International Criminal Court Bill

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Mr. Lammy: Does the right hon. Gentleman accept that internationalism can be based on the nation state partaking internationally as well as on the global state acting internationally?

Mr. Maclennan: I take the hon. Gentleman's point. I certainly aspire to the sort of internationalism to which he is attaching his argument. It is undoubtedly desirable that international institutions should co-operate effectively. However, under the preamble to the statute, the parties to the treaty already recognised that their primary concern was the effective implementation of the rules of law and war. In making the nation states primarily responsible for such implementation, they were acknowledging how far we are from the sort of international order to which the hon. Gentleman and I aspire. It was a practical consideration in the minds of the drafters of the treaty rather than an ideological one based on old habits of colonial thinking.

Mr. Browne: The right hon. Gentleman must accept that the preamble to the statute is capable of another interpretation, which is that the duty of each state is to exercise its existing criminal jurisdiction over those responsible for international crime. The preamble can be used to encourage countries to take universal jurisdiction. Equally, it could be understood to mean that there is a recognition that states should exercise the jurisdiction that they have over international crimes. I am genuinely interested to know from the right hon. Gentleman whether, during the discussions on the Rome statute, the issue about the state parties requiring each other to take universal jurisdiction was discussed? It does not figure in the articles of the statute, but that matter may have been debated.

Mr. Maclennan: I believe that such a matters was discussed. It is certainly not a requirement of the statute because it was difficult to obtain from the signatories universal acceptance of that principle. It is right to say that the preamble is not conclusive of the issue, but it leans heavily in the direction of recognising that, if that system of law is to work, full participation of the member states is an important part in achieving its efficacy. Different countries have interpreted that responsibility in different ways. I am not saying that there is a mandatory requirement to do so, but that is the thrust of the statute.

Mr. Hendrick: Is the right hon. Gentleman suggesting that not only the United Kingdom, but all other signatories to the ratification should take on universal jurisdiction? That would negate the need for the ICC because every state would try the person itself. If that were the case and such people were tried within the state concerned, is he not worried that there would be huge inconsistencies among all the signatory states in the level of justice and the punishment that criminals would receive?

4.30 pm

Mr. Maclennan: I must answer that in the negative. It should not be part of our purpose to determine how other countries conform with the statute. In debating these matters, I focus on what I regard as our obligations—the best way for us to seek to extend the rule of law.

The hon. Member for Preston will no doubt wish to develop his own arguments in the course of the debate, but he made an important point. On the diversity of interpretation or performance, if he was arguing that if every country pursued these crimes in their own courts there would be no need for the ICC, I do not agree. The ICC will deal with the circumstances in which countries are unable, for one reason or another, to carry out the law, perhaps because the Government are not in control—as in Bosnia. It is highly desirable that we should seek to use the possibilities of the Bill to reinforce the effectiveness of what has been agreed in the statute.

I will return to the issue of the rationale before I conclude, but I shall now deal with those points that were raised as difficulties to accepting that presence should be the test rather than residence. My party and I have based our alternative draft on the Canadian example, that provides for jurisdiction in which a non-national suspected of crimes committed abroad is present in Canada. Many other countries' implementation Bills will probably follow the Canadian example, including South Africa and the Federal Republic of Germany.

In the other place, Baroness Scotland of Asthal noted that it was the Government's intention to provide that any individual who chooses to make the United Kingdom his home will, from now on, be liable in the United Kingdom for any actions committed overseas before he arrived that were crimes under the Bill. That is a welcome advance. The problem of the residency test is that it creates many legal difficulties. Lord Onslow was supported by many Members of the other place when he pointed out how complicated that would be. The term ``residence'' is complex. ``Halsbury's Laws of England'' states:

``The term `residence' bears varying meanings according to its context, and great caution must be exercised before authorities on the meaning of residence in context such as bankruptcy, taxation, or the old poor law provisions are applied in other contexts. In particular, it is clear that some degree of permanence is required for the acquisition of residence in some contexts, but not, or to a lesser extent, in others. Generally, residence means physical presence other than as casually or as a traveller. In considering whether residence is established the court considers a man's whole environment, especially in relation to his wife and his family, and not merely his physical situation''.

