Standing Committee D
Tuesday 10 April 2001
[Mr. Frank Cook in the Chair]
The ICC and the ICC Statute
Amendment moved [this day]: No. 36, in page 1, line 9, leave out
`(other than the crime of aggression)'.[Mr. Blunt.]
The Chairman: I remind the Committee that with this we are taking amendment No. 37, in page 1, line 10, at end insert
`other than crimes arising out of amendments to Articles 5, 6, 7 and 8 of the ICC Statute'.
Mr. Crispin Blunt (Reigate): I am still recovering from the allegation made by the hon. Member for Harrow, East (Mr. McNulty) this morning that I was representing the Liberal Democrats. I am unsure whether that was meant to be a compliment or otherwise
Mr. Tony McNulty (Harrow, East): An insult.
Mr. Blunt: That remark should be reported to the hon. Gentleman's party leadership.
I would like to discuss the detail of the amendments, having focused on the wider reasons for them. I shall try to anticipate the arguments of the Solicitor-General, who I understand is replying to the debate, as to why the amendments are not relevant. I suspect that he will draw my attention to clause 50 and schedule 8, but I have examined those parts of the Bill, and I do not understand how they can be consistent with the phrase ``other than . . . aggression'' in clause 1. Amendment No. 36 is intended to remove that phrase, and amendment No. 37 seeks to insert a reference to articles 5, 6, 7 and 8 of the ICC statute. If the hon. and learned Gentleman intends to rely on clause 50 and schedule 8, I can tell him that those provisions would cover acts of aggression as well. If they are reliable, it should not be necessary to include the phrase
``other than the crime of aggression''
in clause 1.
However, if the hon. and learned Gentleman is not certain whether one can rely on schedule 8, perhaps he is seeking to ensure that removal of the acts of aggression exception would require a change in the law by this House. The ``crime of aggression'' exception in clause 1 is not a reliable way of ensuring that. It would be much better for Parliament if amendments Nos. 36 and 37 were accepted and the position was absolutely clear. That would cover the entire position, so we would not have to rely on the language of clause 50 and schedule 8, which is at best slightly equivocal, particularly in terms of the future determination of the provisions by United Kingdom courts.
Clause 50 gives interpretative rather than prescriptive powers to the courts. For example, clause 50(2) states:
``In interpreting and applying the provisions of those articles the court shall take into account . . . any relevant Elements of Crimes adopted in accordance with article 9''.
Clause 50(5) states:
``Account may also be taken of other relevant international jurisprudence''
Perhaps a United Kingdom court would consider a change accepted by the Government under clause 50 and schedule 8 to be binding on the United Kingdom regardless of what had actually happened in Parliament.
To make my position explicit, I am asking the Government to accept amendments Nos. 36 and 37. They make it clear beyond peradventure that any changes have to be not only negotiated by the Government but approved by Parliament. I understand that the Bill is intended to ensure that that is the case, and I want the position to be clear, which is the reason for the amendment.
Mr. Edward Garnier (Harborough): I shall speak briefly in support of the arguments put by my hon. Friend the Member for Reigate (Mr. Blunt). I trust that amendments to the Rome statute made under article 121, pursuant to review under article 123, will have to be ratified by any state party prepared to be bound by them. Amendment No. 36 would omit the phrase
``other than the crime of aggression''.
We have to read article 5 to discover what is meant by ``the crime of aggression''. Paragraph 1(d) of article 5 states that, in accordance with the Rome statute, the International Criminal Court has jurisdiction for the crime of aggression. Paragraph 2 states:
``The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.''
It would be interesting to hear from the Solicitor-General what the Government's current view on the crime of aggression is. At the review conference to be held seven years after the ICC comes into existence, the then Government's view may be different, but it would none the less be interesting to hear from the hon. and learned Gentleman how the present Government are likely to define it.
War is rarely, if ever, started or initiated by democracies. It is highly unlikely that the present Government or a successor Conservative Government would be an aggressor in the sense that I envisage that term being defined under article 5. It is the totalitarian regimes who will be guilty of the crime of aggression, and I doubt whether such regimes are likely to be susceptible to the jurisdiction of the ICC. Have any totalitarian regimes signed up to the Rome statute? If they had, would they ratify it? If not, is anything to be gained by including the crime of aggression in that statute?
The treaty that makes the Rome statute part of our domestic law is not susceptible to amendment. Treaties and treaty making in the United Kingdom is a matter of prerogative; it is not a matter for Parliament. We cannot amend treaties; we can amend only legislationeither existing legislation or Bills such as that before us. Our debate is slightly Ruritanian, because at the same time we are dealing with the statute of Rome, which we cannot amend, and the ICC Bill, which we can amend. What is the purpose of amending a Bill that cannot itself amend the treaty? Does the Solicitor-General have an answer to that? We are going through an interesting exercise. We go through the pretence of a parliamentary process, which is necessary for ratification, yet we cannot bite on the base treaty. We shall have to wait until more than 60 countries have ratified the Rome statute before we can get to grips with the definition of the crime of aggression.
