---

Armed Forces Bill

My Lords, I thank the noble Lord. The noble and gallant Lord, Lord Craig, asked two questions about the definition of ““relevant service””. The first is about the meaning of operations, "““for the protection of life or property””." The second is about the meaning of ““military occupation””. Those expressions have very well established meanings and are used in the current definition of ““active service”” in each of the current service discipline Acts. An operation to protect life and property simply refers to where our Armed Forces may take part in operations abroad in response to a threat to people or to physical property of any sort, so long as the threat is great enough to justify the operation. Clear examples of this would be operations to evacuate civilians and safeguard their property in the event of a national disaster or a local conflict, such as occurred respectively in Montserrat or more recently in the Lebanon. The definition of ““property”” in the Bill, like that in the existing Acts, relates to clauses dealing with property in the UK, and so does not apply to this clause, which specifically relates to operations overseas. Military occupation involves the idea of control. It is therefore limited to where our forces, perhaps with allies, have established military control of a foreign area or country whether or not there are also civilian authorities. It does not therefore cover a situation in which we are present abroad either fighting to establish control or where we are there at the request of the foreign Government. For example, before reunification our Armed Forces in Berlin were one of the occupying forces. But in West Germany our forces were of course not in occupation of the country. On that basis, I hope that the noble and gallant Lord will withdraw his amendment. Under Amendment No. 18, it would not be desertion to go absent without leave to avoid service in a military occupation unless that occupation was fully in accordance with international law. We expect all members of the Armed Forces to be aware of their personal responsibilities under international law. They are trained in such important matters as the respect for property and the proper treatment of prisoners, enemy wounded and civilians caught up in the conflict. These personal responsibilities are ones for which a deliberate breach brings criminal liability. However, the decisions to go to war and to occupy a foreign state are matters for Government and Parliament, and are subject to democratic accountability. I would add that even Governments and Parliament find the issues of what international law requires or prohibits extremely difficult. I therefore believe that it would be wrong in principle to remove from members of the Armed Forces their obligations where they consider that an occupation is not in accordance with international law. There is another reason. Of course it is right that members of the Armed Forces, like all citizens, should consider the rights and wrongs of operations in which they take part. They should exercise their democratic rights on the basis of what Governments expect them to do. But it is another thing to provide that a member of the Armed Forces may in such a situation simply desert his colleagues and his duties. That in my view is the wrong thing to do. I believe that nearly all members of the Armed Forces would agree. To allow it would be tantamount to telling all other service personnel who stayed to do their duty that they were misguided. I cannot imagine what effect this could have on morale and on operational effectiveness. My noble friend Lord Judd has asked why Clause 1 refers to international law. He pointed out that the clause makes it an offence for service personnel captured by an enemy to assist the enemy in any way, "““not authorised by international law””." He said that this would require the prisoner to consider what international law requires and asked what objection there can therefore be to allowing members of the Armed Forces to decide whether an occupation is in accordance with international law. I have already indicated where I believe the difference lies. The responsibility for undertaking operations is not on the individual; it is a responsibility of states and a matter for democratic control. Captured members of the Armed Forces should not generally assist the enemy, and Clause 1 rightly makes that an offence. But the Geneva Conventions recognise that captors may require prisoners of war to do certain types of work, so it would be quite wrong for a prisoner to be guilty of assisting the enemy where he has simply done what international law allows his captors to require him to do. Our personnel are trained on their rights if captured and they will know when they may be required to work. My noble and learned friend Lord Archer of Sandwell asked whether a soldier can disobey an order to commit a crime. On this point I can give a reassurance to my noble and learned friend—a serviceman does not have to obey an order to commit a crime. However, Amendment No. 18 is different; it is not about crime. It allows a soldier to desert if he is serving in occupation of a foreign country and that occupation does not have the full backing of international law. I hope that, with the explanations and reassurances that I have given, the noble and gallant Lord will be persuaded to withdraw his amendment.