International Criminal Court Bill [Lords]

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Mr. Battle: Admiral Sir Michael Boyce has not got it quite right.

Mrs. Gillan: I shall give the Minister the opportunity to elaborate on that in his response. On 7 March in BBC Newsline, the former NATO commander Admiral Sir James Eberle said that it was vital that commanders in the field should not be put in a position where they are concerned about what is right and what is wrong at the expense of risking their own lives and those of the men they command. It is proper that we examine those reasonable worries of senior defence people, whether named or unnamed, given that Ministers are aware that, if the wrong rules of engagement are set, commanders could find themselves liable to prosecution as war criminals—as was set out by an unnamed senior defence source. The Minister will need to make sure that the record is clear on such matters.

Will the Minister explain the position of the new European army? We are facing the prospect of a force that made up of soldiers, airmen, naval officers and ratings from many countries. A British soldier will be serving alongside a French soldier and they will be commanded by a European Union military planning centre. I am not making the political point that we are developing a European army that will be outwith NATO. That argument can be deployed in another place.

Mr. Mike Gapes (Ilford, South): Is the hon. Lady aware that British soldiers have served under French command in Bosnia, fought alongside French soldiers in the Gulf and regularly undertake activities with French soldiers in NATO? What is the problem?

Mrs. Gillan: I am glad that the hon. Gentleman does not perceive a problem. I hope for the same reassurance from the Front Bench. However, the ICC is not yet in existence, and the Bill is not applicable in such circumstances. Is he suggesting that the Bill should be retrospective? He should wait until I have deployed my argument, because I am asking questions that need to be answered.

If a European force is subject to the command of a European military planning centre and chain of command—I may not be using the correct military phrases; if not, I apologise to members of the Committee who have served in the armed forces—and a French soldier is sitting alongside a British soldier who is being told what to do by a European force, is the French soldier and not the British soldier subject to the seven-year opt-out? Will the French soldier be ordered to carry out the actions, because there will be no danger of him being brought to book under French statute? Why should soldiers in this country be disadvantaged vis-a-vis French soldiers operating in the same territory under a common chain of command?

Mr. Blunt: My hon. Friend has raised an intriguing question and we look forward to hearing the Minister respond to it. Many operations are carried out under international auspices, especially those of the European rapid reaction force. A European operation may be under the command of a Finnish general. If the Council of Ministers gave an instruction and actions were committed that amounted to a war crime warranting a prosecution by the ICC, who would end up being held responsible when, in executing a legal order, all parts of the chain of command are guilty?

Mrs. Gillan: It might come as a shock to my hon. Friend, but I do not know.

The Chairman: Order. I find no one's head intrinsically offensive when looking at the rear of it, but I remind both Front Benchers that their remarks should be addressed to the Chair.

Mrs. Gillan: No discourtesy was intended, Mr. Cook. I take your admonition on the chin.

The Chairman: Which one?

Mrs. Gillan: I shall let that comment pass. I do not know the answer to my hon. Friend's question. I could presume to give an answer, but, sadly, I am not in government and I am waiting for the Minister to reply.

Mr. Battle: I can help the hon. Lady—she does not need to wrestle with those questions. The ICC will not create new laws. If British soldiers break our laws, they will be brought to book under our laws, irrespective of whether the soldier is serving under a French, German or Australian command. If they break the law, they will be dealt with under British law, so what is the problem?

Mrs. Gillan: I do not think that the Minister has even understood the problem, which greatly worries me. If a French soldier is standing alongside a British soldier, taking part in the same action, firing guns simultaneously, the British soldier would be subject to our legislation, but the French soldier could take advantage of the seven-year opt-out.

Mr. Garnier: I do not want to distract my hon. Friend from her argument, but I can suggest an answer. The British soldier would, under the complementarity rule, be subject to the British courts first. If that proved unsatisfactory, the ICC would have jurisdiction. If the French soldier committed a war crime, he would be subject to French national law and would be tried under the French courts in Paris. He would not subsequently be extradited to the ICC if the ICC thought that the French had dealt with the matter unsatisfactorily. That is the answer to my hon. Friend's question. The Minister could have answered it, but was not perhaps up to speed.

