International Criminal Court Bill [Lords]

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Mr. Blunt: I would like to be quite clear about the interpretation. If the Executive took that position, Parliament would not need to object unless it wanted to override the Executive because it wanted us to be bound by the amendment. If the Executive had decided against an amendment, would it be binding on British troops serving in another territory which accepted the crime under the amendment?

Mr. Cranston: No, that would not be the case. Article 121.5, which the hon. Gentleman himself read out, clearly states that the ICC cannot exercise any

    ``jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals''—

such as our armed forces—``or on its territory.'' If our nationals were to commit such a crime elsewhere, the veto would operate. The ICC would not have jurisdiction. The armed forces here and abroad, as well as any crimes defined by the amendment committed on our territory, would therefore be excluded. That makes the third part of the argument.

The hon. Gentleman raised other points about how the interpretation of crimes might change over time. The parameters of those crimes—we will discuss their substance later—are fairly clearly drawn. Furthermore, our international lawyers have significantly affected the development of international law. They have always been respected for their practical work, for example in the World Court, and for their writings. We can affect the interpretation of those crimes as set out in the 1998 statute.

The other point to note is that the 1998 statute incorporates crimes that are already part of our domestic law. In 1957 and 1995, the Conservative Governments—I give them credit for it—incorporated the Geneva conventions of 1949 and their protocols. Some of those crimes—we shall address this matter later—are already part of our domestic law. In that sense, we might well be said to have an influence on the interpretation of those crimes.

Those are the three important elements of the argument, but there is also the issue of aggression. The hon. Member for Chesham and Amersham (Mrs. Gillan) tempted me to discuss whether that relates to the current problem in the far east. There will be discussions in the future about the meaning of aggression, and our international lawyers will play an active role, as they have done already. Our current position is that it is for the Security Council to determine whether aggression has occurred.

In terms of the treaty, aggression would be a crime of individual responsibility. Our present position is that it is for the Security Council to determine whether there has been an act of aggression. Were there ever to be agreement on that issue in terms of the Rome statute, it would be put down on paper. Parties must agree under article 121, in which case the crime of aggression would become a matter of individual responsibility.

Mrs. Gillan: I appreciate the Solicitor-General's point, but I hope that this will not prove to be a case of false shyness. Will he tell us both his opinion and the Government's current thinking on the matter? It is important to elicit that while we are scrutinising the Bill. He is about to depart from the issue without telling us the Government's current thinking and whether he is lobbying for the inclusion of aggression.

Mr. Cranston: I should transgress the Standing Orders of the House were I to be tempted down that line because aggression is not in the Bill—we have deliberately omitted that issue. Let me instead address the matter of aggression being in the statute. The hon. and learned Member for Harborough and the hon. Member for Reigate referred to article 5.1(d) of the Rome statute, which mentions a crime of aggression. Significantly, article 5.2 states:

    ``The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining a 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.''

In other words, the only way in which a definition of aggression can be adopted under the Rome statute is by virtue of the amendment provisions. That returns us to article 121.5, which, as I said, gives the Executive a veto over any definition that might be adopted by other members.

3.15 pm

Mr. Blunt: I have followed the Solicitor-General's arguments carefully. What would be the effect of accepting amendment No. 36 alone and thereby removing the phrase

    ``(other than the crime of aggression)''

from the Bill? Given the arguments that the hon. and learned Gentleman has adduced, I cannot understand why that phrase is required.

Mr. Cranston: I think that the amendment is self-defeating, because the Bill excludes aggression from the definition of ICC crime. If the hon. Gentleman's amendment were accepted, clause 1(1) would state:

    ```ICC crime' means a crime . . . over which the ICC has jurisdiction in accordance with the ICC Statute.''

As a result, aggression would be included, but we are trying to provide that the Bill does not cover aggression at all.

Mr. Garnier: With the greatest of diffidence, I beg to disagree with the Solicitor-General. As he said, if the amendment of my hon. Friend the Member for Reigate were accepted, clause 1(1) would state:

    ```ICC crime' means a crime . . . over which the ICC has jurisdiction in accordance with the ICC Statute.''

