---

Armed Forces Bill

Two different situations are being described here which we must try to distinguish. The first is where, in operations, a soldier or other service man is asked to do something which is unlawful in our criminal law, such as pull the trigger too soon. In those circumstances, he is perfectly entitled in any court, whether civilian or a court martial, to raise the defence of an unlawful order. He cannot be required to commit murder. To that extent, I go along with the noble Lord, Lord Thomas of Gresford. Moreover, so far as committing murder in those circumstances is an offence in international criminal law, the international convention on torture, for example, should also be available as a defence in a court martial. However, there is another sense in which we can understand the amendment moved by the noble Lord, Lord Thomas of Gresford—the legality of the war itself. Is the war being legally pursued by the Government? That has become an extraordinarily important question since the International Criminal Court has been established. If the war a country is waging is indeed illegal, any soldier apprehended by a foreign country against which that war is being waged is himself subject to international criminal law. That has serious consequences for the soldier. However, we are in great difficulties if, as one of a number of defences a soldier can raise against an order being issued to him or in the context of obstruction, we provide that soldier with a straightforward defence of, ““My country is pursuing an illegal war””. Quite apart from the implications for military discipline, I do not believe that either an English civil court or a court martial has the jurisdiction to decide such a question of public international law. It is a matter on which, among other things, the Attorney-General has to pronounce. Once he has pronounced, to have any kind of effective fighting force, everyone involved in the battle has to accept the Attorney-General's judgment, whatever their private views about it. Although I entirely understand where the noble Lord, Lord Thomas of Gresford, is coming from, and I greatly sympathise with the sentiment and emotion behind the amendment, in so far as we are dealing with public international law and the question of the legality of the war itself, it is not right to incorporate a defence based on that in the military tribunal system.