International Criminal Court Bill [Lords]

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Mr. Garnier: Fortunately, however, the amendment that my hon. Friend the Member for Reigate was discussing is now past history and I can now discuss amendment No. 24. I made that remark not to undermine my hon. Friend—much—[Laughter.]—but to encourage the Solicitor-General to deal fairly with the amendment that my hon. Friend the Member for Chesham and Amersham and I have tabled. The amendment was explored briefly in the other place, but not adequately dealt with by Ministers there. It is quite clear, and I invite the Solicitor-General to tell me why it should not be included in the Bill.

The Solicitor-General: The answer is straightforward and twofold. First, we have an obligation under the statute. If the hon. and learned Gentleman looks at article 59.4 of the statute, he will see that it is not

``open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued''.

We are not allowed to second-guess the ICC. That would be inconsistent with our obligations under the Rome statute.

My second point, not addressed by the hon. and learned Gentleman when discussing a previous clause, is that under the existing precedents—the tribunals for former Yugoslavia and for Rwanda—there is no such provision. Those tribunals were approved by statutory instrument by the previous Government, as I mentioned the other day, and we commend them for that. They do not allow discretion. If the hon. and learned Gentleman examines paragraph 6 of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996, he will see that the provision that he proposes is at odds with the arrangements there.

Those are the two grounds on which I cannot accept the amendment, and I invite the Committee to resist it.

Mr. Gerald Howarth: I should like question the Solicitor-General. It is important to understand that he is saying that there is complete automaticity: if the ICC serves a notice on the British Government through the channels that the Minister of State indicated—the Foreign and Commonwealth Office—the competent court can only satisfy itself that the warrant has been issued by the ICC in accordance with clause 5(2) and that the person is the right person, as we have already discussed. The court has no other authority whatsoever. Even if it were felt that there was a prima facie case for questioning the warrant, it would not be possible to do so. Under the legislation that we are being asked to enact, we will have absolutely no power to intervene in delivering up a British citizen to a court when we feel that it is not justified.

The Solicitor-General: We have gone over this ground before, but such protection is contained, for example, in clause 5(4), which we will come on to shortly, and in the statute itself. Article 17 of the statute makes it quite clear that if we make an attempt to deal with someone, the ICC will not have jurisdiction. We have long maintained the position that the ICC is the best place to decide whether someone has a case to answer, if we have not dealt with them, and that our courts should not attempt to second-guess it. That is set down in the statute.

Mr. Garnier: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Garnier: I beg to move amendment No. 26, in page 4, line 36, at end insert—

``, or

(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''.

The Chairman: With this it will be convenient to consider new schedule 1—Rights of person delivered up to the ICC—

``1. All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales.

2. No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges.

3. The said rights and protections and privileges in paragraph 2 shall include but not be limited to the following—

(a) the presumption of innocence until proven guilty;

(b) a public trial unless the defendant consents to a trial in secret;

(c) the rights to confront and cross-examine witnesses;

(d) conduct of proceedings in the defendant's choice at the public expense;

(e) the right to remain silent without the drawing of adverse inferences for such silence;

(f) all proceedings whether by jury or otherwise to be conducted in the first language of the accused, or with the provision by the ICC to the defence and accused of appropriate and competent interpretation; and

(g) a party who has been acquitted of an offence may not be retried for the same offence, or an offence on the same or similar facts.''.

Mr. Garnier: Much of what is set out in amendment No. 26 and new schedule 1 is uncontroversial. It might be said that there is no need for them because their contents are already present within the Bill or the statute of Rome itself.

3.45 pm

A number of points need to be clarified, not least because the Bill is not a simple replication of the statute of Rome. It requires one—this is what we are paid to do—to assimilate various parts of the Bill, both its main text and the schedules, with the statute of Rome. I want briefly to refer to the procedures and standards that we expect the ICC to apply to defendants and to the cases that come before it when it is set up—whenever that may be.

