Overseas Operations (Service Personnel and Veterans) Bill (Second sitting)

Mark Eastwood Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[The Chair]

Does any other Member wish to question the witnesses?

[Mark Eastwood (Dewsbury) (Con)]

Q Yes, Mr Mundell.

Thank you for coming to this session. We referred to Major Bob Campbell previously, and I wanted to follow on from the point made by Carole Monaghan and the evidence given by Major Campbell. He said that he gave evidence after several years of being investigated and reinvestigated, and he wrote to the International Criminal Court to ask them to prosecute him. The ICC actually refused that request. On Second Reading—I am sure you all witnessed the debate—a number of concerns were raised relating to veterans being hauled before the International Criminal Court as a result of the Bill being passed. Do you expect any veterans to be put before the International Criminal Court if the Bill goes ahead?

Dr Morgan: There is a risk that it could happen. I have read the Government’s comments on this, and they point out that prosecutors will remain independent, that it is not an absolute bar, and that it is not an absolute amnesty. All of that is true; but if, in a particular case, a war crime is alleged against a person and it is after five years, and the prosecutor decides not to bring a case because it is not sufficiently exceptional, then in that situation there must be a risk either that the International Criminal Court would seize jurisdiction, or that another member state could apply for extradition of that veteran.

Professor Ekins: I am not an expert on the International Criminal Court, but it is probably correct to stay that there is a risk. That said, prosecutors have a discretion as to whether to bring prosecutions even without the Bill. If a decision is taken not to prosecute in a particular case, then there is a risk that the ICC may take a different view. The ICC should not be taking over prosecutions if the UK—as I think it will even if the Bill were enacted—remains a country that does take its obligations seriously, that does investigate credible cases promptly and that does retain a system of deciding which cases to prosecute, rather than having a rule that they will all be prosecuted regardless of strength of evidence or other considerations such as the passage of time. There have, however, been types of cases in which the ICC has proved to be somewhat political in its decision making. It might turn on who the prosecutor is at the relevant time. It probably does increase the risk. If you ask me whether I expect there to be prosecutions before the ICC, I would say, “Not really,” but that is amateur speculation and not bankable.

John Larkin: I think the risk is modest because, as the Committee knows, offences that are excepted from the reach of clause 1 include genocide, crimes against humanity and war crimes as defined in articles 6, 7 and 8 of the Rome statute respectively. Given that those are not subject to the five-year exceptionality rule, I think it is quite likely that those more serious offences would be prosecuted domestically, because they would benefit from the five-year exceptionality filter.

[Mark Eastwood]

Q You said that there was an element of risk there, but when you look at what the International Criminal Court is prosecuting at the moment, and at cases it has done in the past, they generally relate to large-scale war crimes, genocide and that type of thing. Are we really suggesting that the International Criminal Court will get involved in cases that involve veterans? I have no option to expect the level of case, but are we expecting the International Criminal Court to get involved in, as Major Bob Campbell said, manslaughter and those types of incidents? Is that a realistic prospect?

Dr Morgan: It would have to fall within the definition of war crimes, so one hopes that it is unthinkable that credible evidence of this would ever be laid but, if it were—this is a hypothetical situation—if such evidence existed, because it related to events a long time before, perhaps long before five years, and if the sole reason for not prosecuting was the change that the Bill is making, namely that it was after the five years, then the risk is there. It is probably quite small because, as you say, the kind of situation that will trigger the ICC jurisdiction we all hope would never happen anyway, but that does not mean it cannot.

[Mark Eastwood]

Q Are they not looking at commanding officers, high-ranking soldiers, dictators and the higher level, rather than at the lower ranks as such?

Dr Morgan: The only point that I would add is that the fact that what is being proposed is internationally unusual I think increases the risk. I probably agree with Mr Larkin that the risk is modest, but I think the fact that it is a five-year time period, which to my knowledge is not visible in any other signatory state of the ICC, increases the risk.

Professor Ekins: The ICC should be focusing on allegations of atrocities, widespread wrongs and so on, rather than on what you might call manslaughter or questions of where the allegations are much more fine-grained, such as excessive force and so on, but there is a risk that the ICC does not always observe the limits that we apply in law to its jurisdiction. There have been instances of somewhat politically motivated decision making. There might still be a modest risk of the ICC going into the kinds of case that are likely to arrive at a place where a decision is made that it is not worth prosecuting because of particular circumstances, a lack of evidence and so on. The risk is probably quite—[Inaudible.] This will only arise if after five years a prosecutor decides that the public interest in prosecuting is not really there. I think it would only be possible for the ICC to justify intervention if there is a sufficiently strong case that would result in a conviction, and disagree about the public interest. That would sound like a surprising ground on which to debate a disagreement on whether a prosecution is warranted. I think it is possible but not very likely.

John Larkin: My point is that genocide, war crimes and crimes against humanity are not subject to the five-year time limit, so if the evidence emerges at eight years, for example, the process envisaged by this Bill—exceptionality assessment—simply does not apply; it will be determined as if it had occurred last week. That is an important point that is lost in legal—[Inaudible]—the international—[Inaudible]—of the Bill, but it has not been sufficiently appreciated that part 2 of the statute of Rome makes an exception for genocide, war crimes and crimes against humanity. They will be prosecuted if the evidence exists domestically, and therefore the risk of a lance corporal being hauled in front of the International Criminal Court seems to me to be fairly minimal.

[Mr Jones]

Q The Government have announced that they are going to bring similar legislation with reference to Northern Ireland, although the Northern Ireland situation would be retrospective. This is not retrospective; even though it is being pumped out in propaganda as being a thing that will protect all veterans from Iraq and Afghanistan, it clearly is not. If the Government are going to make the Northern Ireland one retrospective, is there not a case to be made for making these things retrospective?

Dr Morgan: indicated assent.