International Criminal Court Bill [Lords]

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Mrs. Cheryl Gillan (Chesham and Amersham): I have a couple of points to add to those made by my hon. and learned Friend. I also thank my hon. Friends the Members for Reigate and for Aldershot (Mr. Howarth) for tabling the amendments, which have provided us with a vehicle for the wider exploration of the parameters of the Bill.

The crime of aggression does not feature in the Rome statute because agreement could not be reached on it at the conference. The conference covered only the three basic categories of genocide, war crimes and crimes against humanity. I hope that the Solicitor-General will outline the fundamental points of difference between the main protagonists. That will be useful in informing the Committee. I understand that the crime of aggression was not adopted because the definition was thought to be too wide. Perhaps the Solicitor-General could confirm that and reveal his thinking.

I believe that it was thought that any troop movement that led to one state feeling intimidated by another could be seen as an act of aggression, with all the difficulties accompanying that definition. The situation currently developing between China and Taiwan is perhaps an example on which the Solicitor-General could draw. In addition to the recent events involving the US plane and the detention of US serving officers in China, other developments have been reported in the press. Not the least of those have been potential arms sales to the island of Taiwan by Washington and the deployment of missiles by China.

I am trying to use a real example to show how one state's action could be deemed a form of aggression. The commander of the US Pacific forces has said that China has about 300 missiles that can strike Taiwan, and appears to be adding 50 more a year. He has commented:

``There will be a point at which that missile build-up will threaten the sufficient defence of Taiwan which it is the policy of the United States to maintain.''

When or how, in the Solicitor-General's view, would that point be reached? That information would help us to understand the problems surrounding the definition of aggression, which must interest hon. Members of all parties. I can see the Solicitor-General nodding. I hope that I did not give too arduous an example; it is the type of example that we need to consider, in the light of previous discussions of the Rome statute.

The Opposition are interested in the future prospects for including the crime of aggression in legislation covering the court. My hon. and learned Friend the Member for Harborough (Mr. Garnier) has already asked for a further explanation of what the Solicitor-General understands aggression to mean. Much long deliberation has taken place on the point and I want to know the Government's stance, and that of other states, on lobbying for the addition of such new crimes.

Back in 1951—before I was born—when the International Law Commission prepared the draft statute, consideration was postponed pending the adoption of a definition of aggression. The General Assembly of the United Nations adopted a definition of aggression in resolution 3314(XX) in 1974. However, work on the draft code of offences against the peace and security of mankind, which was undertaken from 1947 to 1953, was suspended again, awaiting the definition of ``aggression'', and resumed from 1983 to 1996, when the draft code was adopted. It has been a long and rocky road.

Given that not all states could agree on the definition of aggression, there must be some unease about the other three seemingly agreed categories of crime. In truth, they are not agreed; otherwise, countries such as the United States and France—which is announcing its intention to move forward very slowly, if at all—would not be closely examining their opt-outs. Difficulties, to which hon. Members have alluded during previous debates on the Bill, surround the contents of the existing statute.

Mr. Stephen Day (Cheadle): Will my hon. Friend seek to explore with the Solicitor-General why the Government do not reflect the attitude of France? Of all the potential or actual signatories to the agreement, France plays the most obviously similar role to that of Britain in terms of world affairs, both military and diplomatic.

Mrs. Gillan: My hon. Friend makes a valid point. I hope that the Committee will have the opportunity to discuss at length new clause 1, which we tabled to provide a vehicle to explore the opt-out clause. I understand that the Government Whip has expressed his willingness to negotiate about bringing certain new clauses further up the agenda in the timetabling of the Bill. We shall discuss that generous offer after the recess, to determine what will be most beneficial to the Committee. We have made a good start today, but it would be nice to ensure that we had time to consider in detail some of the meaty points that have already been raised during the scrutiny of the Bill. I am looking forward to fruitful discussions between the usual channels to enable us to discuss the opt-out clause. I see that the Whip is nodding from a sedentary position. It was a most generous offer on his part.

The Minister of State, Foreign and Commonwealth Office (Mr. John Battle): The hon. Lady should not wind up my hon. Friend the Member for Harrow, East.

