Mr. Jeremy Corbyn (Islington, North): Does my right hon. Friend accept that there could be a serious loophole in the Bill unless there is a clear definition of the term "residence"? A person claiming to be in transit through the country could be just as big a criminal as someone who is resident here, but would escape justice.
Mr. Cook: I am deeply sceptical that our courts could be bamboozled as easily as my hon. Friend seems to suggest. The concept of residence is not novel in law, and I am sure that the courts will be confident and comfortable when it comes to dealing with it.
Mr. Mackinlay: Lord Archer of Sandwell, the former Labour Solicitor-General, took a different view of that in another place. In addition, the templates of other comparable statutes, such as the one passed in Canada, contain a provision for universal jurisdiction, rather than a residential qualification that is subject to interpretation. I hope that the Government will reconsider that in Committee.
A question has been raised about executive jurisdiction, and I want to ask my right hon. Friend why clause 21 allows the Secretary of State a discretion when it comes to surrendering a person sought by the ICC. My right hon. Friend rightly referred to the test and the pre-trial provisions, so should not a request from the ICC be acceded to, rather than subject to political discretion?
Mr. Cook: I shall respond first to my hon. Friend's question about the Secretary of State's discretion. The statute provides that that discretion is exercised only in consultation with the International Criminal Court. I hope that that will be some safeguard against my hon. Friend's anxieties.
On my hon. Friend's other point, let us be clear that we are not talking about people who have been indicted by the International Criminal Court. In any case in which people have been indicted by the International Criminal Court, the Bill will give us the authority to apprehend them and transfer them to The Hague for trial. In that sense, the International Criminal Court will have universal jurisdiction. The Bill provides for us to ensure that that jurisdiction applies in Britain.
Mr. Crispin Blunt (Reigate): I want to take the Foreign Secretary back to the achievements of Sir Franklin Berman and his team in their negotiations. The right hon. Gentleman mentioned the pre-trial chamber of judges and said, in reply to an intervention, that it would review a decision of a prosecutor who had, in effect, gone bad and was bringing prosecutions against countries which should not be brought. Will the Foreign Secretary confirm that it also works the other way, and that when prosecutions are not brought by the prosecutor, it is possible for people to appeal to the pre-trial
I should be grateful for the right hon. Gentleman's clarification, because I am not quite sure of the terms of article 15, which seems to indicate that the prosecutor and the pre-trial chamber must both decide whether there is a reasonable basis on which to proceed. It is not clear whether one can appeal to the pre-trial chamber for a prosecution to proceed when the prosecutor has decided not to do so.
Mr. Cook: I was asked about the safeguard on the prosecutor, on the basis that the prosecutor is not accountable. The pre-trial chamber is a safeguard against malicious or vexatious use of that power. Any state party can refer a matter to the International Criminal Court, and I welcome that. I can envisage circumstances in which we, as a state party, might wish to use that initiative to make a reference to the International Criminal Court. The Security Council can also make such a reference in circumstances in which it believes that the matter raises issues of threat to international peace and order.
I should like to conclude my description of the Bill. Although we are not obliged by the Rome statute to incorporate these offences into our domestic law, we believe that part V provides an important safeguard for British citizens. It means that in all circumstances Britain will be able to pursue any bona fide allegation of an offence by United Kingdom citizens through our domestic courts, rather than allowing proceedings to take their course through the International Criminal Court.
The central point of these provisions is to enable the International Criminal Court to launch prosecutions against war criminals who cannot be tried because the system of law and order in their state has collapsed or because the criminals themselves are too powerful to be held to account by their own people.
The Rome statute creates the post of an independent prosecutor who can launch both investigations and prosecutions. The independence of the prosecutor is an important point of principle which Britain fully supported. The problem with dispensing international justice through the creation of ad hoc tribunals is that agreement has to be sought every time through the Security Council. The independence of the prosecutor means that a prosecution can be initiated, even in circumstances in which one or other member of the Security Council might have sought to block it.
