International Criminal Court Bill

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Ms Oona King (Bethnal Green and Bow): Thank you, Mr. Cook, for the opportunity to contribute briefly to the debate on residency. I enjoyed tremendously the contribution of the hon. Member for Reigate. I have never seen a Tory get so sincerely worked up about the need to track down war criminals and dictators—whether they are in Lady Thatcher's living room or elsewhere—and I welcome that. However, it is important that we state categorically that when a person comes to this country, be they resident or merely present, they will be brought to justice if there is an ICC warrant for their arrest. I know that the Solicitor-General will be able to assure us categorically that such a person would be tried in the UK or extradited by the ICC.

The hon. Member for Reigate raised the further issue of the ICC's being unwilling or unable to act. The Solicitor-General said that that is a different argument and he is right, but I hope that he will forgive me if I pursue one or two related points. In what circumstances might a war criminal be present but not resident in Britain? How would the Government deal with lower-ranking perpetrators of war crimes in this country? If there were no warrant for such a person's arrest but evidence subsequently came to light to suggest that they were indeed suspected of war crimes, and if we did not want to try them here because they were not resident, how would we go about requesting that the ICC initiate its procedure? Would we have the power to detain such a person while we carried out the necessary procedure?

There are many relevant examples in my constituency. It has a large Somalian community and a large Bangladeshi community, and there are many war crimes in both those countries. Someone visiting one of the many world-class tourist attractions in the east end, such as the Crown jewels, might see the person who had tortured them. If the British Government believed that they had received adequate evidence to think that that person was reasonably suspected of war crimes, what would happen? There would not, as yet, be a warrant out for the arrest of that person.

4.45 pm

Another example relates to the Congo, where there is a civil war continuing and where six Red Cross workers were tragically murdered last week. The question that I want to ask in relation to the amendments is this: if there was no jurisdiction over an offender because the Congo had not accepted ICC jurisdiction or because the offender's nationality could not be established, Michael Birnbaum and Peter Carter, the QCs mentioned earlier, maintain that if the offender were to come to the UK, he would not be at risk of prosecution because he would not be a resident. Will the Minister clarify my understanding, which is that he would, in fact, be at risk of prosecution?

Points were made earlier about the happenstance of the dissolution of this Parliament. I think that we would all welcome any measures that might take place afterwards to strengthen the provisions that have been laid out.

The Solicitor-General: The first set of amendments, from the hon. Member for Reigate, would result in universal jurisdiction. The second, from the right hon. Member for Caithness, Sutherland and Easter Ross, would impose the presence test.

The Government have already moved a considerable distance from the consultation draft. We made two major changes to the Bill as a result of listening to what was said in the other place and by the NGOs. One, to which we might return later, relates to extradition and the dual criminality provision, especially in clause 72. In addition, we have here extended the jurisdiction of UK courts to persons resident in the United Kingdom.

It is misleading to say that all the countries that the hon. Member for Reigate listed have taken universal jurisdiction. A presence test is not universal jurisdiction. Many countries have simply passed legislation to enable them to surrender persons to the ICC, and do not even have the equivalent of part V of the Bill in making such crimes domestic crimes. I can, therefore, refute that point now.

We have said that we have severe doubts about taking jurisdiction over people who have no substantial link with the United Kingdom. Historically, our practice has been to take universal jurisdiction only when it is obligatory as a result of an international agreement. The torture convention that the hon. Gentleman mentioned, the hostage taking convention and the grave breaches of the Geneva protocols are cases that involved obligations on our part to take universal jurisdiction, and we did so. I assure the right hon. Gentleman that the Bill does not affect the universal jurisdiction that operates over grave breaches of the Geneva protocols. That universal jurisdiction will remain. As we have seen, the Bill mirrors the provisions of the Geneva protocols to a large extent.

Mr. Blunt: The hon. and learned Gentleman makes the point that where the United Kingdom has been successful when negotiating international treaties in placing an obligation on those who are party to the treaties to implement universal jurisdiction in law, we have done so, but where we have been unsuccessful in achieving universal jurisdiction—as with the statute—we are necessarily going to limit the position in domestic law here as well. That is a pretty shabby argument for not extending universal jurisdiction to the crimes under the statute, if the arguments for universal jurisdiction in matters such as torture stand on their own merits.

