International Criminal Court Bill [Lords]

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Mr. Browne: As an experienced parliamentarian, the hon. Lady will know that parliamentarians regularly seek to politicise court decisions and make observations about them, often without any knowledge or understanding of the procedures or the courts. That is not unique to the international stage—it happens domestically. People suggest that a decision that has been properly arrived at by a court is political. However, the important thing is that the ICC offers an opportunity to establish a jurisdiction that will, over time, stand alone and above politics.

Mrs. Gillan: I cannot disagree with the hon. Gentleman's remarks, other than to say that that is not the point that I am seeking to make. The Board of Deputies of British Jews raised concerns about the politicisation both of the negotiation process, which led Israel not to sign, and of other countries' subsequent suggestions. In the example that I have described, an observer says that a process in which we have been involved is politicised.

I had hoped to use the amendments to find out what the Minister thinks about the potential dangers surrounding an international court comprised of 18 judges drawn from a wide variety of countries. It is not unreasonable to assume that at some stage those judges might be attacked for politicisation, real or perceived. Therefore, it would have been wrong of me not to table the amendments in order to draw out the Minister. I do not want to take up any more time, because I should like to make some brief comments on clause stand part if you, Mr. Cook, in your wisdom, will allow it. I look forward to hearing the Minister's response to my points and those of my hon. and learned Friend the Member for Harborough.

Mr. Blunt: The debate is important, but I do not want to go over ground already covered by my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham. However, I should like to pick up on the points made by the hon. Member for Liverpool, Riverside (Mrs. Ellman), in so far as I was able to grasp them. I think that she was referring to the right of return of Palestinians in the occupied territories.

Mrs. Ellman: Rather than referring to the matter that has just been mentioned, I was asking whether, in principle, the Minister considers that a successful prosecution could follow a single act in relation to an occupying power voluntarily bringing some of its population into an area, without any reference to what they might do. I was seeking the Minister's view in the context of the horrendous nature of the offences that are to be heard under the International Criminal Court such as extermination, use of biological means and scientific experiments on people.

Mr. Blunt: I am grateful for that clarification. It has made plain the importance of the debate engendered by the amendment, particularly if we look at the international cases that will now be affected by article 8.2(b)(viii). I should like the Minister's view on whether there is a potential problem with the clause in the future settlement of current disputes. If one looks at many of today's most agonised international disputes, one can see that part of the solution might be the movement of population. If that were to be involuntary, it would be wrong and it would remain wrong under the amendment, but if it were voluntary it might be an essential part of a solution. How might that work?

Mr. Battle: I do not think that the hon. Gentleman was present when I intervened on the hon. and learned Member for Harborough to point out that both voluntary and involuntary cases are covered by other international treaties that form the basis of the statute.

Mr. Blunt: I understand that, but the point is that the statute will give effect to the ICC and that will give teeth, for the first time on a serious international basis, to such provisions. That is important in an historic sense for the United Kingdom in relation to what happened to the islanders of Diego Garcia. Although article 8 cannot be applied retrospectively, there is, for example, at least a prima facie case that the UK was guilty of the enforced transfer of the people from Diego Garcia to release that island for the American air force. Therefore, the UK could be affected.

Mr. Battle: If the hon. Gentleman reads article 8, he will find that it refers to

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

It goes on to deal with the transfer, directly or otherwise, by the occupying power of parts of its civilian population. We are not in a state of armed conflict with Diego Garcia.

Mr. Blunt: The point is that the people who used to live on Diego Garcia are in dispute with the United Kingdom. However, we are going to have to rely on the ICC's definition of what conflict is. The few inhabitants of Diego Garcia would have been poorly advised had they decided to fight the forces of the UK in the 1960s. Many issues will arise if, because of enforced deportation, or a similar situation in the future, they have to take to arms to trigger the intervention of the ICC, and will not otherwise be protected.

The application and success of the ICC will depend on the vast majority of states becoming party to it. Let us consider Turkey, which has not signed up to it. It is in dispute with Cyprus over the Turkish population that has been imposed on the northern part of Cyprus. Let us consider China and Tibet. China is not a signatory to the statute.

Mr. Mike Gapes (Ilford, South): The matters to which the hon. Gentleman referred, such as the dispute in Cyprus, date back at least 25 years. They are in the past and have no relevance to the Bill.

Mr. Blunt: With respect to the hon. Gentleman, yes they are relevant, because the disputes are continuing. At some stage, a deal may be brokered about Cyprus that might cause the movement, for example, of the Greek population back to Varosha near Famagusta. In discussions between the two sides in the Cyprus conflict, heads of agreement have almost been reached about a bizonal state. That would mean the swapping of property. A solution would have to be found so that people could live with each other within zones.

