International Criminal Court Bill [Lords]

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Mr. Blunt: I am trying to establish not that such a situation is likely, but that it is possible. It is the duty of Parliament and the Committee to examine the possible consequences of legislation. I will develop those arguments further later.

The Solicitor-General (Mr. Ross Cranston): Is it not the case that the prosecutor for the international tribunal for the former Yugoslavia has made it clear that she will not investigate the case that the hon. Gentleman has raised because she does not consider it to involve a breach of international law? That clearly illustrates that international prosecutors act responsibly, both in that case and more generally.

Mr. Blunt: I am grateful to the Solicitor-General for making my point. That international prosecutor decided that there was no case to be brought, but other lawyers believe that there is a case. The hon. and learned Gentleman cannot say that a prosecutor elected on a secret ballot by a majority of member states will never be the sort of person who might want to prosecute such a case.

Mr. Edward Garnier (Harborough): I am interested in the Solicitor-General's intervention and I have two points to make. First, two transatlantic legal academics—I think that one was from the United States and the other was Canadian—issued a complaint about NATO's bombing of the television station. Secondly, the prosecutor, far from reaching a conclusion adverse to those complaints, has left the matter where it fell: she has not investigated the complaints to their conclusion. The issue is still live and has not been finally resolved. If the prosecutor has reached a final conclusion, that is news to me. Perhaps the Solicitor-General can provide enlightenment.

Mr. Blunt: I am grateful to my hon. and learned Friend for illustrating my point. The case is a recent one in which the United Kingdom was acting as part of a NATO coalition of states that were unified in their action against Yugoslavia. Yet, as he says, a complaint is resting on the table, and the fact that a prosecution has not been brought is dependent on the personality of the prosecutor. [Interruption.] I am relying on the words of the Solicitor-General.

Ms Oona King (Bethnal Green and Bow): Does the hon. Gentleman accept that the logic of his argument is that we should withdraw from all our international obligations? Under the Bill, the ICC will have fewer powers of investigation and prosecution than the Yugoslavia tribunal had. As far as I can tell, the hon. Gentleman's argument takes us back to the 1949 conventions and beyond—back to the war and to everything that we have been trying to avoid.

Mr. Blunt: That is not the logic of my argument. The duty of the Committee is not only to examine what we hope the ICC will achieve and how it should behave as a responsible international institution; we must also consider what might happen that would be deleterious to the interests of the United Kingdom. The sole purpose of the amendment is not to change our responsibilities or duties under the statute, but to put up flag that says that if the ICC develops in a way that we do not expect, which it might do, we have a responsibility to say that that is unacceptable to the United Kingdom.

10.45 am

Mr. Gapes: We are coming to an interesting point. I want to be clear about what the hon. Gentleman is saying. He seems to be saying that he has a problem with the structure of the court. Is he against the court because he is against the principle of an international court, or is he against it because a foreign judge will be taking the decisions?

Mr. Blunt: That is a risible intervention. The question is absurd because I am not against the principle of an international criminal court. I am thoroughly in favour of that principle. The United Kingdom has a proud record of international jurisdiction, but we must consider what happens when we hand over jurisdiction to international tribunals—we must be aware of the possible consequences.

I am in favour of the ICC: if it works as we all want it to—if it brings to justice those who are guilty of crimes under articles 5, 6, 7 and 8—it will be a successful and important institution. However, there are a number of flaws inherent in the way in which it has been put together as a statute. That has resulted in the fact that major countries—the biggest countries in the world—are unlikely to be party to it. It will be an immensely important institution if it works, but we saw what happened to the League of Nations when the United States was not party to it. Such matters should have been addressed when the statute was negotiated to make it more acceptable to larger states. Relative power has been given, through the institution, to the smaller states.

Mr. Cranston: We shall discuss the position of the prosecutor later, but now I want to set the record straight. The prosecutor decided that there was no case and that no investigation would be opened. The prosecutor made it clear that NATO was acting in conformity with international law. I can assure the Committee that that was the case because I was involved as a Law Officer. Many people raise complaints with domestic prosecutors such as the Crown Prosecution Service: those complaints are investigated in an objective way and are either proceeded with or, as they were in that case, dismissed.

