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Armed Forces Bill

Perhaps I might clarify my position, as we are in Committee. I remind the Committee that Flight-Lieutenant Kendall-Smith was a medical person and there was no question of his being sent to Iraq to aim a gun at anybody. If he was performing his functions in Iraq, it would have been in tending the sick or wounded. So no question of his committing an unlawful act in itself could arise. His objection was that the whole enterprise was illegal. I very much accept the analysis of the noble Lord, Lord Kingsland, on this—that he was making himself party to something that could turn him, in an international criminal court, into a criminal. These amendments seek to leave it open to the defendant to argue not that he believed that a war was illegal but that it was, in fact, illegal. I do not accept that that is not judiciable in the courts of this country, as it is perfectly open to our courts to decide whether a war is or is not legal, and I do not think that the Attorney-General or Parliament can oust the courts from taking decisions of that nature. All that I suggest in these amendments is, not that a person’s belief is a defence in Clause 8, for example, for his desertion or refusal to serve, but that he should be able to argue in court in an appropriate case that the whole enterprise was illegal. I have no doubt that many of the defendants at Nuremberg had never pulled a trigger in an unlawful way or committed a murder directly, but some of them were there because they were engaged as members of the German high command in ordering troop dispositions and movements and so on. That is not necessarily illegal in itself but they were party to an illegal enterprise. That is the whole point. We should leave it open to a serviceman to raise that argument if he is so advised when charged, for example, with an offence under Clause 3 of failing in his duty or, under Clause 8, of desertion or refusal to serve.