Cultural Property (Armed Conflicts) Bill [ Lords ] (First sitting)

Stephen Doughty Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 15th November 2016 Public Bill Committees

[Tracey Crouch]

The clause provides an additional form of individual criminal responsibility—that of commanders and superiors for the actions of their subordinates. That concept is one of the recognised principles of international law referred to in article 15, paragraph 2, of the second protocol, which parties to the protocol are obliged to implement.

The wording of the clause is based on article 28 of the statute of the International Criminal Court, which is regarded as an authoritative statement of the general principles of international law in relation to criminal liability. It mirrors the UK’s implementation of other international law, in particular the International Criminal Court Act 2001.

Subsection (1) provides that liability under the provision is to be treated as aiding and abetting in England, Wales and Northern Ireland, and being art and part in Scotland. That takes into account the different criminal law in Scotland. A distinction is drawn between the standards expected of military commanders in relation to the military forces under their command, and other superiors, such as Government officials. That distinction is made to recognise that the latter may not have the same degree of control over their subordinates.

In the case of a military commander, liability will arise only if he or she knew, or owing to the circumstances should have known, that his or her forces were committing or about to commit an offence. In contrast, a superior who is not a military commander will commit an offence only if they knew or consciously disregarded information clearly indicating that the subordinate was committing or about to commit an offence. Importantly, subsection (7) makes it clear that liability under the clause does not preclude any other criminal liability in relation to the same event, so a commander can still be prosecuted as a principal offender under clause 3 as well as under this clause.

The clause ensures that the UK adheres to the requirements of article 15, paragraph 2, of the second protocol, and complies with the general principles of international law in relation to criminal liability.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Ms Buck. I apologise for my late arrival in Committee this morning; I was at a Select Committee meeting.

I have some specific questions for the Minister about how the clause will be put into practice. I have had the pleasure of seeing UK armed forces being trained, at very close quarters. I saw infantry, artillery and tank training, and I have always been impressed by the teaching in practice of compliance with international law, including the Geneva conventions. I was in Canada last year at the BATUS training area—British Army Training Unit Suffield—where much of our heavy armour training is done. The Bill will clearly be very much applicable to conduct with respect to artillery, tanks and other vehicles capable of seriously damaging cultural property, so will the Minister say a little about how it will be incorporated into training and what plans the Ministry of Defence has to bring that about?

A point has been made about embedded forces, and situations when UK forces are in command of forces from other countries. The clause states that

“references to a military commander include a reference to a person effectively acting as a military commander”.

There have been circumstances where civilians from the Department for International Development and the Foreign Office have held senior command roles—for example, in the provincial reconstruction teams in Afghanistan. Will the Minister say a little about the practical arrangements for ensuring that personnel, whether they be military, foreign military or civilians acting in a military capacity, comply with the terms of the Bill?

--- Later in debate ---

[Tracey Crouch]

The clause sets the maximum penalty for section 3 offences and the associated ancillary offences. The second protocol obliges parties to make the criminal offences established in their domestic law to meet the obligations of paragraph 1 of article 15 “punishable by appropriate penalties”. A person found guilty of an offence under section 3, or a related ancillary offence, is liable on conviction on indictment to a prison term not exceeding 30 years. The maximum penalty introduced by the clause aligns with related provisions in both the International Criminal Court Act 2001 and its Scottish equivalent, and the Geneva Conventions Act 1957.

At first sight, it may seem surprising that offences of that nature, and ancillary offences, attract the same maximum penalty as war crimes covered by the relevant provisions of the 2001 Act, but that flows naturally from the seriousness with which those offences are considered under international law. It is worth noting and stressing that that is a maximum penalty. In practice, the sentence may be much shorter, or even a fine. The maximum sentence is likely to be reserved for only the most heinous crimes against cultural property. Each sentence must be considered case by case, and the Government believe that it should be left to the courts to determine the appropriate penalty based on the facts of the individual case.

The offence in clause 3 could be committed in a wide range of scenarios, with an equally wide variety of possible ancillary offences. I do not think it would be right for us to attempt to address that variety of scenarios by setting different penalties in the Bill. If an individual was responsible for deliberately destroying one of our national cultural landmarks during an armed conflict, I am sure we would wish to see the severest punishment. Likewise, we would want a similar sentence to be available for an individual who masterminded such destruction, or an army commander who ordered it as part of a campaign in full knowledge that the object in question was protected cultural property. That should also apply to UK nationals taking part in cultural destruction of a similar nature during an armed conflict overseas. Accordingly, the maximum penalty is considered appropriate for ancillary offences, as well as for the principal offence.

The clause reflects the seriousness with which the UK views serious violations of the second protocol. It is consistent with existing UK legislation and allows the UK successfully to meet its obligations under that protocol.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7

Consent to prosecutions

Question proposed, That the clause stand part of the Bill.

[Stephen Doughty]

I will ask a simple question; I am not an expert on these matters when it comes to Scottish law. Why does the clause make no reference to consent for prosecutions with regard to Scotland? It references only the Attorney General in England and Wales and, for Northern Ireland, the consent of the Director of Public Prosecutions for Northern Ireland. Is that particular quirk due to the way the Scottish legal system works or something else?

[Tracey Crouch]

I am not an expert on Scottish law, but I can answer that question. There is no equivalent provision in relation to Scotland as the position of the Lord Advocate, as master of the instance in relation to all prosecutions in Scotland, means that such a provision is unnecessary.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

The cultural emblem

Question proposed, That the clause stand part of the Bill.