International Criminal Court Bill [Lords]

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Mr. David Lammy (Tottenham): The hon. Gentleman uses the words ``unwilling or unable'', but amendment No. 38 states that

    ``an enquiry shall be held by a joint committee of both Houses of Parliament''.

That suggests an instinctive suspicion of the ICC. The amendment does not use the language of ``unwilling or unable''. Will the hon. Gentleman clarify that point?

Mr. Blunt: The hon. Gentleman leads me on to the next part of the amendment. The Home Secretary might appeal for jurisdiction, lose that appeal and the ICC could then insist on its right to try a British subject. The ICC would have judged that the United Kingdom was ``unwilling or unable genuinely'' to put a person on trial. We could not complain about that judgment, which would be valid, and I do not seek to undermine the rights of the ICC; we would be bound by the terms of the statute if we ratify it. However, if that happens, the United Kingdom, as a signatory to a statute that includes the principle of complementarity, would operate the system of enforcing its laws, and may find itself in dispute with the ICC over why that court had seen it necessary to bring that British subject to justice over and above the prosecuting authorities of the United Kingdom.

Mr. Lammy: With respect, nothing in the amendment says ``unable or unwilling''. The amendment clearly states that we should challenge the jurisdiction of the ICC.

Mr. Browne: In all circumstances.

Mr. Lammy: Yes, in all circumstances. Where are the words ``unwilling or unable''?

Mr. Blunt: That is the point. What is the first duty of the United Kingdom Government? It is to the security of its citizens. The United Kingdom will have come to the conclusion that that British subject should not have been put on trial, or will have acquitted him after putting him on trial, whereas the ICC will have reached the conclusion that that trial was a farce and was designed to protect that citizen, or that he should have been put on trial in the first place.

Mr. Tony Worthington (Clydebank and Milngavie): It seems to me that this is a wrecking amendment because there could not be an international treaty that gave Britain rights of jurisdiction that were not given to other countries. If one is willing to allow Britain to act in the way that the hon. Gentleman suggests, one has to allow the same rights to the Government of Rwanda, to Milosevic, to Saddam Hussein and so on. Could the hon. Gentleman confirm that the amendment is not a probing one, but one that he wishes to press, which would utterly undermine any ICC?

11 am

Mr. Blunt: That is wholly incorrect, and reflects a complete misappreciation of the amendment. The hon. Gentleman is quite right that it would be a wrecking amendment if it were designed to change the terms of the statute or of the international agreement that the UK has made. However, it does nothing of the kind. It would apply only if a warrant came from the ICC to arrest a British subject in the UK who, under the statute's principles of complementarity, should have been tried in the UK for the crimes for which the ICC had indicted him, but had not been, and the ICC had concluded, under article 17, that it should hear the case because the UK was

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

The Home Secretary would then have a duty to say that there must be an appeal for jurisdiction. [Interruption.] That is all that the amendment does. Amendment No. 40 says that

    ``If the challenge to the ICC under subsection (11) is unsuccessful'',

Parliament needs to establish what went wrong.

Mr. Gapes: I know that I am speaking a lot, but the matter is very interesting. What would happen while the individual against whom the ICC wished to take action was in this country? Does the hon. Gentleman assume that the person would sit quietly and wait for the outcome of the Committee of Inquiry, or would they perhaps get on a plane to somewhere else and try to escape jurisdiction?

Mr. Blunt: It would be for the Home Secretary to decide whether such a person was going to abscond from justice. That is a judgment that the authorities would have to make, on the basis of the individual case. The person would be unlikely to abscond from the UK if the UK were saying that they should not be put on trial before the ICC because the UK had investigated the matter and did not think that a prosecution should be brought, or because the person had been tried and acquitted here. Those are the circumstances that my amendment anticipates.

Mr. Browne: The hon. Gentleman has been very generous at giving way in this interesting debate. We can debate the practicalities, but the principles are more interesting. In its totality, the amendment says that if the ICC disagrees with our decision not to exercise jurisdiction, and seeks to exercise jurisdiction itself, we must automatically challenge that, in certain circumstances, for our citizens. It says that if we lose that argument, we must have a parliamentary inquiry. If that inquiry supports our chauvinistic view of the position, we must withdraw under article 127.