Article 5.2 of the Rome statute makes it clear that the court does not have jurisdiction over an undefined crime. The crime of aggression has yet to be defined, and will not be defined until seven years after the ICC comes into existence. Therefore, the phrase in question simply adds unnecessary verbiage. It may be harmless, but it is not strictly necessary. If one construes clause 1(1) in conjunction with article 5.2 of the Rome statute, one surely concludes that the phrase which my hon. Friend seeks to delete does not help us.

It would be more interesting to establish the Government's definition of the crime of aggression, so that we can work out where they are coming from. The Solicitor-General is getting himself into a muddle if he believes that the phrase in question is important.

Mr. Cranston: It may be that there is a superabundance of caution. We are taking aggression out; the Bill will not deal with it. The hon. and learned Gentleman is right to say that, were the phrase in question to be omitted, there would still have to be agreement, pursuant to the treaty, if there were to be any effective crime of aggression in terms of the statute. However, the fact is that we are omitting aggression completely from the Bill.

Mr. Garnier: Perhaps we are simply having a semantic and therefore sterile argument. None the less, I do not want the Solicitor-General to get hung up on a hook of his own making. If the phrase in question is not necessary to give effect to the statute, there is no harm in agreeing to my hon. Friend's suggestion to delete it. If the Government are saying that it is essential, and that to omit it would destroy the purpose and effect of the statute and its translation into domestic law, that is an argument that I can understand and accept. However, according to a simple construction of article 5.2 of the statute and clause 1(1), the phrase is unnecessary until completion of the review conference, seven years after the coming into force of the ICC.

I repeat that this may be a sterile and semantic argument, and it might not make much difference whether the phrase is included or not, but I do not want the Solicitor-General to mislead himself or his hon. Friends into thinking that the words

    ``other than the crime of aggression''

are vital for the proper carriage of the Bill into law. They are not.

Mr. Cranston: All I can say is that aggression is covered by article 5. The court has jurisdiction but there must be agreement in future about what that means. It is subject to article 121 and would allow us to block or veto any agreement that we were not happy about. If agreement were to be reached during the negotiations it would be only as a result of an amendment pursuant to article 121 which contains the important paragraph 5; that allows the Executive to block the operation of that crime in respect of our nationals or of offences committed on our territory.

Mr. Garnier: Does the Solicitor-General accept that there is no such thing defined by the Rome statute as the crime of aggression? There may be an informal definition of the crime of aggression that he and I would understand—for example, the German invasion of Poland, or of Belgium in 1914. Will the hon. Gentleman accept that at present under the Rome statute, until the completion of the seven-year review conference, there is no definition of the crime of aggression, therefore there is no crime of aggression over which the ICC has jurisdiction, and thus the words in brackets are superfluous? That may not matter, but insofar as it does, will the Solicitor-General accept that the words are superfluous?

Mr. Cranston: In a sense, we return to the point made by the hon. Member for Reigate about the role of Parliament. Were we to accept the amendment, it would not be necessary to return to a parliamentary discussion of aggression, as it would be in the Bill.

Mr. Garnier rose—

The Chairman: Order. If we are to make progress, I am happy to allow the debate to continue in a free-flowing fashion, but interventions are becoming increasingly lengthy. I am happy for exchanges to take place, but would hon. Members please curtail the length of their interventions?

Mr. Garnier: I accept your words, Mr. Cook. An advantage of Committee stage, particularly of such a highly complicated Bill, is that the Solicitor-General and I can have these discussions, although they may not be edifying to anyone other than me.

If the words in brackets are omitted, it would not prevent the seven-year review conference or the assembly of state parties from arriving at a definition of the crime of aggression in seven years' time, when the Executive would introduce a Bill in the House to amend this Bill. The amendment tabled by my hon. Friend the Member for Reigate, which would delete the words in brackets, does not undermine the good sense of the Rome statute. Will the Solicitor-General come with us at least that far? We are not interfering with the Executive's prerogative and their freedom of negotiation at the seven-year conference.

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