International Criminal Court Bill [Lords]

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Mr. Maclennan: Some of the cases have dealt with the consequences of war. The Corfu channel case dealt with the mining of the Corfu straits, and that was a military matter. Whether or not the ICC operates against the background of military interchange is irrelevant to its authority. The authority of those two courts stemmed from the substantial numbers of people who subscribed to their founding statutes and who had expressed advance willingness to live by their judgments.

Mr. Garnier: I misheard the right hon. Gentleman and did not hear the geographical location that he mentioned. I thought that he was referring to an abstruse Japanese channel that I had not heard of. Although I have now corrected my understanding of the case to which he referred, I shall not be moved from my argument—even though I know that the Corfu channel would be of interest to any formal naval man who was in the room.

I remind the right hon. Gentleman that defendants appear before the international criminal tribunal for former Yugoslavia only because NATO troops go in, pick them out and arrest them. At last, we see the new Serbian Government charging their own soldiers, and last week, or the week before, the domestic authorities arrested 183 Serb military folk. That is an advance, and complementarity is being exercised before the ICC has been set up. The tribunal in The Hague may have encouraged such actions.

None of the previous defendants would have reached The Hague if the allies had not had been present in military strength. That is not controversial; I would have thought that it was undeniable. I am not sure whether the right hon. Gentleman is right or wrong, but he disturbs my point.

I do not wish to progress along the line taken by the right hon. Gentleman's noble Friend Lord Lester of Home Hill about exercising the royal prerogative. That is my hobby horse, and I have mentioned it sufficiently for the Committee to know my views.

I remind the Committee of the manner in which the Government briefly dealt with the important matter in the other place. The Attorney-General said that noble Lords had pointed out that article 120 of the Rome Statute states:

    ``no reservations may be made to this Statute. Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the fact—already found in some declarations—that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one.

    We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1301-02.]

That was what the Attorney-General said more than a month ago. It may be that the Government's thinking process has moved on a touch. I remind the Government that the attitude of the French is not destructive—like them, the British are a nuclear power, have the ability to project military power well beyond the boundaries of our country, and should have a more rational and self-confident approach to the statute.

5.15 pm

Mr. Gerald Howarth (Aldershot): Can my hon. and learned Friend tell the Committee what effect the reservations entered by the French have on their obligations under the treaty? They are described as ``interpretive declarations''. Is it a case of the French getting their retaliation in first in terms of the interpretation of various words in the statute?

Mr. Garnier: If I were a member of the new Labour party, I would say that it was called ``sending a message''. The French Government have entered the negotiations not because they like to ride in the air, but as a symbol of their diplomatic will. They are expressing their attitude about their adherence to the treaty and how they think that it should affect them. The declaration under article 124 is the only one of immediate practical effect following the introduction of the treaty. Once the seven-year period has passed, however, their interpretive declarations will affect the way in which French courts consider the matter when their citizens, or citizens of other countries, are tried in them as part of the complementarity process.

The declarations are clear: they can be matched up with articles in the statute, and, a Frenchman—and, more importantly, a French general—can see precisely where he stands. That says to me that the French Government are prepared to support wholeheartedly their soldiers, airmen and naval commanders in the carrying out of their military duties on behalf of the French Republic. That is not in this Government's mind, and I suspect that, although a given Secretary of State for Defence—even a Labour one—will not act capriciously and disloyally towards the troops that he or the Prime Minister requires to go into battle on our behalf, it must be comforting to French soldiers that there is a wording that makes it clear beyond doubt that they should not feel inhibited in the least in what they do. Any French solider who commits a war crime will be subject to French law, but, when the French courts decide whether there has been an infringement of French law, they will no doubt want to look at the declarations and the evidence relating to the particular operation under scrutiny. In the light of those declarations, they will no doubt err on the side of caution before convicting a French general, politician or soldier.