The test of the intellectual coherence of that argument, and of the hon. Gentleman's commitment to the international convention and to supporting the ICC, is whether he would give that right to every other signatory. If we are to have it, then everybody else must have it. That would mean that every time another Government who have signed up disagree with the ICC, they must test it to destruction and then withdraw. The amendment destroys the whole convention. It is a wrecking amendment, designed to wreck not only the Bill but the treaty.

Mr. Blunt: It is absolutely not a wrecking amendment. I implore the hon. Gentleman to look at its language. It is simply a flag. Every other country is entitled to take the same position, because every other country has a sovereign Government. Their Governments and Parliaments can take whatever action they see fit. The amendment would simply mean that if we have explored all avenues for appeal and jurisdiction under the ICC and article 19 and we have lost, the establishment by Parliament of a Committee of Inquiry would be triggered to discover how that position has come about.

Mr. Battle: A couple of minutes ago, the hon. Gentleman commented—if I heard him rightly—that it is open to all countries to take such a course of action, and that he would expect them all to pass a similar amendment if they were even considering signing up to the ICC. Can he not understand that that would massively undermine the whole principle of building an international institution—which is what we are about here—because it would give everyone the ultimate opt-out clause, and no one would sign it?

Mr. Blunt: No, it does nothing of the kind. The amendment applies only if we find ourselves, as a country, in dispute with the ICC. We are responsible citizens and a responsible Parliament, of a country with a proud record of its role in the world and its international duties. If the UK—a permanent member of the United Nations Security Council—were to be in dispute with an organisation that was seeking to bring to justice subjects whom we were not prepared, under the terms of articles 5, 6, 7 and 8, to bring to justice in this country, there would be a problem. In such circumstances, the amendment would simply ask Parliament to establish a Committee of Inquiry to investigate what has gone wrong. Why is the UK in dispute with the ICC? Why has the ICC decided that it must bring a British subject to justice because the British authorities are not prepared to do so?

There could be two explanations for that, but the first is that the UK might be acting unreasonably. For example, its Government and prosecuting authorities might be unprepared to bring to justice the Prime Minister or the commander of British troops on an overseas operation accused of war crimes. The Committee of Inquiry of both Houses of Parliament would have to consider whether that was, to use the term that the hon. Member for Kilmarnock and Loudoun (Mr. Browne) mentioned, a chauvinistic standpoint. Its only power would be to come to a conclusion about whether the ICC's behaviour was reasonable. It is a test of reasonableness. If, in its judgment, the ICC had been unreasonable, a Joint Committee of both Houses would ``request'' the Government—not injunct the Government—

    ``to give notification of withdrawal under Article 127''.

If the amendment is not passed, and the ICC arraigns a British subject for trial against the UK's wishes, there will be pandemonium. The chauvinistic debate in the media will be considerable. The amendment provides a mechanism to allow us, in such a situation, to say that we will not denounce the treaty, but have a Committee of Inquiry, and take time to consider in Parliament whether the ICC has been reasonable.

Mrs. Louise Ellman (Liverpool, Riverside): Will the hon. Gentleman explain what the purpose and effectiveness of an international criminal court would be if all national jurisdictions could opt out, given that his amendment is of a general nature and does not refer to any specific activity? What would be the purpose of such a court and how could it function effectively?

Mr. Blunt: Everyone can opt out. Has the hon. Lady read article 127? Under that article, every state can opt out of the ICC's jurisdiction if they want to by giving a year's notice. The amendment would allow Parliament to establish a test of reasonableness of behaviour on the part of the United Kingdom prosecuting authorities and the ICC, and to come to a conclusion about whether the ICC is operating in the way that we hope it will. My concern is that, given the way in which the statute has been negotiated, there is at least a possibility that the court will not behave in the way that we expect.

Mr. Lammy: Is the hon. Gentleman not confident about this country and its place among its international partners? What is wrong with partnership, consensus and achieving co-operation regarding its decisions being at the heart of the ICC? His argument is like that of the recalcitrant child who does not like the decisions made by grown-ups and decides to opt out. The example of opting out of the whole process is quite different from individual countries, as he says, staking a flag in the ground. He talks about responsible Government, but his argument would allow for irresponsible Government.

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Prepared 24 April 2001