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Session 2000-01
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Standing Committee Debates
International Criminal Court Bill [Lords]

International Criminal Court Bill [Lords]

Standing Committee D

Thursday 3 May 2001


[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

New Clause 2

Government responsibility to maintainlaw and order

    `Nothing in the ICC Statute shall affect the responsibility of the Government to maintain or re-establish law and order in the State, or to defend the unity and territorial integrity of the State, by all legitimate means at its disposal.'.—[Mrs. Gillan.]

    Brought up, and read the First time.

9.55 am

Mrs. Cheryl Gillan (Chesham and Amersham): I beg to move, That the clause be read a Second time.

In proposing new clause 2, I would like to apologise to the Committee for my unavoidable absence this afternoon. The Government, in their wisdom, have timetabled a discussion on the Floor of the House that means that I am required elsewhere. The fact that I will not participate in the final sitting is meant as no disrespect to the Chair, the Minister, or any member of the Committee.

As you can see, Mr. Cook, I am not rigged for silent running—I am running rather noisily. I would like to thank you for good-naturedly chairing the Committee. Last week British Gas mistakenly informed my husband that I was the late Cheryl Gillan; in the course of proceedings, I know that you have been called the late Mr. Cook, but I hope that you will never be described as I was—not in the next 10 years, at least.

I thank the Ministers for their forbearance and their constructive and informative approach to the Bill on most occasions—[Interruption.] If the Solicitor-General finds that the cap fits, I am sure that he will wear it. Even in their absence, I thank my hon. Friends for providing strong support, and I thank my hon. and learned Friend the Member for Harborough (Mr. Garnier) for ably leading the discussion on the delicate legal issues arising from the Bill. I thank everybody for their help and support, and I am sure that this afternoon will proceed even more rapidly without me.

I hoped that the Minister of State, Foreign and Commonwealth Office, would seriously consider accepting new clause 2. He has not approached me, so I presume that there is not a snowflake's chance in Hades of him accepting it. However, it would include in the Bill almost the identical words as those in article 8.3 of the Rome statute, which reads:

    ``Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.''

The new clause reiterates that, but widens it slightly. It reads:

    ``Nothing in the ICC Statute shall affect the responsibility''.

I presume that that is the intention of article 8.3; the new clause is our interpretation of it.

The purpose of the new clause is to offer protection. Earlier this week, we saw a first-class job carried out by our police service in controlling a potentially serious and riotous situation on the streets of London—civil unrest. The police are to be congratulated on a successful operation carried out legitimately and against the background of last year's similar protests and violence, which resulted in mayhem and fairly dreadful criminal activity on the streets of our capital city.

The purpose of the new clause is to highlight the circumstances surrounding civil disorder and the actions that any future Government may need to take to keep the peace and to defend the country. We are trying to ensure that the country can maintain control over its internal matters without the inhibition of potential interference from the ICC. In circumstances involving an event of greater gravity than this week's demonstrations—in Northern Ireland, for example, or in any other part of the UK for that matter—it is important to ensure that the ICC could not begin an investigation, raise charges or issue warrants to prosecute personnel who had been engaged in any controlling activity.

The matter was pursued in another place by my noble Friend Lord Howell of Guildford, who expressed it extremely well vis-a-vis Northern Ireland. I have no hesitation in referring to his words. He said:

    ``The current inquiry into the events of Bloody Sunday in 1972 in Northern Ireland is revealing various new facts and aspects''—

as all members of the Committee will be aware. He continued:

    ``It could conclude that no further action is justified and all the truth, rumours and legends have come out. Our Government would then decide that that was the end of the matter. Could the International Criminal Court then step in on such a matter of civil order and pursue the investigations on the grounds that they had not been dealt with thoroughly enough? The amendment''—

the drafting of which is the same as the new clause—

    ``would ensure that should another such event occur . . . and should the animosities, miseries and hatreds of that event be perpetuated, the Government would be within their rights in maintaining and establishing law and order throughout the United Kingdom.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 50.]

