Overseas Operations (Service Personnel and Veterans) Bill

Although the Government were not supportive of excluding further offences at that stage, they have continued to reflect on the very real concerns in both Houses that all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, should be excluded from the measures in Part 1. I can confirm to the House that the Government will therefore table an amendment in lieu of Motion A1 in the name of the noble Lord, Lord Robertson, to exclude war crimes also.

I am also aware that many continue to have concerns that the International Criminal Court can step in to investigate and prosecute United Kingdom Armed Forces personnel. I am happy to reassure on the perceived risk of ICC intervention. I invite your Lordships to consider the criteria that might surround an allegation that the complainant maintains is a war crime. The prosecutor would have to consider the case evidence referred by the service police and if, in the opinion of the prosecutor, the evidence was sufficient to indicate that a war crime had been committed and that there was a reasonable prospect of conviction, the prosecutor would consider the public interest in the case being prosecuted, including whether the accused was fit to stand trial. With the strong likelihood that a prosecutor would determine that the case should be prosecuted, subject to the consent of the Attorney-General, this could all proceed well within five years.

However, if, for some reason, the allegation did not arise until after five years but sufficient evidence still existed that a war crime had been committed, the prosecutor could still determine that the public interest in prosecuting such a serious offence would rebut the measures in Part 1 of the Bill. A prosecution would therefore proceed, again subject to the consent of the Attorney-General.

It is important to be clear that there are already many instances where a prosecutor could exercise discretion not to prosecute a case and the ICC would not intervene—for example, if the evidence was not deemed sufficient because it was not robust, or the recollections of the witnesses were unclear or in conflict with each other. In such circumstances, the prosecutor might likely conclude, understandably, that there was not a justiciable case, and the case would not proceed to prosecution. In this case, the prosecutor would not have to consider the public interest or the Bill’s measures. However, in this circumstance, although the International Criminal Court could theoretically seek to intervene, it is inconceivable to me that it would.

Similarly, if the prosecutor exercising the discretion he or she has under the existing prosecutorial guidance took the view that the accused was not fit to stand trial, and that a prosecution was not sustainable or not in the public interest for some other valid reason, I think it again inconceivable that the ICC would intervene. As such, we have to be very careful with the distinction between “could” and “would”. I am illustrating how, if a prosecutor decides for valid reasons not to prosecute, there is no reasonable basis to conclude that the ICC would consider that the UK is unwilling or unable to prosecute a particular case and would then intervene.

Furthermore, I also make clear that, in accordance with the International Criminal Court’s procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether it would be necessary for the ICC to seek to intervene in a state investigation or prosecution. In practice, if the Office of the Prosecutor were to raise issues with us, this would trigger a long and detailed preliminary examination of the situation, within which we would be consulted each step of the way. This would mean that we would have many opportunities to prevent UK service personnel being prosecuted at the International Criminal Court. We are confident that we would be able to show that the UK national system is both willing and able to conduct investigations and prosecutions, thus excluding the ICC’s jurisdiction over UK service personnel.

I have given that rather lengthy analysis and explanation because I seek to provide further reassurance to your Lordships on this particular issue. I believe that Commons Amendments 1A to 1Q go a very long way to addressing the concerns of this House in respect of relevant offences. I therefore urge that the House agrees to them, in lieu of Lords Amendment 1. I can confirm that the Government will not oppose Amendments 1R to 1U in the name of the noble Lord, Lord Robertson, noting that they will table a further amendment in lieu tomorrow. I beg to move.

Motion A1 (as an amendment to Motion A)