Mr. Battle: I notice a wink in the hon. and learned Gentleman's eye.

Mr. Garnier: Having cast that problem aside, I look forward to hearing what my hon. Friend has to say.

Mrs. Gillan: I am grateful to my hon. and learned Friend, who confirms that the French soldier has an advantage over the British soldier.

The treaty took many years to negotiate with the input of many people around the world motivated by the intention that eventually there would be a vehicle to ensure that the worst perpetrators of abuses on other human beings were, rightly, brought to justice. Considerable thought must have gone into article 124; it must have been put into statute with good reason. Although I share the Government's aims and objectives in wanting the ICC to come into existence, we should have considered article 124 more carefully and taken advantage of its provisions to ensure that our troops and citizens are protected during the court's emergent phases.

12.45 pm

Mr. Gerald Howarth: The French Government have entered not only reservations, but specific reservations. If the French Government were as confident as the British Labour Government that in no circumstances would their troops ever be arraigned before the ICC, they would have had no need to enter any reservations. Have they not entered reservations not because they know that they have initial responsibility for holding their own forces to account, but because they fear that there is a risk that their troops, acting in pursuit of the French national interest, would be arraigned before the court? I shall refer to those reservations if I catch your eye later, Mr. Cook.

Mrs. Gillan: I am grateful for my hon. Friend's intervention. I am sure that he will catch your eye eventually, Mr. Cook.

I have made my case for new clause 1, which is of primary importance. We would have expected article 124 to be fully incorporated in the measure, as was made clear by my noble Friends in another place and by the shadow Foreign Secretary, my right hon. Friend the Member for Horsham (Mr. Maude), on Second Reading. I hope when the Minister responds to the debate he will pay attention to our reasonable request to accept the new clause. It embodies the spirit in which the treaty was negotiated and placed before the nations of the world. I see no reason why we should disadvantage British citizens and the United Kingdom.

In 1999 the then Minister of State, Foreign and Commonwealth Office, the hon. Member for Neath, said that he hoped that as few countries as possible would take advantage of the opt out. What discussions were held between the Department and the French foreign office? It seems that the arguments deployed must have fallen on deaf ears. It would help the Committee to know what arguments the French and our Ministers deployed. Will the Minister tell us whether the other countries that are seeking to ratify the proposal have said whether they will incorporate article 124 into their legislation? Will the French stand in glorious isolation in offering protection to their armed forces and citizens?

Having spoken to new clause 1, I shall resume my seat and allow my hon. Friends to promote the other clauses in the group.

Mr. Garnier: I shall concentrate on new clause 5, which is of a slightly different character from new clause 1. My hon. Friend the Member for Chesham and Amersham spoke about the jurisdiction of the court; I shall speak about the relationship between this place and the Government in the making of treaties. I shall, no doubt, be accused of being obsessed with the problem; I bring out that little hobby-horse in most of our sittings, and by the time we have completed the Committee stage it will be pretty fit. I want to develop the arguments because they are important, relating to the extent of parliamentary involvement with the Executive branch of government when the Government sign and ratify international treaties and make reservations or declarations under those treaties.

There was some discussion of the matter in the other place on 20 March, when broadly similar new clauses and amendments were discussed. The Liberal Democrat peer Lord Lester of Herne Hill advanced several arguments. Surprisingly, he said that he was not as full-hearted a democratic as my noble Friend Lord Howell of Guildford: whereas Lord Howell, in advancing the equivalent of new clause 5 in the other place, wanted to explore the relationship between Parliament and the Government's treaty-making powers, Lord Lester said that that was taking democracy far too far. That is interesting, although he might have taken his party a little too far.

