Global Policy Forum

By Richard Norton-Taylor

Top military commanders have warned ministers that the proposed new International Criminal Court championed by the foreign secretary, Robin Cook, could lead to British troops being prosecuted for war crimes. They believe it could also prevent British peacekeepers from carrying out their tasks effectively.

Their deep unease reflects a broader concern about regulations restricting the operation of the military, covering health, safety, working practices and non-discrimination, by what a senior defence source described yesterday as "rules made in places other than our capital city" - a reference to Brussels, above all.

The plan for the permanent, UN-sponsored, court was agreed at a conference in Rome in 1998. Legislation ito incorporate into British law the treaty setting up the court is about to pass through the Lords before going to the Commons.

"Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals", a senior defence source warned yesterday. He added that ministers were "very aware" of such a prospect. He said he was concerned in particular about conflicts and operations, short of a full-scale war, even - paradoxically - where British forces were engaged in support of the UN. Another senior defence source said that future rules of engagement could, for instance, prevent a British warship from attacking a hostile vessel until it was too late.

The jurisdiction of the proposed new international court extends to genocide, and crimes against humanity, as well as war crimes. In the treaty setting it up, war crimes are broadly defined and include: "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life, or injury to civilians, or damage to civilian objects, or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."

The bill also states that "a military commander...is responsible for offences committed by forces under his effective command and control...as a result of his failure to exercise control properly over such forces." This applies "where he either knew, or, owing to the circumstances at the time, should have known, that the forces were committing or about to commit such offences and he failed to take all necessary and reasonable measures within his power to prevent or repress their commission".

The treaty is not retrospective. However, Michael Caplan, a former lawyer to the Chilean ex-dictator, General Augusto Pinochet, questioned last month how Tony Blair would have been able to defend himself if he were charged with bombing targets in Kosovo in the knowledge that civilians might be killed.

The court will only be set up after the treaty has been ratified by 60 countries - so far only 29 have done so. Though Bill Clinton signed the treaty in the last days of his presidency, it is unlikely to pass through the US Senate, given fears that American soldiers might be targets of politically-motivated prosecutions. However, the Foreign Office insisted yesterday that the treaty establishing the court merely incorporates existing tenets of international law. Rules of engagement for British commanders were always consistent with international law such as the Geneva conventions, it said.

Safeguards have been inserted into the bill to prevent politically-motivated prosecutions, a spokesman said. In the first instance any investigation will be carried out by authorities in the country whose nationals are accused of wrongdoing.

Humanitarian agencies and human rights groups strongly back the new court. However, senior defence sources yesterday made clear that, in their view, the safeguards are not sufficient. "We have got to [ensure] there is a framework that does not prevent us from from doing what we set out to do", one senior official said. He said the new rules could make new types of weapons illegal.

In other walks of life, new regulations were being introduced with very good reason to make the workplace safer, he said. However, "when we see bits of European legislation [the military] should, not be forced to follow it slavishly". Another military source cited as an example rules which might prevent helicopters from exercising - or even training for rescue missions - in bad weather.

Sir Charles Guthrie, former chief of defence staff, and his successor, Admiral Sir Michael Boyce, recently expressed concern about what they see as an increasingly "litigious society". Defence officials privately accuse the government of deferring too much to political correctness.

Last month, Francis Maude, the shadow foreign secretary, claimed that the bill setting up the international court would allow officers to be prosecuted for crimes committed by their troops, even if those troops were not obeying orders at the time.