Indeed, Baroness Scotland said:

``One cannot say with any certainty, for example, that every person who has come to the UK

``One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident. It is right that the decision on whether someone is resident here should be made by a competent court with the benefit of all the evidence in a particular case.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 85.]

The trouble is that definitions of residents will have little to do with the degree of moral culpability that is attached to the crimes with which they are charged. The definitions deal solely with the issue of jurisdiction. The test has been used in cases of different sorts, but in a criminal statute such as this, it seems probable that the courts would, in accordance with ordinary rules of statutory interpretation, interpret a legally uncertain phrase such as ``residence'' very narrowly. That means that the Bill will hinge on an uncertain test, or on a legally certain but narrow definition. We should not be happy with either.

The Government indicated in another place that the flexibility provided by the legally uncertain definition would increase the deterrent quality of the provision. If a person suspected of ICC crimes cannot know definitively that he will not be tried if he comes to the United Kingdom, he will not come. However, if other states follow the Canadian example, or even adopt the stricter New Zealand approach, we may find that uncertainty of prosecution in this country makes coming to the United Kingdom the best available option. If the criminal courts adopted the most narrow available formulation, the deterrent effect of a flexible residence test would be significantly reduced. I will not labour these points because our time is limited, but it is possible to sustain my arguments using the jurisprudence of the courts. For that reason, the residency test is not satisfactory, although it marks a step forward from the original Bill.

On the issue of the rationale—a point made by the hon. Member for Reigate, on whom the Minister intervened—it might be helpful if I quoted from a letter that I received from Professor Adam Roberts, the Montague Burton professor of international relations at Oxford. He noted that there had been a certain lack of discussion in another place and quoted from an article in The Guardian that he had written:

``As currently worded the bill applies only to UK residents. It should be amended so that the threat of being taken to the ICC can apply to all those present in the UK. The rationale behind this necessarily terse wording is as follows. A clear and unambiguous capacity for ICC crimes to be investigated and prosecuted promptly and efficiently on a national basis will be important for the effective operation of the ICC itself. As it stands, the bill seems to be based on an assumption that a foreign person alleged to have committed an ICC crime who arrives in the UK (for example on a short visit) would only be the responsibility of the ICC; and in particular that the UK could do nothing about the detention, investigation and prosecution of such person until the ICC itself had taken action. The obvious problem with that assumption is that any ICC action...could be a long process.''

We need only refer to article 15, which deals with the work of the prosecutor, to see that that is true. He continues:

``In reality, if the ICC is to have a chance of trying such a foreign person, it may be necessary that proceedings be initiated on a UK national basis, with the possibility that the case might in the fullness of time be taken over by the ICC.''

I should say in conclusion that I am conscious that we are considering the Bill against an unusual political backdrop. It appears that there are time constraints—I am not referring to this particular sitting, but to later stages of consideration. In no way do I want it to be defeated by the happenstance of the Dissolution of Parliament. None the less, we are addressing an extremely important issue that is central to the effectiveness of our national involvement in the prosecution of the purposes of the statute of Rome.

I do not intend to press the matter to a Division. If the amendment were carried, there would be unfortunate procedural consequences, but regardless of the prospects of that, one must speak in the way one would wish. In the light of the definitions referring to residency, will the Solicitor-General confirm that nothing in the Bill will exclude or limit the United Kingdom's right under previous legislation—for example, the Geneva Conventions Act 1957—to prosecute all those present, even temporarily, in the United Kingdom if they have committed serious violations of existing rules of international law that are applicable in armed conflict? If such an assurance can be given, some of the anxieties about the Bill's structure might be less acute.

I regret that we are deliberating on these matters at this stage in the life of this Parliament, for otherwise I think that we could have done better. I do not doubt the Government's good faith in acting as they have, but a little longer discussion might have led to somewhat different conclusions.

 

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Prepared 3 May 2001