Mrs. Gillan: It still comes as a bit of a shock when we try to co-operate on the business of the House, but I have taken part in so many debates in Westminster Hall that it almost comes as second nature to me, so I accept the Government's generous offer.

I have been diverted slightly from the point. I should like the Solicitor-General to clarify the problems that arose at the Rome conference in relation to the definition of aggression, and how he envisages their being overcome. Is he lobbying for aggression to be included, and if so, what is his understanding of it? If he is not lobbying for that, why not? Can he broaden his brief to give us an overview of how other countries are moving in this respect? There is great interest in those that have already ratified the Rome statute, and it would be interesting to know what discussions he has had with them and how they perceive the progress that has taken place.

I am grateful to my hon. Friends for giving me the vehicle that has enabled me to raise those few points.

3 pm

The Solicitor-General (Mr. Ross Cranston): My hon. Friend the Minister of State, Foreign and Commonwealth Office, said in the previous debate that we acknowledged that it was not desirable that crimes be introduced by the back door. I assure the Committee that the Bill, coupled with the statute, will not result in crimes being introduced in that way.

The argument is threefold. First, clause 1 states clearly:

``ICC crime means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Statute.''

I will return to the aggression point later, but that clause states that the crime must be a crime in accordance with the Rome statute of 17 July 1998. The crimes are set out in that statute and not in the statute as amended or as it might be changed in future. Clause 1 clearly defines ICC crimes and makes concrete the present position. I reiterate that the crimes are only those that appear in the 1998 statute: the Bill does not provide for future crimes.

Secondly, I will address the issue of amending the statute. As the hon. Member for Reigate pointed out, article 121 states that the statute can be amended after seven years. It is therefore possible for new crimes to be introduced. However, under our law, further legislation would be required to introduce new crimes here. That should answer the hon. Gentleman's point about safeguarding Parliament. If there is an amendment in future, and we agree with it, we must pass further legislation. We in Britain do not take the view taken in some countries that international law has immediate effect in domestic law. We take the view that international law must be incorporated through legislation. Assuming that a future amendment to the Rome statute is made and new crimes are created, there would also have to be an amendment to the Act that this Bill will become. Therefore if we agree with future revisions and the definitions of new crimes and want to include them in UK law, we will introduce further legislation. No new crimes will be created after the Bill is enacted without the matter returning to Parliament.

Thirdly, there is the question of what happens if we do not agree to amendments agreed between other countries? For example, we may disagree with the new crimes created under the Rome statute. The hon. Gentleman pointed out, rightly, that the amendment provisions are set out in article 121 and he mentioned the majorities involved. He quoted the key provision of that article: paragraph 5, which states:

``In respect of a State Party which has not accepted the amendment''—

in this case, the UK—

``the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals''—

for example, our armed forces—``or on its territory.'' The statute itself gives us protection. If other countries were to agree that a new crime should be covered by the statute and we did not like it, we could exercise our right under that article.

Mr. Blunt: I hope that the Solicitor-General is not muddling up the Executive and Parliament when he uses the term ``we''. It is for the Executive using their normal powers to decide whether they will accept the amendments to which article 121.5 of the statute refers. I am concerned that he is using ``we'' to mean Parliament. He rightly points out the statute contains protection, but it would not give Parliament the right to which he referred—only the Executive. Will he clarify which ``we'' he means?

Mr. Cranston: I use ``we'' to refer to the Executive. If we, the Executive, do not like the matter, that is the end of it. It does not even come before Parliament. The second thread of my argument, however, was that there must be an Act of Parliament for any treaty to be incorporated into our law. That would apply in this respect. A treaty does not become binding in domestic law because the Executive sign up to it. There must be legislation.

First, the crimes are frozen in time, at 1998. Secondly, if the Executive agree to a change, there must be an Act of Parliament. Things would not even get that far if the UK Executive said that they did not like the inclusion of a crime to which other countries had agreed. The protection afforded by article 121.5 of the statute would then come into effect.

 

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Prepared 10 April 2001