International Criminal Court Bill [Lords]

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Mr. Cranston: I accept what the hon. and learned Member said, but the problem is that, if the words were removed, and there were to be agreement about aggression, without new legislation we would have to surrender nationals of other states. Even though we had not accepted in an Act of Parliament the definition of aggression, we would have to surrender nationals of other states in accordance with that definition.

Mr. Garnier: Not before the seven-year conference.

Mr. Cranston: That is absolutely right; there must be agreement. I posit a situation where there is agreement about a definition of aggression but it has not been implemented in our law. None the less, we would have to surrender nationals of other jurisdictions. That is why we take the view that it is better to separate the crime of aggression from the definition of ICC crime.

Mr. Blunt: My intervention might be important in determining whether I press the amendment. Is the Solicitor-General saying that, if amendment No. 36 is accepted but amendment No. 37 is not, the effect would be that the United Kingdom would then be subject, without any further reference to Parliament, to a definition of the crime of aggression that might be agreed at the review conference in, say, seven years?

Mr. Cranston: There is a slight gloss on that. We would not be subject to the definition generally, but we would be subject to it in terms of surrendering nationals of other jurisdictions. That is the point.

The crime of aggression is not in the Bill, but it is in article 5 of the statute. It is not defined; there will have to be discussions about it in the future. If an agreement is reached about the definition of aggression with which we do not agree, we would have the right, under article 121.5, to say that we do not agree. If we agree, we would have to introduce legislation to implement such an agreement. However, in the absence of legislation, we would still be bound in a limited way, in that we would have to surrender nationals of other jurisdictions who are in this country, if the ICC issued a warrant in respect of the crime of aggression.

Mrs. Gillan: If that is the case, can the Solicitor-General tell me what has happened to the definition of aggression adopted by the General Assembly of the United Nations in the resolution that I mentioned earlier—3314(XX), adopted in 1974—and the draft code that was adopted in 1996, which covered aggression? The code's future status appears to be uncertain, particularly in light of the elements of crime. I understand that a lengthy paper was circulated at the Rome conference. For the purpose of better understanding, what is the status of those definitions that were adopted in the past vis-a-vis the statute?

Mr. Cranston: As I said, we take the view that it is up to the UN Security Council, in accordance with the charter, to determine aggression. That is our approach. The ICC preparatory commission did not adopt the resolution and draft code.

I shall summarise what I have said so far. As my hon. Friend the Minister of State, Foreign and Commonwealth Office said earlier, we appreciate the concerns that have been raised by Opposition Members. However, we take the view that there is adequate protection in the Bill and in the Rome statute. The definition of ICC crime is frozen in time. If crimes are added, there will have to be an amendment, according to article 121. Paragraph 5 of article 121 is an important provision that allows the Executive to say that we do not agree. If we do not agree, our nationals are not bound and, in terms of acts committed on this territory, the ICC has no jurisdiction and so there is that protection. Even if the Executive agree about some future crime—for example, aggression—Parliament must legislate. There is that protection that concerned the hon. Member for Reigate. There is adequate protection from those four aspects in both the Bill and the statute.

3.30 pm

Mr. Blunt: We have had an interesting debate. I hope that the Solicitor-General will listen carefully to what I say to ensure that I have not misunderstood the meaning of the provisions. The Government have not told us what they understand aggression to be. We have had no information about why it was not possible in the negotiations that formed the Rome statute to come to an agreement about aggression, where the areas of difficulty are and whether it is the UK that is having great difficulty with this or some of the other parties to the agreement. We therefore have to discuss this in a vacuum in that we do not know how aggression is defined. This is an important issue that could affect the UK.

The Solicitor-General said that perhaps one of the reasons that the exception

``other than the crime of aggression''

was in the Bill was a superabundance of caution. If we need a superabundance of caution on the issue of aggression, a superabundance of caution on other issues is called for and so my amendment No. 37 should be taken with amendment No. 36 to include in the Bill any amendments to articles 5, 6, 7 and 8. As I understand it, that would cover the entire position and it would make it explicit in clause 1 that if there were any changes to those articles, which would obviously include a change to article 5.2 with the definition of aggression, the position of Parliament would be protected.

