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Sir Nicholas Lyell (North-East Bedfordshire): Supposing, heaven forbid, that we or the United States were ever in a position where we had to use nuclear weapons. Who would take the decision as to whether that offended against the ICC statute?
Mr. Cook: I am happy to reassure the right hon. and learned Gentleman that that matter was, indeed, debated in Rome. There is no offence within the Rome statute or before the International Criminal Court on the use of nuclear weapons per se, although the circumstances in which they are used are always a matter of judgment. However, that is a matter of judgment that any British Prime Minister or US President would have to exercise in the present state of international law. The statute does not make any change, nor is there any reference to nuclear weapons. The possession of nuclear weapons is not an offence.
We should ratify because the International Criminal Court will give practical expression to values and principles which I hope the whole House upholds: that
those who commit crime should not go unpunished and that justice should be available to the victim through legal process. Those are strong principles, but they also have a powerful practical effect.The reason why we have laws against theft is not primarily to punish the thief but to deter them from committing the crime. Too much blood has been spilt in recent decades by dictators confident that they would never be held to account. From now on, totalitarian regimes will know that they can be held to account for crimes against humanity. They will be no more above the rule of law than Milosevic. If the International Criminal Court deters just a single future Pol Pot, it will have justified its creation.
The other reason why every civilised society insists that crime must be punished by the rule of law is to prevent the victims or their relatives from taking the law into their own hands. In my experience, one of the greatest problems in drawing conflicts to a close is the cycle of revenge killings that perpetuate ethnic hatred. That produces a psychology in which the other ethnic community is held collectively responsible for the individual guilt of any of its members. By placing criminal responsibility where it rightly belongs--on the head of the individual--the International Criminal Court will help us break the mentality of revenge killing. It will make an important contribution to the process of reconciliation, without which there is no secure peace.
These are powerful assets. They are why the International Criminal Court is supported both abroad and at home. Not a single one of the responses to the draft Bill opposed it in principle. I hope that the House will be able tonight to show the same unity in giving a warm welcome to a Bill which offers the hope of justice to the victims of oppression and which only dictators need fear.
5.59 pm
Mr. Francis Maude (Horsham): I agree with much of what the Foreign Secretary said, especially about the broad principles that inform the Bill. As I said when we briefly discussed the matter in the debate on the Queen's Speech in December, we support the Bill in principle. When the right hon. Gentleman first made a statement on the subject, we accepted that there was a case for establishing such a court. We expressed some initial concerns about the statute of Rome, many of which remain unresolved. We perceive some serious flaws in the Bill, but we are willing to work with the Government to resolve them, so that it reaches the statute book in a form that all will find acceptable.
We welcome, as everybody must, measures that will allow those who have committed crimes against humanity to be brought to book. That is clearly common ground. In the other place, the Bill received the constructive support of the Opposition, and we will take the same approach here. Where we agree with it, we will say so; where we believe it can be improved, we will seek to amend it, as we have already done; and where there are parts with which we simply do not agree, we will oppose them.
Let us consider the case for having a permanent International Criminal Court. The Foreign Secretary has rightly said that in recent years there have been continued breaches of international law of a most hideous kind, including ethnic cleansing in former Yugoslavia, genocide in Rwanda and mass murder in East Timor. Indeed,
activities currently being sponsored by the Mugabe regime in Zimbabwe could well attract the attention of future tribunals.It is right that, in respect of those appalling activities, ad hoc tribunals should be investigating and trying individuals--but that is happening in relation to only two of those theatres. That demonstrates the case for a permanent court. Thousands of refugees from the ethnic conflict in Rwanda have been murdered in recent years, but the mandate of the tribunal is limited to events that occurred in 1994. Crimes committed since then will not be covered by the ICC either, as its remit will not be retrospective.
Mr. Winnick: Is it not odd that someone who has been held responsible for at least half a million murders--I am referring to the person who ruled Uganda until it was liberated in the late 1970s--lives peacefully in Saudi Arabia, occasionally giving press conferences when he is allowed to do so, and the international community shows not the slightest concern about his not being brought to justice?
Mr. Maude: That is a fair point. Such instances make the case for having a permanent International Criminal Court. I do not know off hand whether Saudi Arabia has signed and ratified the Rome statute. If so, the case that the hon. Gentleman cites would be capable of remedy. If not--and the reality is that the court will not have universal coverage for some time to come--it will remain unresolved.
Mr. Mike Gapes (Ilford, South): One reason why there will not be universal coverage is the attitude of the United States Administration. Will the right hon. Gentleman take the opportunity to urge that Administration, and the Senate, to ratify the treaty?
Mr. Maude: I will come to the American position in a while and deal explicitly with that point.
Against the clear deficiencies of the--currently two--ad hoc tribunals, we must balance the questioned effectiveness of the International Criminal Court. Serious commentators have questioned its effectiveness, and we believe that there are many deficiencies in the Bill. The case for a permanent court is founded on deterrence. It is said that the bad people who today think that they will get away with crimes against humanity will think again if they know that there is a court in permanent session with powers to pursue them wherever they are. In some cases, that may well be so, but it is not a panacea, any more than the existence of national courts guarantees that no one will commit murder in their own jurisdiction.
We must acknowledge the advantages of ad hoc tribunals, which can be flexible and are focused on a specific area, but on balance we accept that the argument for a properly working International Criminal Court, which will give a consistent form of justice, is persuasive.
Mr. Hogg: My right hon. Friend is familiar with the requirement of British law that a person may not be committed for trial unless there is prima facie evidence to support the accusation. It is clear that under the Rome
statute a person can be sent for trial abroad in the absence of any test of whether there is such prima facie evidence. That makes me uneasy, and I would be grateful for my right hon. Friend's views on it.
Mr. Maude: My right hon. and learned Friend is a practising lawyer, whereas I am a long-retired one: I have put my past behind me. As I understand it, the provision for a pre-trial panel of judges--
Mr. Hogg: It is outside our jurisdiction.
Mr. Maude: That is an absolutely fair point. No doubt my right hon. and learned Friend will want to be on the Committee that considers the Bill and pursue these matters in detail.
Our serious concerns about the detailed provisions lie not with the concept of a permanent court but with the Bill as it stands. As I understand it, 139 countries have signed the statute and 29 have ratified it. As the Foreign Secretary said, the court will not be established until 60 of the signatories have ratified. There is of course a big difference between signing and ratifying. Signing is merely an expression of some intention to ratify.
This is an important consideration in the light of the question asked by the hon. Member for Ilford, South (Mr. Gapes) about the United States. States that had not signed the treaty by the end of last year would have been excluded from detailed negotiation of the Rome statute in years to come. That is explicitly why America and Israel signed up at the last minute, on 31 December 2000.
We are still a long way short of the number of ratifications needed to set up the court. Australia signed up but has not yet even begun to introduce a Bill to ratify. Japan has not even signed. Israel signed but laid down many conditions.
Mr. Robin Cook: I want to put in a good word for Japan and one or two other countries that the right hon. Gentleman has cited. Japan has not signed because it has no technical legal position to do so: it can only accede. It intends to accede, and will effectively sign and ratify at the same time. There is no lack of intention to join.
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