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International Criminal Court (Remand Time) Order 2008

Volume 704: debated on Wednesday 29 October 2008

rose to move, That the Grand Committee do report to the House that it has considered the International Criminal Court (Remand Time) Order 2008.

The noble Lord said: The International Criminal Court Act 2001 ensures that the United Kingdom complies with the requirements of the statute of Rome, which created the International Criminal Court, and can play a full part in the life of that court. Today, in an effort further to ensure that the UK plays a key role in the life of the court and continues to comply with all the court’s procedural rules, we seek to specify the total upper limit of time for which an individual arrested under Section 3 of the Act can be held on remand, along with the upper limit of time for which an individual can be held on remand on any single occasion following a Section 3 provisional arrest.

The order intends to set those limits at 60 days and 18 days respectively. The UK believes it to be of fundamental importance to bring to justice perpetrators of international crime, including genocide, war crimes and crimes against humanity. We are rightly a signatory to the Rome statute, which, as I said, established the International Criminal Court, which has jurisdiction over the crimes that I mentioned, and we were among the court’s founding members. We have also supported the International Criminal Tribunal, which was established for the former Yugoslavia and for Rwanda.

The UK has legislated through the International Criminal Court Act 2001 to ensure that we comply fully with our obligations as set out in the Rome statute. It is now necessary to update the existing legislation in order to continue to fulfil our obligations to the court and to meet its procedural rules, specifically in the length of time an accused person can be held on remand following a request from the International Criminal Court for a provisional arrest. Under Section 2 of the Act, the UK can successfully execute non-urgent requests received from the court for the arrest and surrender of accused persons. In urgent cases, however, the court may request that the UK provisionally arrest a person alleged to have committed a crime over which it has jurisdiction. This arrest does not lead to surrender until a Section 2 request is received and is properly considered by a competent UK court. This is legislated for in Section 3 of the Act.

When the International Criminal Court Act 2001 was adopted, the court had not yet decided the total length of time for which a person may be remanded in custody following his provisional arrest. This is because such rules were not to be adopted until the first meeting of the Assembly of States Parties, which itself took place only after 60 states had ratified the Rome statute.

Such rules have now been adopted by the court and can be found in Rule 188 of the International Criminal Court Rules of Procedure and Evidence. This sets the upper limit for the total number of days a person can be held on remand as 60. Consequently, and as required by Section 4(4)(b) of the International Criminal Court Act 2001, an Order in Council is needed to update our existing legislation and ensure that the UK continues to meet its obligations to the court.

At the same time it is advisable to update the International Criminal Court Act 2001 to reflect the maximum length of time a person can be held on remand on any single occasion following a provisional arrest under Section 3 of the International Criminal Court Act. This is again done through an Order in Council process as set out in Section 4(4)(b) of the Act.

In relation to the equivalent provisions for the two other United Nations established courts I referred to earlier, the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda, a limit of 18 days was adopted. This was done through the United Nations (International Tribunal) (Former Yugoslavia) Order 1996 and the United Nations (International Tribunal) (Rwanda) Order 1996. I see no reason to deviate from this precedent and 18 days is again the proposed limit that a person may be held on remand on any single occasion. Both these limits will ensure that a person arrested following a provisional arrest request from the ICC will not be held indefinitely and ensure that justice is administered in an expedient fashion. This is what the order seeks to achieve. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the International Criminal Court (Remand Time) Order 2008. 27th report from the Joint Committee on Statutory Instruments.—(Lord Brett.)

As I am sure that in 2001 the International Criminal Court Act received the closest scrutiny in this House—I was not here and therefore was not part and parcel of that process—I want to ask a couple of questions, and I hope this does not sound as though I should know the answer.