Mr. Blunt: I fully accept the Solicitor-General's remarks about the quality of my example of the complaint against the Prime Minister about the bombing of the television station. I am happy to accept the Government's argument on that issue. I do not want the Prime Minister to be arraigned in front of the war crimes tribunal in respect of former Yugoslavia on a charge arising from such action. In any event, the President of the United States would probably be the one to face such a charge, because American aircraft undertook that mission. The Solicitor-General made the point that the prosecutor saw that there was no case in respect of the bombing of the television station. The United Kingdom was acting as part of a NATO coalition in that action.

However, what about the bombing of Baghdad and Iraq by British and American air forces that has been going on consistently to enforce the no-fly zone? That operation is much more controversial in international terms than the action that we took against Serbia in respect of Kosovo. In much of the Arab world, there is now sympathy for Iraq about those operations. Because of the continuing operations of the Royal Air Force and the United States air force, the balance of opinion has changed in favour of someone as frightful as Saddam Hussein. One has only to recognise that to understand that if something were to go wrong with an RAF operation—if for example, an attempt to take out an air defence installation ended up taking out a children's home in Baghdad—a complaint would be made, were we party to the Rome statute. Such operations are much more controversial in terms of international law than the war over Kosovo was.

Mr. Gapes: Is the hon. Gentleman arguing that we should not join the ICC? If not, is he saying that certain conflicts and certain countries should not be covered by it? I am not sure where his argument is leading. He claims that he is in favour of the ICC, but all his arguments seem to be against it.

Mr. Blunt: I am anxious to make the point to the Committee that I am in favour of the ICC. Let us be very clear about that principle. What we have to judge when deciding whether to accept the Bill ratifying the treaty is whether the court is going to work in the way that we intend. I am trying to illustrate through a case study how the ICC could work against the UK's interests, and how we, our leaders and those who carry out military operations on our behalf could end up on the wrong end of the ICC, with warrants for arrest issued and investigations undertaken by prosecutors appointed under the terms of the Rome statute.

We must consider such cases now, before we sign up to the statute. We must know what we are letting ourselves in for. That is the purpose of the amendments. They do not serve in any way to undermine the treaty.

Mr. Browne: I accept in good faith that the hon. Gentleman is in favour of an ICC. However, it appears that he is not in favour of an independent prosecutor. The thrust of the amendments appears to be that the UK should be allowed in all circumstances to second-guess every decision made by a prosecutor. Will he make it clear that we would be prepared to allow that qualification to everybody who has signed the convention? Is he going to argue for the destruction of the whole convention by allowing every single country to second-guess every decision made by the prosecutor, in the way that he want us to be able to do?

Mr. Blunt: That is not my purpose, but I am grateful to the hon. Gentleman—he is making my point. The amendments would apply only if the ICC issued a warrant for the arrest of, for example, our Prime Minister or our RAF commander in Saudi Arabia, and we found it absurd that they should be put on trial. The amendments would then impose a duty on the Home Secretary to say, ``Hang on, we should have jurisdiction over this''—to appeal for jurisdiction under article 19—and to say that we had investigated the matter and did not consider that it should be brought to trial because it did not amount to a war crime.

Any such dispute over jurisdiction is, in effect, a dispute over the admissibility of the case before the ICC. The court would be claiming that the case was admissible under article 17 because we, the UK, had been

    ``unwilling or unable genuinely to carry out the investigation or prosecution''

of a British citizen. The hon. Gentleman will see that article 17.1(a) and (b) refers to us being in such a position. The amendment states that if that happened, the first thing that the Home Secretary would do is to appeal by saying that it should be our case and not the ICC's. If the United Kingdom had been unaware of the case, the amendment says that it should now take over jurisdiction of it. The hon. Gentleman says that we would have that jurisdiction anyway, but I am concerned about circumstances where there is a dispute. The ICC might think that we were protecting a British citizen by not being prepared to genuinely put him on trial and investigate the case. I am sure that if the British Prime Minister went on trial before a British jury for what happened to the Serbian television station, he would not be convicted. I am certain that that case would not even go to trial. I am trying to illustrate circumstances where such situations might arise. First, there would be an appeal for jurisdiction.

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