International Criminal Court Bill [Lords]

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Mr. Browne: The way in which the prosecutor and deputy prosecutor are elected is not the whole story. The office of prosecutor is addressed in article 42, paragraph 5 of which states:

    ``Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence.''

Paragraph 7 states:

    ``Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.''

Paragraph 8 states:

    ``Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber''

and continues in sub-paragraph (a):

    ``The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article''.

If the hon. Gentleman wishes to argue that the provisions of the statute create a situation in which we could or were likely to elect the wrong person to be prosecutor or deputy prosecutor, he must read the whole article and address his arguments to the totality of it, not only to the way in which prosecutors are picked.

Mr. Blunt: I shall address my arguments to the totality of it. The people who take the decision on whether the prosecutor is behaving in a way that someone has had cause to appeal against—as anticipated in the statute—are those in the appeals chamber.

The prosecutor will probably be someone with a record on human rights or war crimes legislation who has taken a forward position in trying to bring criminals to justice. Such a person will attract most support from the members of the Assembly of States Parties.

States with limited diplomatic resources will be unable to come to the same weighty conclusions as can the Foreign Offices of large countries, which have the benefit of substantial diplomatic services and are able properly to run the rule over potential candidates. Nations of 30,000 or even 1 million people do not have the necessary resources to do that. They will rely as much on press coverage as anything else to judge people's reputations. They might take a leaf from the big countries' books, but there can be no guarantee of that. The hon. Member for Kilmarnock and Loudoun quotes the job description from article 42.3, but we must remember that the prosecutor appoints the deputy prosecutors: the whole prosecution office will follow the characteristics of the prosecutor.

11.45 am

Mr. Gerald Howarth (Aldershot) rose—

The Chairman: Order. I would be failing in my responsibilities as Chairman if I did not remind hon. Members that the normal standards of behaviour in Committee require the prior approval of the Chair before divesting oneself of one's upper garments. However, as I am anxious to ensure that we are able to concentrate without any distraction on the line by line scrutiny on which we have embarked, I am prepared to allow all male Members to divest themselves of their upper garment in this and future sittings, on the condition that we recognise that that is not a relaxation of the normal standards of behaviour.

Mr. Howarth: We in Aldershot—the home of the British Army—which I represent, apply very high standards, Mr. Cook. You will note that my tie is done up very firmly and that my top button is done up. I hope that I am suitably dressed for your Committee. I speak, of course, as a commissioned officer in the Royal Air Force Volunteer Reserve—

The Chairman: Order. I hope that that little monologue was not meant to imply criticism of the Chair's admonishment. Please proceed.

Mr. Howarth: My remarks were no more an admonishment of you, Mr. Cook, than yours were of me. I do not seek to challenge the Chair, but I have always made a point of upholding the standards of the House and dressing appropriately. You will be aware, however, that it is reasonably warm in here, and I thought that you had made the position about dress clear in our opening sitting.

I am grateful to my hon. Friend the Member for Reigate (Mr. Blunt) for giving way. He has drawn attention to the great difficulties that attach to the appointment of the prosecutor. Does he agree that that the matter will probably give rise to the same sort of lobbying that has taken place surrounding the international Olympic games? I do not suggest that the ICC is on a par with the Olympics, but the structure is similar, in that many nations are involved. Real powers will reside in the prosecutor and it is likely that there will be lobbying to establish the most popular choice. There is currently intense lobbying over the president of the European central bank.

Mr. Blunt: My hon. Friend is right. Anyone who has taken part in, or been close to, negotiations about international posts knows that much trading is done. Country A will approach country B and say, ``If you support our candidate for such and such an international position, we will support your candidate for another.'' That is how the system will work. In this instance, the votes are to be given nation by nation in an unqualified way—that is done for a vast range of international positions—which gives small countries significant ability to advance their own candidates. The problem with that is that, because a nation of 60 million people can reasonably be expected to produce a large number of highly capable jurists, all of them will be in the same pot supported by one vote and allowed only one place. Since there are to be 18 judges, that is probably not a problem, given the scope of the ICC. However, it also means that the smaller countries will be over-represented. It is therefore probable that the ICC will not have judges of the quality that would be possible if there were a free choice from a pool of the entire world population.

Mr. Mark Hendrick (Preston): The hon. Gentleman talks about protecting the interests of the United Kingdom. To follow through his argument about population, let us suppose, for argument's sake, that China, Russia, India and the United States participate on a weighted basis, as he suggests. Would he be happier—given his scenario of almost political interference in the selection of the prosecutor and considering that the UK has a population of only 60 million, compared with the billions of people in those other countries? That is the logical consequence of the scenario that he describes.

Mr. Blunt: I do not seek to change the way in which the statute is formulated. What I seek to do through the amendment is to point out potential consequences of the way in which the statute is formulated. That is quite different. My point, which is central to the discussion of the statute, is that, because of the way in which the institution is going to work and the way in which the personalities will be selected, the major countries will be making a significant sacrifice of influence relative to the smaller countries. The United Kingdom will have the same weight as smaller countries and, in the case of China or India, the sacrifice will be magnified 20-fold in terms of their population. In the case of the United States, in terms of economic weight and the disproportionate role that it takes in enforcing global security and securing the defence of freedom within the international system, it will be magnified even more.

Mr. Hendrick: Let us say, for argument's sake, that we accept the hon. Gentleman's argument. He is not happy with what is proposed, but let us follow through his arguments. In the light of the UK's interests, does he think that there is a better alternative to what is on the table—that it would be better if Russia, China, India and the United States were to participate on a weighted basis?

Mr. Blunt: That is not what I said. I said that we cannot unpick the statute. We certainly cannot do so by means of my amendments. We have the statute as it is. However, if we were to renegotiate the statute, I should have thought that it would contain some mechanism of qualified majority voting, or some such arrangement, which would not operate on an absolute population basis, but which would acknowledge the weight of different states in the number of votes that they had for particular positions. That is how I would conduct the negotiations to achieve a result that would be acceptable to the larger states.

Mr. Lammy: On the issue of the quality of jurists in some of the smaller countries, does the hon. Gentleman accept that we live in a global world? The law is not immune to that. Institutions such as Harvard, Cambridge, the school of Oriental and African studies and universities in Canada and Australia produce many international students who qualify as lawyers and undertake masters degrees in other countries. There is a lot of cross-fertilisation now, so the assumption that because a country is smaller its jurists cannot be of the same quality as those of a larger country does not stand up.

Mr. Blunt: I was with the hon. Gentleman right up until his final sentence. A nation the size of San Marino is unlikely to produce as many jurists qualified to the same standard as the United Kingdom or the United States. I use San Marino as an example because it is the most extreme case, but populations range between 27,000 and one the size of China's. Of course there are qualified jurists from other countries of the world. However, it is highly improbable that those jurists are of a uniform standard or that the most senior judge of every nation is of the same quality. If an institution represents a vast number of people, those at the top of that institution will be of higher quality. Perhaps that is not a terribly important point.

Mr. Lammy: I want to be sure that I have understood the hon. Gentleman's conclusion. Is he saying that India and China have more qualified jurists than the United Kingdom?

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