International Criminal Court Bill [Lords]

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Mr. Battle: Apart from one sad little episode, this has been a high-quality debate. The discussion has gone to the core of many of the issues covered by the Bill. The hon. Member for Reigate apologised for the length of his speech and the number of interventions, but we have touched on some of the key themes. It is a good that we have had this debate at this stage, rather than letting the time run into the sand without having seriously debated the issues.

The Chairman: Order. We are all obliged to abide by the conventions and practices of the House. I ask members of the Committee to address their remarks to the Chair. I know that one tends to adopt a conversational style, and in some ways I am in favour of that, but I am partially deaf.

Mr. Battle: I apologise, Mr. Cook. I tend to look at those who made the comments and speak to them rather than address the Chair. I have not become accustomed to the arcane practices of the House. I hope that you do not take that comment as a criticism of the Chair and our proceedings. I apologise for not addressing the Chair.

It is unusual that the hon. Member for Reigate allowed so many interventions in his speech. He was generous in that respect. He said that he was in favour of the court and wanted it to work as a successful and important institution. We received an unequivocal statement from him and one that was rather less forthright from the hon. Member for Aldershot, when he was pressed by one of my hon. Friends.

That aside, however, the hon. Member for Reigate made another important remark, which was that we are not renegotiating the statute in the Bill. We cannot start from somewhere else. We are where we are in terms of the make-up of the International Criminal Court. He accepted that in good faith. We have moved on from clause 1 and are now debating clause 2, which is about the operation of the court. We are concerned only with the request for the arrest and surrender and handing over of people. We have discussed the size of the population of the member states. We did not discuss their GDP and the possibility of weighting.

We have also discussed the complexities of an international body appointing judges and a court. Reference has been made to the pre-trial chamber and to the job description of the prosecutor. They are all relevant themes and it is important that we discuss them at this stage in our proceedings. They will be echoed in future discussions, but it is important that we regard them as central to the purpose of setting up the institution.

The hon. Member for Reigate kept putting flags down and then later on he changed metaphor to sticking a stake in the ground. To push his analogy a little further, his amendments would drive a stake right through the heart of the International Criminal Court. They would constitute a massive let-out clause. We made clear on Second Reading and in some of our earlier debates in Committee that the United Kingdom will have the primary right to investigate here in Britain any allegation against any UN national.

That is the starting point. In other words, the International Criminal Court could step in only if we were found to be unwilling or unable to investigate such matters. In a telling intervention, my hon. Friend the Member for Tottenham (Mr. Lammy) underlined the words ``unwilling or unable''. They are crucial. It is important to emphasise that, if we in the United Kingdom decided not to prosecute after undertaking a genuine investigation, the ICC would not take jurisdiction. I accept that my response is more of a ``what if'' answer, but it means that the situation envisaged in the amendment of there being an ICC warrant for an arrest of a United Kingdom national would not arise.

Mr. Blunt: I know that the burden of the Minister's argument is that such a situation would not arise, but he must accept that the interpretation of ``genuine'' will be that of the court, not ours.

Mr. Battle: That will be so, but it is about having confidence in the court as an institution, not considering whether a particular personality with an axe to grind is the person making the decision. We must build an international institution around the rule of law within which context the individual will act as a jurist or a prosecutor.

In the hypothetical event of a difference of opinion on jurisdiction between the International Criminal Court and a state, clause 5(4) enables proceedings for a delivery order to be adjourned pending the outcome of a challenge before the ICC. We do not feel that there is a need for an obligation to challenge an arrest warrant to be specified in the Bill, because the option of a challenge is already provided for in the statute.

In effect, therefore, as my hon. Friends said, the amendments would undermine the ICC even before it is established. That would send completely the wrong signal from the outset, when we are trying to build support. I agree that we should press, encourage and exhort every country and state to join—not ask them to withdraw, but urge them to support the court. If everyone signs up, it will be all the stronger. That is why we are keen to be involved and encourage others by our own good example.

The Government strongly support the ICC. We had a hand in negotiating the Rome statute, which creates a body to be staffed with highly qualified independent experts, some of whom may be British. If we are to put our weight behind the creation of an independent international court, we cannot simultaneously accuse it of an inability to undertake proper admissibility hearings even before it has started to do the job, or we shall be undermining it before we even get it off the ground. The message that the amendment would send to the world is that states should withdraw from the ICC as soon as they are unhappy with one of its rulings—in other words, it would be a massive let-out clause.

Of course the Government—I believe that the hon. Member for Reigate started from this premise—have a duty to and will protect the legitimate interests of our nationals. The principle of complementarity will ensure that the ICC will be able to assume jurisdiction only when the UK is genuinely unwilling or unable to investigate. I shall spend a little time on those two key words, as they are important. Definitions of ``unwilling'' and ``unable'' are contained in article 17 of the statute. ``Unwilling'' is defined as meaning when the

    ``national decision was made for the purpose of shielding the person . . . from criminal responsibility'',

or when a delay at the national level is, or national proceedings have been conducted in a way that is,

    ``inconsistent with an intent to bring the person . . . to justice.''

``Unable'' is defined as meaning when,

    ``due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to ... carry out its proceedings.''

I cannot envisage Britain falling into that category. We are unlikely to be unwilling or unable.

In other words, the purpose of the court is to catch states whose judicial systems have collapsed and whose dictatorial regimes refuse to punish their own abusers of human rights. That is the idea. I do not believe that we are in that bracket. Hon. Members from all parties respect the judicial system, and it is likely to last. The question boils down to the word ``trust''—whether we trust an institution in whose creation we are co-operating with the international community.

We are trying to build an international legal institution, and it is important to have confidence in that body. In the other place, in the debate on the ICC on 20 July 1998, Lord Kingsland said:

    ``It is . . . extremely good news that the prosecutor in proceedings before the court will act entirely independently of the influence of individual states.''—[Official Report, House of Lords, 20 July 1998; Vol. 592, c. 626.]

I recommend his words to the hon. Member for Aldershot in particular. I cannot emphasise enough that national judicial systems will have the first claim on any investigation. The ICC statute is full of safeguards against politically motivated prosecutions. I do not understand why the amendments are necessary. Under article 45, the prosecutor must make a solemn undertaking in open court to exercise his or her functions impartially and conscientiously.

Comments were made about the appointment of judges and the size of states. The United Nations operates a general principle of equal respect to each state—it is not like the European Union. The principle does not depend on gross domestic product or size of population. The General Assembly elects its judges to tribunals with a secret ballot, so such a ballot is not unusual in the United Nations. Therefore, the matter is not completely without precedent.

As for the qualifications of judges, I emphasise that the UK negotiating team, which has spent years working with others on setting up the court, spent much time on the elements of the statute that relate to qualifications of judges. We agree that it is important to have top-quality judges and juries. There will be judges who are experienced in humanitarian law, but—this may help the hon. Member for Aldershot—there will also be military judges who are experienced in the rules and laws of war. There will not only be humanitarians serving, which may have been the impression given by the hon. Member for Reigate.

Mr. Garnier: The Minister will also know from the statute that the judges must be selected with regard to a worldwide geographical balance. What does he anticipate will be the geographical balance of the judges?

Mr. Battle: It depends to an extent on ensuring that the whole world is included. The same applies to the United Nations, so there is not a weighting in that system either. I do not think that we should anticipate a weighting system, although the hon. Member for Reigate has put forward the case for a weighting system that goes along the line of the European Union system or a GDP system. I am not sure, because I did not receive a clear view from him, and I am not sure that it is a question to be settled in this debate. The key matter is whether we respect the integrity and independence of the jurors and prosecutor.

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