The Government may argue that that is not necessary because there are protections elsewhere in the Bill. The Solicitor-General did not take us through the detail of where those protections come from on amendment No. 37 and he addressed his remarks almost exclusively to amendment No. 36. As I understand his presentation, if we take out the phrase

``other than a crime of aggression''

on its own, if there were an agreement about the definition of aggression and a review conference in seven years' time, the only people whom we would protect would be foreigners in the UK who are sought by the ICC to be arraigned for trial on the crime of aggression. It seems rather odd to seek to put in the protection of the law in that instance.

If we are satisfied that the ICC is an institution in which we can have great confidence and that it will work in the way that we want it to work, if an agreement is reached about the definition of aggression in seven years' time by seven eighths of its members, why will we stand in the way of allowing it to issue a warrant for the arrest of a non-British subject in the UK who is guilty of the crime of aggression? It seems peculiar for the Government to come forward with that argument. Why are we seeking to give a non-British subject protection from the ICC in that way?

The position would be infinitely clearer if amendments Nos. 36 and 37 were accepted. Amendment No. 36 might be otiose because, if we leave in

``other than the crime of aggression'',

the only effect would be to protect foreigners in the circumstances that were described by the Solicitor-General. Amendment No. 37 would make it clear at the beginning of the Bill exactly what powers would be left for Parliament if articles 5, 6, 7 and 8 were amended. I presume that a definition of the act of aggression would be included, although everything would be covered. The amendment would ensure clarity in the first clause of the Bill, which would mean that we would not have to go to clause 50, and its reference to schedule 8, and get into the grey area of interpretation from a court whose judges may not act in the way that we expect. Therefore, I am content to withdraw amendment No. 36, but I want to press amendment No. 37 because it would achieve the desired effect.

Mr. Battle: On a point of order, Mr. Cook. I appreciate the way in which the Opposition have tabled their amendments, which have been both probing and attempts to change the wording. However, we must be clear about whether amendments, if they are grouped, can be split and voted on separately. I did not realise, and the usual practice has not been, that Members could move amendments and suggest that some be voted on and others not be voted on as a pick and mix. I would like your guidance on that question.

The Chairman: Such choice is normal practice. The only stipulation is that the amendments should be dealt with at the point where they apply in the Bill. It is normal practice for some amendments in a group to be withdrawn and others forced to a vote.

Mr. Blunt: Let me make it clear. We have concluded the debate on the amendments and, if I were pressing amendment No. 36 to a Division, now would be the time to do that. I do not want to do that, but I will press amendment No. 37 to a Division. I understand that now is not the time for that, because it comes at the end of clause 1 and not with amendment No. 36. I hope that my intentions are clear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Garnier: I beg to move amendment No. 5, in page 1, line 9, after `aggression', insert

`, and other than the transfers referred to in Article 8.2(b)(viii), except where those transfers are involuntary on the part of the person transferred.'.

The Chairman: With this we may discuss the following: Amendment No. 6, in clause 50, page 26, line 16, at end insert

`, other than the transfers referred to in Article 8.2(b)(viii) except where those transfers are involuntary on the part of the persons transferred.'.

New clause 6—Necessary conditions for Act to have effect—

`This Act shall have effect subject to—

(a) Her Majesty's Government having made an effort in good faith to obtain a correction to the tests in Arabic, Chinese, English, French, Russian and Spanish of Article 8.2( )(viii), by way of a proces-verbal of rectification to be issued by the Secretary General of the United Nations as depositary of the ICC Statute after communicating the proposed correction to all interested states, specifying that the transfers referred to in Article 8.2(b)(viii) are criminal only if those transfers are involuntary on the part of the persons transferred, and

(b) failing success in that effort, Her Majesty's Government having made efforts in good faith to obtain an amendment to the Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000, similarly specifying that the transfers referred to in Article 8.2(b)(viii) are criminal only if those transfers are involuntary on the part of the persons transferred, and to obtain a similar specification in the Elements of Crimes to be adopted in accordance with Article 9, and

(c) in that case, Her Majesty's Government having, when ratifying the ICC Statute, made a declaration to the effect that the United Kingdom regards the transfers referred to in Article 8.2(b)(viii) as criminal only if those transfers are involuntary on the part of the persons transferred, and not in any case withdrawing that declaration.'.

 

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Prepared 10 April 2001