Standing Committee D
Tuesday 1 May 2001
(Afternoon)
[Mr. Frank Cook in the Chair]
New Clause 1
Jurisdiction of the court
``This Act shall have effect, subject to the making of a declaration by Her Majesty's Government in accordance with Article 124 of the ICC Statute, with the proviso that for a period of seven years after the entry into force of the Statute the United Kingdom does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when such crimes are alleged to have been committed by United Kingdom nationals or on United Kingdom territory.''.—[Mrs. Gillan.]
Brought up, and read the First time.
Question proposed [this day], That the clause be read a Second time.
4.30 pm
Question again proposed.
The Chairman: I remind the Committee that we are also considering the following: New clause 5—Ratification: reservations and declarations—
``The Secretary of State shall not ratify the ICC Statute unless—
(a) a report is laid before Parliament, setting out—
(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,
(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
(iii) that report is approved by each House of Parliament.''.
New clause 7—Declaration upon ratification—
``This Act shall have effect subject to the making of a declaration by Her Majesty's Government upon ratification, to be deposited with the Secretary General of the United Nations, as follows—
`Her Majesty's Government, being cognizant of the declaration upon signature by the Government of the State of Israel, will itself reject attempts to interpret its provisions in a politically motivated manner against actions of the United Kingdom and its citizens. Her Majesty's Government hopes that the United Kingdom's expressions of concern at the consequences of politicization of the intended central impartial body will help prevent the undermining of the objectives of the Statute.'.''.
Mr. Edward Garnier (Harborough): Before lunch, I was drawing to the Committee's attention the differences between the reservations or declarations of different states. The Minister called them interpretative declarations, which various states have entered. I was referring in particular to the distinction between those entered by the Governments of France and New Zealand.
The Governments of those two countries have long-standing differences about nuclear weapons testing in the south Pacific, so it is not surprising that their views on nuclear weapons generally are different. Whether we call it a reservation with a capital R, a reservation in lower case or an interpretative declaration, we are faced with the position that two sovereign countries, both state parties to the statute of Rome—France has ratified and I think that New Zealand has also ratified, although I am not sure—are taking diametrically opposed views on matters including the use of nuclear weapons in the definition of war crimes. It does not much matter whether one of them is right and one is wrong; it will cause huge difficulties for the ICC when it is set up following complete ratification.
I briefly draw attention to one or two other problems of which we should be aware following the publication of those interpretative declarations. France
``considers that the term `armed conflict' in article 8, paragraphs 2(b) and (c), in and of itself and in its context, refers to a situation of a kind which does not include the commission of ordinary crimes, including acts of terrorism, whether collective or isolated.''
That is interesting because France has suffered problems with terrorism, not only from Islamic fundamentalists but from those connected with the Corsican freedom movement. The French Government do not love terrorism any more than do the Government of our country, where we have been the victim of terrorism from Ireland and elsewhere.
The French also say:
``The situation referred to in article 8, paragraph 2(b)(xxiii), of the Statute does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law.''
Article 8.2 (b)(xxiii) of the Rome statute refers to utilising
``the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''.
One might be concerned that directing an attack upon a civilian population could amount to a war crime—I use the term loosely—by the terms of the Rome statute, but the French have made it quite clear that they do not accept that that will necessarily be the case in all circumstances.
There were relevant examples in the war against Iraq. As I understand it, Saddam Hussein deliberately placed civilians in buildings of military significance to give some form of spurious protection to those buildings. To say the least, that was bad luck for the civilians who were killed. Against their will, they were placed in a position of vulnerability when the allies legitimately attacked a site of military significance. The French are now making it clear that they will not be frightened by a Saddam Hussein who misuses his population to inhibit a French military objective. That touches on the point made by my hon. Friend the Member for Reigate (Mr. Blunt) last week: he said that the ICC and its requirements might inhibit freedom of military action. Nobody on the Opposition Benches in Committee wants military commanders to feel free to commit war crimes but, on occasion, there will be legitimate military objectives that will be inhibited unless we take the same robust line as the French.
Mr. Crispin Blunt (Reigate): This is an essential issue on which we must focus. Article 8.2(b)(xiii) of the statute of Rome says that a person guilty of a war crime is someone
``Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations''.
I do not need to tell you, Mr. Cook, that it is not much good if one loses a war because one was not able to take a military objective owing to the fact that someone else was committing a war crime. One must be able to execute operations to win a war. To be told that we would be equally guilty of a war crime if we took out such an area—that is the implication of the statute—is a serious issue, and that is why the French clarification is so important.
Mr. Garnier: My hon. Friend's intervention leads me on to my next point. France's fifth interpretative declaration is as follows:
``The Government of the French Republic declares that the term `military advantage' in article 8, paragraph 2(b)(iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof.''
Article 8.2(b) states:
``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts''
will be ``war crimes'', as will the following in 8.2(b)(iv):
``Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated''.
No objective tests can be applicable to sub-paragraph (b)(iv) when one has to deal with adjectives such as ``excessive''.
To use an historic example, I am concerned that the modern equivalent of the bombing of the Ruhr or of the Mohne dam by the RAF might, once the ICC is up and running, constitute a serious violation under article 8. If a sensible and just decision is to be taken in relation to an allegation against a war commander—be he a civilian or military leader under article 8(b)(iv)—it will require an exchange of opinion as much as an assessment of fact. I appreciate that any opinion should be based on fact. No wonder the French have issued an interpretative declaration.
Their sixth declaration is:
``The Government of the French Republic declares that a specific area may be considered a `military objective' as referred to in article 8, paragraph 2 (b) as a whole if, by reason of its situation, nature, use, location, total or partial destruction, capture or neutralization, taking into account the circumstances of the moment, it offers a decisive military advantage.''
In our excitement and enthusiasm in ensuring that war criminals are brought to book, we must not lose sight of the fact that war, even in its defensive definition, is a nasty business. People get killed in war. If the United Kingdom, still less France, is attacked, there is no reason why we should not take steps to defend ourselves with considerable brutality. I do not suppose that anyone is denying us the right to respond in kind, but situations—I use that expression in the manner employed by the statute of Rome—will occasionally arise in which all manner of nasty things happen.
As I said, I am concerned that unless we, like the French, are sufficiently confident to issue interpretative declarations, our military capability will be hamstrung, and I am not sure that that is this Government's intention. I fully accept their motives in wanting to get the Bill on the statute book as quickly as possible, and in wanting to become one of the first 60 ratifiers of the statute of Rome. We have been in Committee for some time and the Bill has been round the course in the other place. I am concerned that, in their altogether laudable desire to achieve their ends, the Government are mindless—in the sense of unwitting—of the fact that we cannot enact the Bill or adhere to the statute of Rome in a vacuum.
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