I remind the Committee that amendment No. 26 would add a new paragraph (c) to clause 5(2), which would state a third reason. Clause 5(2) would then read:

``If the competent court is satisfied—

(a) that the warrant—

(i) is a warrant of the ICC and has been duly endorsed under section 2(3), or

(ii) has been duly issued under section 2(4), and

(b) that the person brought before the court is the person named or described in the warrant,''—

and this is the third alternative—

``or

(c) that there is reason to believe that the person would not receive a fair trial in accordance with principles of United Kingdom law''.

So the court would have to be satisfied on those three bases before it could make a delivery order.

I accept that at least some of our proposals in new schedule 1 are already included in the statute, but the schedule sets out the basic standards that we would want to be included in any proceedings. We in this country and this Parliament are careful to ensure that the rights of victims are properly recognised and protected by the criminal justice system; equally, in doing so, we must ensure that the rights of defendants are adequately protected. As legislators, we have two interests. First, to make sure that the perpetrators of criminal acts are brought to trial, but secondly, to make sure that when they are brought to trial, they are treated according to the proper standards that we expect of our judicial and criminal justice system. We should expect no less of an international criminal court. It does not matter whether we are talking about the rights of UK nationals or the rights of citizens of other countries who are arrested in this country, either because they are here temporarily or because they have fled here to avoid justice in their own countries for war crimes.

The first paragraph of new schedule 1 proposes that:

``All persons delivered up to the ICC under this Act shall be entitled to all the rights, protections and privileges which would be afforded to them in English law if they were facing a trial on indictment in England and Wales.''

I can foresee a practical difficulty straight away, because if one is tried for murder in a civilian court in this country, the chances are—subject to the defendant pleading guilty and, therefore, not requiring a full trial—that one would expect a jury trial, as one would for all indictable-only offences. However, as I understand it, the statute of Rome makes no provision whatsoever for jury trials. Indeed, I can see that there would be difficulties in assembling a jury for an ICC based in The Hague because from where would such a jury come? Although I am not a criminal lawyer myself, it would obviously be attractive to those who practise in the English courts—perhaps I should say the British courts, because juries are available in Scotland as they are in England and Wales—if, in the event of a British defendant being transferred to the ICC, he was tried there by a judge and a British jury.

However, there would be huge practical difficulties with that. It would be almost impossible to find 12 or any other number of British citizens who could be transported to take part in what could be a very long trial. I say that only because of the experience that we have of the Yugoslavia tribunal, which is currently sitting. Some of the trials involving defendants from the former Yugoslavia have taken a very long time, so I accept that there is that difficulty with paragraph 1.

A jury trial may therefore not be possible. However, there is no reason why those defendants who are caught by the Act that the Bill will become in our jurisdiction should not have the protection and privileges that would normally be afforded to them under English law if they were facing trial on indictment in this jurisdiction. That is the preamble. It may well be described as no more than motherhood and apple pie, but I hope the Minister responding to the debate will salute it, even if he does not wish to see it jump into his ministerial car.

In paragraph 2, we suggest that

``No person shall be delivered up to the ICC whether under this Act or otherwise or be subject to any of its powers whether set out in this Act or otherwise, in the absence of a written notice served in each specific case by the ICC at the time of arrest or detention of such a person which guarantees the provision of such rights, protections and privileges.''

Again, I confess that, at least in part, that is provided under the Rome statute. Paragraph 3(a) of article 61, entitled ``Confirmation of the charges before trial'', states:

``Within a reasonable time before the hearing, the person shall:

(a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and

(b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.''

I accept that, under that provision, a defendant will be given at least an outline—and one would hope rather more—of the case that he will have to answer and the basis upon which the prosecution intends to prove his guilt.

It seems to me—no doubt the Solicitor-General has studied this at greater length than I—that there is room, without damaging the statute, and without damaging the policy behind the Bill, to include if not new schedule 1(2) itself, then something along those lines. It must be acceptable to all of us, whichever side of the Committee we are on, to introduce into the Bill a provision that requires that no one shall be delivered up to the extra-territorial court in the absence of a written notice, served in each specific case by the court when the arrest is made, guaranteeing the provision of the rights, protections and privileges referred to in new schedule 1(1).

I would imagine that the Solicitor-General could easily draw up overnight a pro forma document that could be handed to a defendant—

 

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Prepared 26 April 2001