In so far as we are able to discuss the matter intelligently, will the Solicitor-General let us know whether his definition of the crime of aggression applies not only to statesthe wagers of war on a national basisbut, as I assume, to individual military or other political commanders of troops? Will a commander be held liable under the statute of Rome for an act of aggression in an existing war? I am not talking about the German invasion of Belgium, Czechoslovakia or Poland in 1939, but about, for example, an allied military or political leader in an existing war ordering his troops to take part in an act of aggression against the original aggressor or a third party that has given aid or comfort to the original aggressor. Under the Government's definition, would such a commander be liable under article 5 for the crime of aggression?
I hope that the Solicitor-General can answer on another issue. I assume that the crime of aggression, when it is defined at the first review conference seven years after the coming into existence of the ICC, will bite only on countries that have signed up to the review process. They may be members of the ICC assembly of states parties. Although they will be willing to accept the existence of the ICC and, to a limited extent, its jurisdiction over their own territory and citizens, they may not accept the majority view on the crime of aggression.
France and, I think, Israel and several other signatories to the statute have already entered reservations. That suggests that they may not want, as the Foreign Secretary does, to travel the whole journey and sign up to everything in the statute of Rome. If such countries are not prepared to sign up to everything, will they be bound by the majority's definition of the crime of aggression even if they are not part of that majority? Will their citizens, military or civilian, be accountable to the ICC for what the majority believes aggression to be? If so, to what extent will the purpose of the statute of Rome be undermined and destroyed, and its full effects inhibited, by minority countries taking a different view on aggression?
As I said at the outset, we are dealing with something that we cannot amend, so our exercise is slightly unreal. None the less, we must think seven years forward from the complete ratification, seven years from the ICC's coming into existence. My hon. Friend the Member for Reigate has initiated a valuable debate on the constitutional relationship between this Parliament, the assembly of states parties and the statute itself.
If, at the review conference seven years from the coming into existence of the ICC, other crime or the crime of aggression is defined, will such definitions be brought into English and Welsh jurisprudence and jurisdiction through some statutory instrument? Will they bite on our citizens and become part of our law only by Act of Parliament? That would be achieved by amending the statute that the Bill will no doubt have become by then. Will it be a matter for prerogative, so that the Government advising Her Majesty can simply say that the treaty is amended to reflect the majority definition of a crime of aggression, and that that bites upon us because we signed the original agreement in 1999?
The matter is of some constitutional importance because, as my hon. Friend said, it cannot be right that the criminal law can be amended without the permission of both Houses of Parliament, especially when we are exporting jurisdiction in this way to an extra-territorial court. I trust that the Solicitor-General will be able to reassure the Committee that when the crime of aggression comes to be defined at the first review conference, it will be defined in such a way that that definition will have to be part of a correcting piece of legislation, which this House will decide on, so that the citizens of England and WalesScotland now has its own arrangementscannot be laid open to charges under the amended ICC statute without Parliament's having given its permission for that amended definition to come into English law.
The proposition can be simply stated, but the consequences of getting it wrong would be huge. We can learn a great deal from this about the Government's attitude towards Parliament, towards those citizens who elected them, and towards those who did not elect them. I look forward with considerable interest to hearing what the Solicitor-General has to say in answer to the arguments on those issues.
Amendment No. 37, on which my hon. Friend the Member for Reigate also spoke, deals with broadly similar issues. The guts of the ICC statutethat is to say, the crimes within the jurisdiction of the court: crimes of genocide, crimes against humanity, war crimes and the yet-to-be-defined crime of aggressionare to be found in articles 5, 6, 7 and 8. Article 6 defines genocide. These are not new definitions; they come from earlier treaties. Crimes against humanity are dealt with under article 7, and under article 8 there is a long list of what are described as war crimes.
The derivation of each of the definitions to be found in those articles is not exactly aged, but there is some precedent. In the debates in the other place, Lord Williams of Mostyn set out the derivation of those definitions. I do not complain about those for a moment. However, I want the Solicitor-General to reassure the Committee about any amendments to the base treatythe statutethat touch upon our criminal law and affect the citizens of this country, be they military or civilian. I am particularly concerned about the military, as we have had both formal and informal representations from former and current members of the armed forces about the effect of this legislation on their abilityin the case of current, serving membersto wage legitimate war on behalf of the United Kingdom. We wish to be able to reassure them that the Bill that we are discussing, and the statutes that will be incorporated, in part, into our domestic law, will not inhibit or in any way damage their ability to carry out their lawful duties on behalf of the people of this country in time of war.
As the Minister said, these are complicated issues. I do not disagree with him. However, they are, I think, capable of easy explanation. I do not doubt that the Solicitor-General, with all his experience of banking law and similar aspects of the civil law, will be able to turn his finely tuned mind to this aspect of international criminal law, to the benefit not only of the Committee but of the nation, which eagerly awaits his response.