The Solicitor-General: Our argument is a principle; I will come to the policy argument in a moment.

In relation to the obligation concerning grave breaches of the Geneva protocols, such as torture and hostage taking, I have a point to make about genocide, which the hon. Member for Reigate mentioned. We have not had universal jurisdiction under the conventions; until now, we have not even had extraterritorial jurisdiction. As a result of clause 51(2), we will have extraterritorial jurisdiction over genocide.

Non-governmental organisations have raised an argument about the preamble. As my hon. Friend the Member for Kilmarnock and Loudoun spotted—perceptively, as in previous debates—the preamble does not impose an obligation. I am informed that there was no discussion at Rome of an obligation for states to take universal jurisdiction.

Mr. Garnier: There was no obligation, in that sense, to sign up to the statute. We did not have to do that.

In the face of the arguments raised in the other place when it was having the same discussion that we are having now, in the face of the arguments advanced by the right hon. Member for Caithness, Sutherland and Easter Ross and by my hon. Friend the Member for Reigate, and in the face of the scepticism expressed by some of the Solicitor-General's colleagues this afternoon, I find it puzzling that the Government's fondness for morality, which underscored their arguments in favour of the ICC, seems to be crumbling somewhat. The hideous expression ``practicality'' is, perhaps, entering the argument. Can the Government assure me that they are not moving away from the so-called moral stance that they advanced when they introduced the Bill to the House of Commons?

The Solicitor-General: I think that I can easily rebut that by invoking the points made by my hon. Friends the Members for Tottenham (Mr. Lammy) and for Preston. There is a principled approach here—an internationalism. We take the view that, where crimes have been committed overseas by persons with whom we have no link, it is for their countries to deal with such matters first. We have faith in the systems of countries such as the United States, which might not ratify the treaty, to deal with such war crimes, crimes against humanity and genocide. If states fail to deal with such crimes, the ICC is there as an expert, independent, powerful international body, with international legitimacy to deal with those grave crimes.

Mr. Blunt: The Solicitor-General says that there might be no link with the United Kingdom. However, the link might well be that the victims are British.

The Solicitor-General: As I said, we rely on countries that have such a link to deal with the matter first. The ICC is then there as a back stop. We believe that the notions of nationality and residence provide those links. We do not consider that mere presence provides a sufficient nexus. The fact that we are taking jurisdiction over residents rather than those present does not mean that those individuals not resident are able to remain in the UK with impunity. While they are present in the UK, they are still liable to arrest and surrender to the ICC and to extradition to another state with jurisdiction over them. We have considered the issues of jurisdiction at great length and we are convinced that the approach that we now advocate leaves no room for the UK to become a safe haven for war criminals.

Mr. Maclennan: I accept what the Solicitor-General says about the UK not being a safe haven for war criminals, but it could be a place where they at least enjoy a rather pleasant holiday.

The Solicitor-General: The right hon. Gentleman has raised the issue of residence. What does the term ``residence'' mean? It is not a status, and it can be neither permanent nor exclusive. I appreciate that it involves uncertainty. However, that very uncertainty will dissuade war criminals from coming to this jurisdiction out of fear that the flexibility of the term may result in their being caught by it. We also take the view that if we tried to spell out the indicia of residence in the Bill we would almost certainly leave gaps, which would defeat our purpose.

My hon. Friend the Member for Bethnal Green and Bow (Ms King) asked what we will be able to do about middle-ranking persons who are here. Article 14 of the Rome statute clearly provides that we can refer such matters to the ICC, and our approach will be to co-operate with the ICC—or, if another state requests it, to extradite persons to the other jurisdiction concerned.

In summary, we have a three-pronged strategy. First, the ICC can request arrest and surrender. Secondly, if persons are resident here we can bring prosecutions. Thirdly, if a state with jurisdiction sought extradition we would consider it in the normal way. That is a strong regime that will send a powerful message of deterrence that the United Kingdom is not a place where war criminals may seek to evade the reach of the law.

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