This order relates to a provisional warrant, which by definition is not a full warrant. What is being proposed is that under a provisional warrant, the maximum period of remand on the first occasion should be 18 days and the total amount of time should be 60 days. That is clear. What I am not clear about is what happens when the full warrant is issued. Presumably under the full warrant, the process starts all over again. It would be interesting to know what the absolute maximum amount of time under any International Criminal Court warrant is; that is, under both the provisional and the full warrant. It may be that they are one and the same thing—and this is where I apologise because my ignorance of the previous legislation is now going to show—but there is a possibility that 60 days is not the limit on the time that someone might be held on remand in custody under this international warrant. That is my first question.

The second concerns the appeal procedure under the warrant, and to whom an appeal against the warrant is made. Under an international warrant, presumably the offence does not have to be one that would be an offence in this country; it could be something which is an offence in another country, but not applicable here. There has been a recent case under the European arrest warrant where the offence was not related to one that we would recognise. To whom is an appeal made against arrest under the warrant? Is it to a judge in this country, is it to the High Court, or are there no appeal proceedings?

Those are the two main questions and I hope that the noble Lord will be able to answer them.

We fully support every action taken by the Government to comply with the needs of the International Criminal Court, as we did with the International Criminal Tribunals for former Yugoslavia and Rwanda, the rules for which this order follows.

We approve of the steps that are being taken to bring to justice those who commit crimes specified in the Rome statute: crimes of genocide, crimes against humanity, war crimes and crimes of aggression. Not only do we have no objection to the order, but we warmly approve of it and take this opportunity only to ask for some clarification of how criminals who spill into our jurisdiction will be apprehended and handed over to the International Criminal Court. What action is being taken to establish a tracking unit in the office of the International Criminal Court to check on the movement of people who are wanted by the court and who may travel clandestinely from one country to another to avoid arrest? That may be particularly important in the case of sealed indictments, where the accused person might conceivably get through our immigration controls as an ordinary tourist without the immigration authorities being aware that he was wanted by the court.

In the case of previous sealed indictments, the ICC notified certain countries to which it was considered likely that a person might flee. Jean-Pierre Bemba was wanted for offences in the Central African Republic and arrested in Belgium the day after the pre-trial chamber found that there were reasonable grounds to believe that he bore individual criminal responsibility for war crimes and crimes against humanity committed in the Central African Republic. In that case, it was known that he was in Belgium—I believe that he had property there—but the whereabouts of a wanted person may not always be as clear as it was in that case.

Tracking units were established for both the ICTY and the ICTR, and it would be logical to extend the concept of the ICC as it has been advocated by Human Rights Watch and others. What would the mechanism be for implementing the proposal, and does it have the Government's support? I understand that there are no sealed indictments at the moment in respect of any of the states where offences have been committed under the Rome statute—the DRC, Uganda, the Central African Republic and Sudan—but what would happen where an alleged criminal wanted by the ICC comes here as an ordinary tourist, say, without it being suspected by the immigration authorities that he is wanted? By what procedures might such a person be apprehended if we did not know that the ICC was after him?

The first question was: what is the maximum time limit when a formal request is received? There is no maximum under the statute. It would depend on how long the proceedings would take, but it is intended that the procedure would be fairly brief, as issues to be considered by the court are time-limited to the order and the warrant issued by the court.

On the route to appeal, once a Section 2 warrant has been received it is for the magistrate’s court to decide whether to make a delivery order. If the court makes a delivery order, it can be challenged by the person concerned by applying to the High Court for a writ of habeas corpus.

On tracking units, there is a mechanism for the ICC to inform the UK of the likelihood of persons coming, but I am not fully aware of the detail that would apply or of the procedures, so I will get back to the noble Lord in due course, if that is acceptable.

I hope that I have not missed any questions on the order. I appreciate the views expressed by colleagues and many of the wider concerns of those affected by the order. We are grateful for the ongoing support of colleagues in the House.

It is the view that the order is necessary to allow the UK to continue to fulfil its obligations to the International Criminal Court, particularly those found in its rules and procedures. In this way, the UK can continue to support the court fully in its important work. With the caveat that I will respond to some questions in writing, I commend the order to the Committee.

On Question, Motion agreed to.