As I said a moment ago, the Government's response to Opposition amendments dealt fairly briefly with that point. The Government seem to rely on the kind of language used by Louis XIV—``I have said what I have said, and that is an end of it.'' I am not sure that that is a satisfactory way to deal with legislation, especially when, frustratingly, the legislation concerned cannot bite on the statute of Rome. It is interesting that the Liberal Democrats in the other place were happy to go along with the Government's line, despite the history of Lord Lester's practice with which we were provided in that debate. I, on the other hand, am worried that we are giving the Government the ability to give away the powers of this country, without allowing Parliament to have any purchase on the matter.

I conclude by quoting Lord Howell, who said:

    ``Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent?''

The lawyer, Lord Lester, was concerned that, if the course that we are now advocating were accepted, it would set a precedent. Parliament used to be a master of its own proceedings. It did not have to be worried about precedents; it just passed another law. My noble Friend went on:

    ``I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.

    The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1305-06.]

There we have it. It is a matter of attitude whether we should behave in a particular way towards the statute.

We are taking a hugely important step in respect of the ICC. If we at any stage allow our gaze to be distracted by our enthusiasm to pass the Bill and ratify the treaty, so that we are negligent of the needs of our armed forces and careless with the demographic needs of Parliament to have some control over the Executive—which is difficult in this present Parliament—we are doing not only ourselves, but those who sent us here, a huge disservice.

Mr. Blunt: It is a pleasure to speak to new clause 7 and to follow my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) who spoke to new clause 1 and new clause 5 respectively. Many of the themes that they used to support their arguments go to the heart of the International Criminal Court.

The Minister explained that we are protected by complentarity and that people will be tried first in a British court. In the usual run of events, that will be fine. If the court works as we want it to, there will be no problem—but what if there is a problem? The Government cannot say in Committee or elsewhere that the statute will work all right and there will be no problems with the ICC. They cannot guarantee that. That message runs through the declarations that have been made and the reservations that have been entered by other states upon signature.

New clause 7 refers specifically to the declaration made by the state of Israel, which may be the classic case of a state's concern about the statute. Unlike most other countries, Israel has been engaged in an almost constant battle for its survival: it has had to fight for its existence on at least four occasions. Therefore, it is unsurprising that it is the state that is the most concerned. It is supreme irony that it is the appalling crimes that were committed against the Jewish people that provided the strongest impetus for the creation of the ICC.

Paragraph 2 of the Israeli declaration upon signature was not quoted by my hon. and learned Friend the Member for Harborough, but it is especially important. It states:

    ``As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950's, actively participated in all stages of the formation of such a court. Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the holocaust—the greatest and most heinous crime to have been committed in the history of mankind—enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute. Responsibly, possessing the same sense of mission, they currently support the work of the ICC Preparatory Commission.''

It is a serious indictment of the statute that the state that was born out of the greatest crime against humanity of the 20th century saw fit to add the following words, which my hon. and learned Friend did quote:

    ``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states.''

The new clauses should not be discussed with reference to the court working perfectly, much as we all want it to. Rather, the Committee must discuss the detail of the Bill in the context of our obligation to discharge our duty to defend the United Kingdom and its global role in promoting human rights and employing its armed forces to defend liberty. Before the Committee allows the Bill to progress to the Report stage in the House of Commons, it must be confident that the court will work as intended, and that if it does not, some cover is in place for our armed forces.

We cannot put real cover in place, because we have signed the statute and it is a done deal. However, during the debate on my first amendments during the third sitting, I asked the Government to plant a flag in the ground to make it clear how we expect the court to develop. Israel has done that, as, to a degree, has France. New clause 7 draws specific attention to Israel's declaration, and it merely asks the Government to make a declaration, when the treaty is ratified, that we are aware of the Israeli Government's statement about the court, and that we will

    ``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.''.'.

Nothing more can be done, except in relation to article 124, which I will discuss shortly, and the ability to protect our armed forces from the provisions of article 8 for seven years. All we can do is to declare that we will sign and ratify the statute, but in the course of our proceedings in Committee send a warning that we will not give the ICC and the states parties to it a blank cheque to behave in a way that is inimical to the proper interests of the United Kingdom.

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