I stress that in creating this international remedy, there is no intention to release Governments from their obligation to maintain a domestic remedy for crimes against humanity; on the contrary, it is a fundamental principle of the Rome statute that the best place to try any crime is at the national level. The international community has not established a court so that its individual members can abdicate their responsibility to hold their citizens to account before domestic courts.
Mr. William Cash (Stone): On the compatibility of the international and the domestic courts, where is the line drawn between the two in respect of the mental test that is applicable to a criminal act? Will offences be judged
Mr. Cook: I am happy to assure the hon. Gentleman that the statement of the offences in the Bill and the statement of the offences in the statute of Rome--the basis on which the court will act--are identical. In schedule 8, the issue of intent is repeatedly stated in terms of the offences. The offences, as set out there, are identical to those that will be in the statute.
Since the hon. Member for Stone (Mr. Cash) asks about vexatious prosecution, perhaps I can turn to the how the Bill and the court may affect British service personnel. I am aware of the concerns that some service personnel may end up before the International Criminal Court. Those concerns are misplaced. We took great care during the Rome conference to make sure that the service personnel of the UK--or, for that matter, of our allies--could not be exposed to politically motivated prosecutions.
In the first place, the International Criminal Court has no authority to initiate an investigation where the allegations have already been examined by the appropriate national authorities. The International Criminal Court will be a complementary jurisdiction--that is to say, it will only step in when states have proved themselves incapable of investigating, or unwilling to investigate, a crime against humanity.
Members on both sides of the House should have a robust confidence that the British legal system has adequate remedies for crimes against humanity and can satisfactorily demonstrate to the International Criminal Court that any such allegations have been properly investigated and, where appropriate, prosecuted. In short, British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.
Mr. Brazier: I understand that. However, if there were to be a case involving special forces--or a covert operation in which the identity of the people concerned had to be kept secret not only for their protection but for that of their families--how would we be able to show a special prosecutor that an adequate investigation had been carried out while maintaining the veil of secrecy if allegations were made by an enemy?
Mr. Cook: It is no new legal principle that those who may be investigated may retain their anonymity. That is observed regularly in Britain and I do not see the problem there. However, the provisions on this matter in the Bill closely parallel the provisions in the statute setting up the war crimes tribunal for former Yugoslavia. The previous Government acceded to the war crimes tribunal for former Yugoslavia in the full knowledge that there were several thousand British service men in the area. I suspect that the hon. Gentleman will be aware that that included some of those to whom he has just referred.
Although the previous Government knew that those personnel were serving in former Yugoslavia and would come within the remit and scope of the war crimes tribunal, that did not prevent them--quite properly; I approve of what they did--from agreeing not only that the tribunal should be set up, but that Britain should fully co-operate with it. They were right to do so because they were confident that the circumstances would not arise in which British personnel would be exposed to a vexatious prosecution. If that were right in the case of former Yugoslavia and the British personnel on active service in difficult circumstances there, it is equally valid in respect of the Bill and the International Criminal Court.
Indeed, it is in the best interests of our armed forces that the Bill is enacted. The Bill ensures that all the International Criminal Court crimes are also offences under British law and can be investigated and prosecuted by British authorities. Without the Bill, our forces personnel would be at greater risk of prosecution before the International Criminal Court.
Nor does the creation of an international criminal court change the law under which our armed forces operate. The definitions of war crimes in the statute are already part of the well-established law of armed conflict. They are already binding on our armed forces and form part of the basic training of every British officer. Indeed, most of the wording on the crimes committed during combat is wording drawn from the Geneva Convention Acts 1957 and 1995, both of which were brought to Parliament by a Conservative Government.
I regret that the United States does not yet feel able to ratify a statute which it has signed. I fully appreciate the importance to the United States of the liberty and safety of its personnel. Britain also has many service personnel on duty abroad and, for the reasons I have given, we are confident that they are not at risk from mischievous prosecution.
We will continue, as a friend and ally, to encourage the United States to join the International Criminal Court because it will give us a mechanism to address the rogue states which concern us both. The most powerful argument is always by example and if we want to overcome the doubts within the United States, the best way to do so is to show our own confidence in the court by taking part in it.