual offences, can never be justified. The legal definition of torture describes it in terms of the “intentional” or “deliberate” infliction of severe pain or suffering. In short, these acts are clearly distinct from legitimate use of force during combat. It is surely our duty to ensure that no British service personnel will be engaged in a situation which would put them at risk of credibly being accused of conduct meeting any of the relevant definitions of torture, genocide, crimes against humanity or war crimes.

In the event of a rare, credible allegation of such behaviour being levelled at British service personnel, they should be effectively investigated and, where there is sufficient reliable and credible evidence, prosecuted. That is my understanding of our obligations and what we should be seeking to support with no conditionality.

Ministers who deny that the triple lock will weaken our stance on such crimes dismiss these arguments with the rhetorical equivalent of a wave of the hand, even though a large and diverse coalition of military, legal and other experts have sustained their view that it will do exactly that. As your Lordships’ House has heard from every previous speaker, they can explain comprehensively why that is the case.

I have one final point and I make no apology that it is a point which has already been made by every one of the preceding speakers. What is effectively a de facto statute of limitations on the prosecution of crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. The noble and learned Lord, Lord Hope of Craighead, explained very clearly at Second Reading and repeated today that this not only makes investigation and possible prosecution by the ICC more likely, but also subjects them to the possibility of such investigations and prosecutions by any number of other jurisdictions.

There are three very specific public warnings of the risks of investigation and possible prosecution by the ICC. In addition to the letter to Ben Wallace, which has been referred to on a number of occasions, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it

“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in article 17 of the Statute.”

The Office of the Prosecutor also stated in the final report Situation in Iraq/UK published in December 2020, that it will continue to monitor the development of the Overseas Operations Bill and its impact, and may revisit its decision not to take action against the UK for war crimes committed in Iraq in the light of new facts or evidence. The increased risk of investigation or prosecution by the ICC also applies in respect of other past and future overseas operations.

We should all, Government and Parliament, remember that we have a solemn commitment to our Armed Forces given on ratification of the Rome statute of the International Criminal Court, that no member would ever be at risk of appearing in The Hague. If this Bill in its present form becomes an Act of Parliament, it will be a deliberate breach of this commitment and the ultimate irony is that it will expose our armed forces in the future to long and possibly repeated investigations.

[Lord Berkeley of Knighton (CB) [V]]

My Lords, the Minister, who has dealt with our concerns so graciously all afternoon, will probably realise that we now come to the winter of our discontent. It is here that I hope—if I may say so, with great respect—that she will consider even more carefully what is being said.

I support Amendments 14 and 36 in the name of my noble and learned friend Lord Hope of Craighead. He made the point—we hear it quite often in your Lordships’ House—that an undertaking from the Government to take seriously—to say that it is the intention of the Government—is not in itself a sufficient replacement for statute where something as vitally important as this is concerned.

Torture does not work—you hear what you want to hear—but it is also abhorrent, and, as the right reverend Prelate just said, it is immoral and uncivilised. We need for that reason to set an example which will protect our service men and women from possible torture if captured. I hope the noble Lord, Lord West, will forgive me if I quote a little further from what he has written:

“What is quite clear, and it was inculcated in us from day one of warfare training, is that ‘there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified’; it’s a principle that all members of our military must, and do, abide. We must be wary of creating a perception and certainly not a reality that this is not the case.”