The Government's response to the amendment in the other place was brief: they merely gave an assurance. Conservative Members still feel that it should have been included in the Bill and, given that the Minister is so keen to follow the statute, cannot understand why it has not been so included. When people examine the legislation in future, it is surely better that the Government's intentions in formulating it should be clear. If there is no problem with the new clause—which is the impression that I gained from the Government's reaction in the other place—I do not understand why the Minister cannot accept it, and must ask him to explain.

The Minister of State, Foreign and Commonwealth Office (Mr. John Battle): The new clause repeats the language of article 8.3, except that the phrase

    ``Nothing in paragraph 2(c) and (e)''

is replaced with

    ``Nothing in the ICC Statute''.

It concludes with the words ``at its disposal.'' I put it to the hon. Member for Chesham and Amersham (Mrs. Gillan) that the new clause would have absolutely no legal consequence whatsoever. Keeping the big picture in mind, we must always remember that the Bill will not be retrospective. When the hon. Lady referred to the inquiries in Northern Ireland, she read the words, ``should another such event occur''. That was helpful, because the Bill covers only future events, not those that have already happened. That applies even to inquiries into current events.

I am happy to give the hon. Lady the assurance that the Opposition seem to be seeking: nothing in the ICC statute affects the Government's responsibility or ability to maintain law and order and national defence by legitimate means. For the avoidance of any doubt, article 8.3 of the statute, which relates to war crimes and internal conflict, provides the cover. We should note that the same reassurance is given in additional protocol 2 to article 3 of the Geneva conventions, to which we are party. Of course we believe that it is important for the ICC to have jurisdiction over crimes committed in internal armed conflicts. The vast majority of conflicts in today's world are not between states but internal, within countries' borders. The provisions in the Rome statute and additional protocol were designed to give states reassurance that the specific provisions regulating internal armed conflicts in no way affect their responsibilities to defend their territory and maintain law and order by legitimate means.

Such a reassurance is appropriate in an international treaty, but it would be entirely unnecessary and inappropriate to replicate such a provision in domestic criminal legislation. That is not just the Government's view; there is common precedent for it. As we have already mentioned, the Geneva Conventions (Amendment) Act 1995, which implemented the two additional protocols to the Geneva conventions, was passed and agreed to by the previous Government. That Act did not repeat nor specifically refer to article 3 of additional protocol 2 for an obvious reason: it would have been unnecessary.

I see no reason to depart from the previous Government's stance on such matters. There are no substantial or convincing arguments that Opposition Members have actually changed their minds on it. I hope that that will reassure the hon. Lady that the amendment is unnecessary, and that she will feel able to withdraw it.

Mrs. Gillan: The Minister's response is not unexpected and, at the very least, highlights the need for future interpreters of this law—when it becomes law—to ensure that the treaty is read alongside it. More importantly, our consideration of the Bill in Committee will play an important role in such interpretation, and confirm the Government's pick-and-mix attitude to the statute. Pepper v. Hart was a sensible ruling.

It still seems illogical for the Minister to rely on something that is in the statute of Rome and not included in the legislation, and to assure us that it is taken into consideration and implied in the Bill, when he rejected, for example, new clause 1 and the operation of article 124 of the statute. I do not want to turn this into a workshop on article 124, on which we have already had lengthy discussions, but it seems that there are inherent dangers in the Government's approach to the ratification process. They rely on wording contained within the statute on one occasion but not on another. That leaves potential difficulties for future generations.

The Minister has, however, revealed his hand. I am sure that he has strict riding orders not to accept any form of amendment to the Bill. I therefore beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3

Defence against unlawful use of force

    ``(1) A person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for survival of the person, or another person, or property which is essential for accomplishing a military mission, when he acts against an imminent and unlawful use of force in a manner proportionate to the degree of danger to that person, or the other person, or property protected.

    (2) A person may rely on the above defence if he can establish, on the balance of probabilities, that he was acting as part of a defensive operation and/or there was a necessity to act in this way.

    (3) It shall be a defence to any allegation under the ICC Statute, that the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been—

    (a) caused by duress resulting from a threat of imminent death or constituting imminent serious bodily harm against that person, or another person, and

    (b) the person acts necessarily and reasonably to avoid this threat.''.—[Mr. Garnier.]

Brought up, and read the First time.


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