International Criminal Court Bill [Lords]

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Mr. Garnier: Amendment No. 5 would make an exception for transfers that are involuntary on the part of the person transferred. Amendment No. 6 would make the same change at the end of clause 50(3), which reads:

    ``The Secretary of State shall set out in regulations the text of the Elements of Crimes referred to in subsection (2), as amended from time to time.''

New clause 6 addresses a related issue but is a self-standing new clause.

In essence, the linking concept is that of the involuntary, as opposed to the voluntary, transfer of populations or sections of populations, which is to be discussed in the light of article 8.2(b)(viii) on page 7 of the blue paperback volume of the Rome statute. Through the amendments, we are seeking to ascertain whether article 8.2(b)(viii) as incorporated into the Bill represents existing international law. The transfers referred to in that provision should be criminal only if they are involuntary on the part of the person or persons transferred.

There is a wider issue to be considered. The Government repeatedly sought to reassure the Opposition in another place and implicitly on Second Reading in the House of Commons that no new offences were being introduced by the passing of the Bill. The Government point out that it merely codifies existing international law. However, if it can be shown that the Rome statute has created a new area of international criminal law, our suspicions about the ICC's jurisdiction will—or, at the very least, might—have been confirmed.

My hon. Friend the Member for Chesham and Amersham will advance arguments on behalf of the Board of Deputies of British Jews, particularly in respect of its concerns about the occupied territories of the west bank and other parts of the middle east. However, I shall not descend into such detail. I shall concentrate on the Bill and the passages of concern in article 8.

Under paragraph 1,``The Court''—that is, the ICC—

    shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.''

That sets the context in which paragraph 2(b)(viii) is to be construed and considered, but I have some preliminary questions for the Minister. Presumably, the use of the words ``in particular'' is significant. What do they mean in the context of article 8.1? Is it suggested that the court should not have jurisdiction when the events described are not part of a plan, policy or large-scale commission of such crimes but are none the less heinous acts of which we would all heartily disapprove?

My study of the history of the extension of international jurisdiction leads me to suppose that it originated in co-operation between states against pirates, who were considered to be enemies of all people. Therefore, the Mediterranean states in mediaeval times and, I dare say, even under the Roman empire of the immediately pre- and post-Christian eras, quickly co-operated to deal with the scourge of pirates, who were thought to be broadly outside the law and therefore fair game. What is the purpose of the use of the words ``in particular'' and do they have any real significance as matters of law when one is construing for later paragraphs under article 8?

3.45 pm

In article 8.2(a) and (b) war crimes are defined as

    ``Grave breaches of the Geneva convention of August 1949, namely, any of the following acts against persons or property protected under the relevant Geneva convention''.

The article then lists eight sub-categories:

    ``(i) Wilful killing;

    (ii) Torture or inhuman treatment, including biological experiments;

    (iii) Wilfully causing great suffering, or serious injury to body or health;

    (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

    (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

    (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

    (vii) Unlawful deportation or transfer or unlawful confinement;

    (viii) Taking of hostages.''

Those are all situations, to use the language of the statute, that occurred during the second world war. It is not surprising that the 1949 Geneva convention grew out of the horrors of that war—particularly those perpetrated by the Nazi regime of Hitler's Germany and, to some extent, by the wartime Government of Japan. No civilised person would have been in the least surprised that the international community, through the United Nations and the conventions, decided to mark its abhorrence of such activities and to offer some form of international protection, insofar as it is possible to do so, to potential victims of inhumane conduct, as set out in article 8.2(a)(i) to (viii).

However, I do not understand why it is necessary to divide article 8 into two sections. Paragraph 2(b) goes on to describe:

    ``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts''.

We are concerned with sub-sub-paragraph (viii), which refers to:

    ``The transfer, directly or indirectly, by the Occupying Power of parts of its civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.''

It is difficult to qualify degrees of seriousness when talking about war crimes. They are all undeniably beastly. I do not know why we need a separation between

    ``Grave breaches of the Geneva convention''

and ``Other serious violations'', unless it is simply because ``Other serious violations'' under sub-paragraph (b) are not found within the Geneva convention.

I could accept that as a drafting point but there seems no reason why the Rome statute should restrict itself to the definitions under the Geneva convention and then set out further ones. Surely article 8 can define war crimes in its own way without the unnecessary and confusing division between sub-paragraphs (a) and (b) to paragraph 2? That may be a side point but I invite the Government to give their views on it.

I come to the guts of our amendment and the thrust of my argument: the transfer of populations by occupying powers, be they populations within occupied territory or

    ``the deportation or transfer of . . . the population of the occupied territory within or outside this territory.''

I am confused by some of the language used. As it will be imported into our domestic law, it is as well that we clarify what it means, even if only to provide a reference point under Pepper v. Hart—so that what I believe is called the competent court, which will receive the ICC demand for delivery of a potential defendant within our jurisdiction, can understand what we are on about.

Paragraph 2(b)(viii) contains the phrase ``directly or indirectly''. Am I right in thinking that indirect transfer by an occupying power of part of its civilian population into the territory occupied means the transfer of groups of people via a third place? For example, would a British occupying power that had taken control of country A and wished to move the indigenous population of country A either to another part of that country or to country B be guilty of indirect transfer if it moved that population, either within country A via country C, or to country B via country C? Would it really matter? We are concerned about the evil of transferring populations against their will. Presumably, we do not object to the free movement of people within the modern understanding of that term, especially within the European Union.

It must be assumed—and I hope that the Minister will help me—that the implication of the definition of a war crime for the purposes of paragraph 2(b)(viii) means the involuntary transfer by an occupying power of parts of its civilian population into the territory occupied, or the involuntary transfer of the population of the occupied territory. Clearly, the concept of involuntary movement is contained within the word ``deportation''. When the courts deport foreign citizens who have committed crimes in this country, they are the involuntary objects of that court order. However, if those citizens—or to be precise within the terms of article 8.2(b)(viii), if that group of people—voluntarily move from A to B, or A to B via C, there can be no war crime. The Bill should certainly make that clear if it is not clear in the statute, which is an instrument that we cannot amend.

Mr. Desmond Browne (Kilmarnock and Loudoun): Does the hon. and learned Gentleman accept that, in the context of a war or a war crime, there could be a crime committed if a population was forced upon an indigenous population to dilute its presence in a particular area? Those people may agree with the aggressor's attempt to do that, but the fact of doing it would be a crime perpetrated on the indigenous population and not on those who may move voluntarily.

Mr. Garnier: The answer to that is to be found within the hon. Gentleman's own question—he began by using the word ``forced''. If that is what article 8.2(b)(viii) means—the use of means to move a section of population involuntarily—I would understand.

The hon. Gentleman represents a Scottish seat. Let us take a ludicrous example and suppose that the Black Watch—a Scottish regiment—takes charge of a particular section of the Scottish borders. The Black Watch decides, because of the foot and mouth crisis, that anyone who has connections with Cumbria or Northumberland but who happens to live in Scotland ought to be moved into England, whether they like it or not. That would be an involuntary movement, because there is no doubt that those people of English descendent had long-term rights of residence. On the other hand, if the Black Watch let it be known that in order to disguise the movement of the English population, indigenous Scots should move south as part of what article 8.1 terms ``a plan or policy'', to move the non-Scottish population south of the border, they would be volunteers, although presumably they would also be war criminals rather than the victims of war crime.

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