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Armed Forces: Chain of Command

My Lords, I am extremely grateful to and thank the noble Lord, Lord Campbell of Alloway, for raising the matter and allowing me to participate in the debate. It enables me to bring to the House the case of Colonel Jorge Mendonca, who is the colonel of the Queen’s Lancashire Regiment. At once, I must declare an interest in the Queen’s Lancashire Regiment. Ever since I entered Parliament in 1974, I have been a friend of and taken a keen interest in the regiment. In Warrington, there is a regimental Sunday attended by civic heads, from Manchester in the south and Lancaster in the north to Blackpool in the west and Pendle in the east. I point that out only because it shows the deep feeling towards the regiment in the whole north-west. The matter concerns the unfortunate and untimely death of Baha Musa in custody in Iraq. That is appalling, and I make no excuse whatever for it. Those responsible must be brought to justice. However, the Queen’s Lancashire Regiment previously served in Basra with distinction and courage; it was mentioned in dispatches. For the first time for 40 years, a warrant officer received the Military Cross. Colonel Mendonca not only received the DSO but was made a full colonel. It is against that background that I want to examine the case. What is now hanging over him and other soldiers is that the case may be referred to the International Criminal Court. That court was not set up for that purpose. It was set up to deal with cases of genocide and with war criminals. That that gallant officer could be in the same dock as that in which Milosevic has appeared must be wrong in itself. As far as I understand it, the case against him is that he committed a war crime under the rules of the International Criminal Court, in that he failed to prevent soldiers under his command committing a war crime by assaulting Iraqi detainees on 13 September. On 13 September, the colonel was at least 13 miles away and was being shot at. Under Section 65(2) of the International Criminal Court Act 2001,"““A military commander . . .  is responsible for  . . . forces under his effective command and control or  . . . his effective authority and control””." That is extremely wide-ranging. It is a catch-all. Why should it end with the colonel? Why not with the brigadier? Why not with the commander-in-chief in Iraq? Why not with the chief of staff? Why not with the Minister, the Secretary of State or, if we carry on that line, the Prime Minister? That is very wide-ranging, and I express caution about it. Replying in the other place, a Defence Minister, my honourable friend Don Touhig, said about the International Criminal Court that it,"““will be able to take jurisdiction over an offence committed in the UK or by a UK citizen only if the domestic authorities are unable or unwilling to investigate or prosecute the case””.—[Official Report, Commons, 14/6/05; col. 237.]" That is what we are considering this morning and what I want to raise with my noble friend. If there is a case, surely we have the civil and military law on which it could be tried. I know that my noble friend is modest, but he has already gained a reputation as a person who takes decisions and is prepared to cut through red tape. I ask him to consider the matter. I know that the decision will not rest with him; the legal officers will take that decision. If they charge the colonel or other soldiers under the International Criminal Court, they will destroy the morale of all the soldiers, not just the Queen’s Lancashire Regiment but soldiers serving in Iraq, Afghanistan or any other theatre of war. I ask that common sense prevail in this matter. Indeed, I ask my noble friend to lift the cloud that is hanging over the head of that brave and gallant officer and that historic and well respected regiment, the Queen’s Lancashire Regiment. I hope that we can get that decision from him today.