Lord Lester said that a little while ago he had introduced a private Member's Bill in the other place that required the Government to print impact statements to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. He went on to say that the previous Government had accepted impact statements, and told the House that such statements were now laid with treaties so that parliamentarians had some idea of the object, purpose and impact of any given treaty. He went on to say that he hoped that in future important treaties that the Government were minded to ratify would be referred to a Select Committee in the other place, with a view to those treaties being properly examined. He was not prepared to go as far as we would like—in the case of statute of Rome, to require the Secretary of State, prior to ratification, to lay a report before Parliament that would detail any reservations or declarations that the Government propose to make, and to require that that report should be approved by both Houses of Parliament. The Government do not intend to make any reservations, so there would not be much in that part of the report. I am not yet sure whether the Government intend to make any declarations, unless they intend that any communications made to it by the ICC, be they delivery orders or requests, should be made in English. If any other such declarations are to be made, we have yet to hear about them. As the Bill left the other place, the Government were not of a mind to introduce any such declarations.

While Lord Lester dealt with the arguments that we are now having on a constitutional level, my noble Friend Lord Howell dealt with them on a more practical level. He was worried about the consequences of the introduction of the statute into our domestic law for our citizens, especially those in uniform. Introducing his amendment, he said:

    ``The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1290.]

We all understand that article 120 makes life a little difficult for legislators, as reservations may not be made to the statute of Rome. That is clear in the statute, but one must assume that the French, Israelis and New Zealanders signed up to the same statute, yet those three countries, among others, have issued detailed reservations—capital R reservations rather than small R reservations, according to the language used in the other place—on signature of the statute. Those reservations may be compared with the reservations or declarations to which the Attorney-General referred, which have been entered by state parties such as Austria, Finland, Belize and Norway.

Austria, for example, has issued a declaration or reservation stating that:

    ``requests for co-operation and any documents supporting the request shall either be in or be accompanied by a translation into the German language.''

The Attorney-General referred to that sort of reservation. The Kingdom of Belgium declares that:

    ``the Ministry of Justice is the authority competent to receive requests for co-operation.''

Belize declares that:

    ``all requests made to it in accordance with Chapter 9 be sent through diplomatic channels.''

All those declarations or reservations are uncontroversial. The Republic of Finland declares that:

    ``requests for co-operation shall be transmitted either through the diplomatic channel or directly to the Ministry of Justice''.

Those declarations stand in marked contrast to the reservations drafted by France, New Zealand and Israel.

I share with the Committee some of the reservations entered by France. The first of what are called ``interpreted declarations'' states:

    ``The provisions of the Statute of the International Criminal Court do not preclude France from exercising its inherent right of self-defence in conformity with Article 51 of the Charter.''

Secondly, the declaration states:

    ``The provisions of article 8 of the Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons nor impair the other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defence, unless nuclear weapons or the other weapons referred to herein become subject in the future to a comprehensive ban and are specified in an annex to the Statute by means of an amendment adopted in accordance with the provisions of articles 121 and 123.''

As we all know, article 8 sets out the list of crimes that can be dealt with by the ICC. The French declaration is contrary to that of the Government of New Zealand, which states:

    ``The Government of New Zealand notes that the majority of the war crimes specified in article 8 of the Rome Statute, in particular those in articles 8(2)(b)(i)-(v) and 8(2)(e)(i)-(iv), which relate to various kinds of attacks on civilian targets, make no reference to the type of the weapons employed to commit the particular crime. The Government of New Zealand recalls that the fundamental principle that underpins international humanitarian law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that, rather than being limited to weaponry of an earlier time, this branch of law has evolved, and continues to evolve, to meet contemporary circumstances. Accordingly, it is the view of the Government of New Zealand that it would be inconsistent with principles of international humanitarian law to purport to limit the scope of article 8, in particular article 8(2)(b), to events that involve conventional weapons only.''

Two nation states that are signatories to the statute take a wholly different and diametrically opposed view as to the appropriateness, within the confines of the jurisdiction of the court, of nuclear weapons.

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