International Criminal Court Bill [Lords]

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Mr. Browne: My apologies for not having made my position clear in my intervention. The situation to which I refer need not be fictional or imaginary. Everyone in this Room knows of recent events in Europe or Africa in which aggressors have moved populations who are sympathetic to their aggression voluntarily into areas that were occupied by ethnic minority groups to dilute that population and influence the Government in that area. The hon. Gentleman's amendment would allow that sort of behaviour as long as those who wanted to move did so voluntarily, even when those who were moved in on did not want to accept them.

Mr. Garnier: That is the view of a Government Back Bencher, and a perfectly legitimate one to hold. However, I would like to know what the Government's view is, as they have the carriage of the Bill. If their view coincides with that of the hon. Gentleman, fair enough. I avoided giving specific contemporary examples because the ICC is not yet up and running and it will be some time before it is. I am sure that a Foreign Office Minister would also want to avoid giving such examples because they might prove embarrassing, which he would not want as a matter of foreign policy.

I am worried that activities that may be caught by the statute of Rome and are translated into our own law may have unforeseen or embarrassing consequences. The hon. Member for Kilmarnock and Loudoun (Mr. Browne) has raised a legitimate point. Perhaps the Minister will respond.

Mr. Battle: Article 49 of the fourth Geneva convention refers to deportation—that is, as the hon. and learned Member for Harborough has rightly said, involuntary movement of people. However, it also refers to transfer, which is movement with consent, perhaps, of the civilian population into the occupied area. Voluntary and involuntary movement are already covered by international law, which is the basis of the statute to which article 8.2(b)(viii) refers. I hope that that is helpful.

Mr. Garnier: It is helpful, but it does not answer the entire problem because we have to deal with an unamendable statute, parts of which are being introduced into English and Welsh domestic law. I can bite only on the Bill, not on the statute. However, I have to understand the statute of Rome, which is being sucked into British law, which is amendable according to the will of the Committee and of Parliament as a whole.

A particular example that I shall use is that of refugee populations at the end of the second world war in Europe. In May 1945, the Allied forces moved up the Italian peninsula and east through France and southern Germany, while the Soviet forces moved through what was then Yugoslavia. All three groups of people were heading towards Vienna, which was the prize: the Soviet Russians wanted to get as far west as they could before the peace was drawn up and the Allies wanted to prevent them from getting too far west and, especially, wanted to keep Vienna and the rest of Austria this side of the iron curtain, which was yet to be drawn up. There were in that crucible millions of refugees who had been displaced from eastern Europe. They included former White Russians, and citizens of Yugoslavia who may have been Nazi sympathisers and fought with the Germans against the partisans of Yugoslavia. There were any number of people fleeing west from the encroaching domination of the Soviet Union. That mobile population was being pushed and pulled in all directions by the movement of Allied and Soviet forces.

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There came a time when, if there was to be a war between the Allied forces and the Soviet Union in May 1945 or shortly afterwards, the decks would have had to be cleared in northern Italy and Austria so that the civilian populations were not in the way of the potentially warring factions. The Allies moved the refugee populations—they stuck them on trains and took them into occupied territory. Some moved further south behind Allied lines into Italy, while others, particularly those who had sympathised with the Nazis, were moved into the path of the advancing Soviets. They would have been deported or transferred into occupied territory outside their own territory. For example, Croatians who had supported the Nazis were removed from northern Italy and Austria and went well back in Yugoslavia, where Tito and his forces would have picked them up. Many such people came to an ugly end without a trial in the sense that the Minister or I would recognise.

That is an ancient example, which happened over 60 years ago. However, does the Minister think that, by translating article 8.2(b)(viii) into our domestic law, the movement of such populations by the Allied forces would amount to a war crime? I ask that question irrespective of the motive for such movement, although the primary motive in that case was to clear the decks to allow a clear field of battle if the Soviets attacked. Would the Allied leaders—Churchill, Roosevelt or Truman—have been guilty of a war crime under the statute of Rome for causing the involuntary movement of populations?

I cite the historical example in order to keep the matter outside present diplomatic circumstances. I have deliberately avoided reference to Israel, which I know that my hon. Friend the Member for Chesham and Amersham wishes to discuss. I am also avoiding reference to situations in Ethiopia and Somalia, where there has been the movement of populations, possibly as an instrument of war. Instead, I shall allow the Minister to discuss an ancient example with full diplomatic freedom.

Mr. Browne: Is the hon. and learned Gentleman satisfied that we are creating something new? The protocol to the Geneva convention which was adopted and ratified by the Conservative Government is set out in similar terms to article 8.2(b)(viii) and is already part of domestic law. There is nothing new about the matter.

Mr. Garnier: I am asking the Government questions about the Bill. The hon. Gentleman may be right, but there may come a time—he has about six weeks to wait—when he is a member of the Government and can speak for them. At present, in Committee, he speaks for himself, his constituents and the Labour party, because he is an official of the party.

We are considering a difficult constitutional area in which treaty-making power is entirely in the Government's hands, as representatives of the sovereign. Parliament have an incidental role in such matters. The hon. Gentleman may find it disagreeable and tedious, especially on the day before we adjourn for the Easter recess, to have to listen to my questions, but it is legitimate that I ask them of the Government. I am prepared to be cross-examined by the hon. Gentleman, but I want the Government to answer my questions, as we are debating their legislation, and they have a majority in Committee.

Mr. Battle: My hon. Friend the Member for Kilmarnock and Loudoun raised a fair point: previous Conservative Governments introduced the crime into UK law through the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, which adopted the additional protocol. I am entitled to ask whether the hon. and learned Member for Harborough disagreed with the decisions of Conservative Governments on those occasions.