That is what has happened in Bosnia, where significant population transfers have taken place. In 1992, the population was very mixed and 30 per cent. of marriages were mixed, but people have now entered separate enclaves. Those whose houses are in the wrong ethnic area have been doing deals with people in other areas to swap property. A state and its people might want to come to an agreement about that. That solution could apply in Israel and the occupied territories.

I accept that article 8.2(b)(viii) has previously been part of international law. However, the ICC will have real teeth if states sign up to it and to the power to bring leaders and others to justice under that article. I am concerned that that is why several important states that are key to the ICC's success and to the success of future settlements of long-term disputes have not signed up to it. It is most regrettable that China, Turkey and Azerbaijan—because of its dispute with Armenia—are not signatories. Will the Minister consider the effect that the translation into international law of paragraph 2(b)(viii), unamended, has had on the attitude of states that would otherwise be party to the agreement? The hon. Member for Liverpool, Riverside made it clear that she was not citing the example of Israel, but I think that Israel made its position clear.

Mrs. Ellman: My clarification was about Palestinian refugees. I did not state that I was not referring to Israel. The situation in Israel with regard to the Palestinians and the settlement at some point is related to that.

4.45 pm

Mr. Blunt: I am grateful to the hon. Lady.

My essential point is that, quite properly, an agreement has been signed in which the words in article 8 appear. As the Minister made clear on Second Reading, the difference is the importance of the institution that is being established. There will now be an institution with teeth, which can really work and bring to justice people from the states that are party to it. Consequently, greater thought must be given to the sort of proposal made in the amendment tabled by my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham. If the effect of the unamended statute has been that many states have not signed up, that is much to be regretted, because it reduces the effectiveness of the ICC. Will the Minister address that point?

Mr. Battle: I shall start by responding to several of the detailed points that have been raised. I agree with the hon. and learned Member for Harborough, who said that the court is to be set up internationally by statute, that we cannot change that statute because we have agreed to it, that we are trying to align our position so that we can be signatories to it, and that we are therefore somewhat hamstrung. It is not as if we were starting out, through primary legislation, to construct our own court here in Britain. That was a fair way of putting it. The question then is whether our deliberations and decisions will change what we do in Britain anyway. We would argue that it will not and cannot, and that any change would have to come before Parliament in any event. That is the reassurance that we shall try to give to Opposition Members.

Many of the comments by the hon. Member for Reigate suggested that he overestimates the scope of the court. This is not the Bill to implement the Geneva convention. To put it crudely, it is not the Bill to ban war and resolve all world conflicts. It is quite limited in its scope. We should understand that we are setting up a court, through international agreement, to try people for war crimes, crimes against humanity and genocide, and we have to define what those crimes are. The court is not retrospective—it is intended not to sort out past and current conflicts, but to deal with people who are brought before it in future.

The hon. and learned Member for Harborough asked me, in a rather grandiloquent manner, what the sovereign's view was. I can tell him the Government's view: we have no problem at all with article 8.2(b)(viii) of the statute, which concerns the transfer of the civilian population of an occupying power into the territory that it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or without the territory. That is not a new concept; it appears in the context of other international treaties. Article 49 of the fourth Geneva convention of 1949 prohibits transfers by an occupying power of its civilian population into occupied territory, and the deportation or transfer of the population of the occupied territory. We have been party to that convention without any difficulty for 40 years, and there should be no going back on that now.

We are also party to the first additional protocol to the Geneva convention, dating from 1997, of which article 85.4(a) uses almost identical language to that of the Rome statute in recognising such transfers to be a grave breach of the Geneva convention. We have prayed in aid the Geneva Conventions (Amendment) Act 1995, which was passed by the previous Government with our support; there was unanimity about that. When that Government did good things, as they did on a few occasions, it was right to support them.

The British courts already have universal jurisdiction over such crimes, whenever and wherever they are committed. It would be pretty odd if we now decided to deny to the International Criminal Court jurisdiction that our courts already have. That position would be completely incongruous, which is why I do not think that the amendment is necessary. The crime, like those in the statute, was further elaborated in the ``Elements of Crimes'' documents prepared by the preparatory commission for the ICC in June last year. The elements of article 8.2(b)(viii), which were the subject of extensive negotiation, do not include the notion that only forced transfers are illegal. Those elements of crimes were adopted by consensus between the states participating in the preparatory commission—a consensus that included the United Kingdom. It also included Israel and the United States of America, which was welcomed. The main point of building the institution is to get the court off the ground. I hope that it was a slip of the tongue rather than anything else when the hon. Members for Chesham and Amersham and for Reigate stated that Israel had not signed the statute. Israel has signed it.

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