Mr. Garnier: The Minister is being unduly sensitive, although he is usually a reasonable fellow. [Laughter.] Easter eggs are on the way.

I do not have a problem with the Conservative Governments' actions on those occasions, but I am concerned about the present Government's attitude. The Minister represents that Government, and, as they are the Executive, they have a responsibility to explain their attitude, and I have a responsibility to ask questions about it. Asking for my thoughts about legislation passed under Conservative Governments is about as useful as asking the Minister for his views on the minimum wage. His question would make an interesting school debating point, but we are dealing with the formulation of legislation in a strange constitutional area in which we, as parliamentarians, have little grip on the substance of what is debated. As a Member of Parliament, I cannot touch the statute of Rome. The Minister, as a member of the Government, has presented it to me, and I am grateful for that, but I cannot deal with it, except to admire and salute it as it passes along the Corridor from the House of Lords to the House of Commons and back again.

Mr. Battle: The treaty is built on internationally agreed legislation to which the previous Conservative Government signed up because they thought that it was a good thing. Why does the hon. and learned Gentleman wish to debate it again now, if he has already agreed to it?

Mr. Garnier: If debate is inconvenient, I apologise. I was elected to Parliament to hold the Government to account. It is not relevant to the debate to ask whether my party did the right thing by passing those pieces of legislation. We all know the derivation of many of the articles in the statute of Rome, and of many of the definitions of the criminal act that are being introduced into domestic legislation by the Bill. The Attorney-General explained their derivation in the other place. That is not a secret, and I do not resile from my view that previous Conservative Governments were right to introduce those pieces of legislation.

I am paid by the public to ensure that the Government explain themselves, rather than to explain the Opposition's thoughts on these matters. I hold many opinions, but they are of no account. However, the thoughts of the Minister, who represents the sovereign, are of significance, particularly in the esoteric areas of treaty making and the legislation relating to the ratification of treaties, as are the views that the Government hold, either as a matter of diplomatic policy or political necessity, and how they seek to defend their actions. If their answer to my questions is that it must be good because the Conservative Government passed it before, that is sensible. If that is the Labour Government's answer, I wait to hear it fall from the Minister's lips, and we shall be able to set it to music in due course.

I have had some interesting discussions with the hon. Member for Kilmarnock and Loudoun and the Minister of State, and some fairly interesting discussions with the Solicitor-General. He and I have known each other for a little while and can make such silly remarks, although he may not like them.

I am trying to extract from the Minister the Government's view and explanation for the Bill. The matter is all the more important because we have reached the end—I understand; I have not read The Sun today—of the parliamentary programme. If the Bill is to pass through all its stages before the election is called, and if we assume that the election will be held on 7 June and that Parliament will be dissolved in the first 10 days or so of May, the Government will be under considerable time pressure for the Bill to complete all its stages in the House of Commons and the other place before dissolution.

I have a suspicion that, if consideration of the Bill is incomplete, the Foreign Secretary will ask the Opposition about their attitude. We shall have to see what stage the Bill has reached, but before we make any decisions about whether to co-operate with the passing of half-complete deliberations, we shall want to know the Government's opinion of their Bill.

If the Minister's response is, ``Well, you did it, so it must be a good thing,'' I understand that, and if that is the height of his argument, good luck to him. However, I am entitled to extract explanations from the Government.

Amendment No. 6 to clause 50 relates to regulations on the text of the elements of crimes referred to in subsection (2) and amended from time to time. Subsection (2) of clause 50 states:

    ``In interpreting and applying the provisions of those articles the court shall take into account—

    (a) any relevant Elements of Crimes adopted in accordance with article 9, and

    (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000.''

That requires us briefly to consider article 6, which is headed ``Genocide''. Again, I say candidly that the definition of genocide specified therein is not new, as the Minister would be one of the first to concede. I may have said so before. It is a definition of genocide taken from earlier instruments, which I accept. I should like to ascertain the Minister's attitude to the insertion of the words proposed in relation to the transfers of population referred to in article 8. As the arguments that apply to clause 50 are precisely those that I advanced in discussing an earlier amendment, I need not repeat them.

New clause 6 refers to the Government's

    ``having made an effort in good faith to obtain a correction to the tests''

in various languages set out by way of the process of rectification. We discussed the matter earlier, and I do not intend to enter that country a second time.

We invite the Committee to add

    ``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''—

which relates to clause 50, which I mentioned a moment ago—

    ``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''.

Subsection (c) of the new clause states that

    ``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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In the light of the arguments that I have advanced in relation to amendment No. 5, I trust that those advanced in relation to new clause 6 do not need further elaboration. I can provide such elaboration if the hon. Member for Kilmarnock and Loudoun would like me to do so, but I suspect that he would prefer that I did not. I know that he has taken a careful note of all that I have said so far. Will the Minister say what is the view of the ``sovereign''—if the Minister needs assistance on that question, I know that the Solicitor-General is eager to give it—on the way in which its prerogative power will be used as a consequence of our ratification of the statute of Rome in regard to war crimes of movement, whether deportation or voluntary, of populations within territories and from one territory to another? I use the word ``sovereign'' in inverted commas because, nowadays, for this purpose, the Government are sovereign.

Will the Minister explain the meaning of ``in particular'' and indirect movement? Have I completely misunderstood the use of the words ``directly or indirectly'' in relation to transfer in article 8? That may be a point of little significance currently, but I daresay that the Minister's civil servants will do their best to help him on the matter.

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