The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal)
My Lords, I beg to move that this Bill be now read a second time.I cannot overstate the historic importance of the creation of the International Criminal Court. To quote Kofi Annan, the Secretary-General of the United Nations, on the subject,
The Bill before us today will put into practice the Government's commitment to that principle. It will pave the way for us to implement our obligations under the Rome Statute of the International Criminal Court and to ratify it. Your Lordships will be aware of the background. The International Criminal Court was debated in your Lordships' House on 9th June 1998 at the time of the diplomatic negotiations at Rome which led to the adoption of the statute, and on 20th July of that year after the statute was adopted. During those debates the International Criminal Court received eloquent support from all sides of this House. The creation of an international criminal court is a tremendous step for international justice and the rule of law. The court will bring to account individuals responsible for genocide, for war crimes and for crimes against humanity. The idea of creating a permanent international criminal court is not new. The ICC is the culmination of the will of the international community dating back 50 years. The process began at Nuremberg. The international community resolved that the appalling acts of the Second World War should not go unpunished; that the fact of conflict must not negate the rule of law. The creation of the Nuremberg tribunal was the first, crucial, step along the road of international accountability for conduct against international humanitarian law. This court will be a massive step forward along the same road. I should like to pay tribute to the contribution of distinguished Members of this House to the remarkable achievements of Nuremberg. The principles identified then are the basis for the work we are doing now—that individuals, not states, commit crimes, and individuals should be brought to account. But two world wars did not teach us our lesson. Crimes against humanity continued. Even in the past decade horrific atrocities were committed in Rwanda, in former Yugoslavia and in Sierra Leone, to name three examples. It is an inescapable fact that the perpetrators of atrocities in the last century were largely left unpunished. The new century must not follow suit. When the genocide in Rwanda and the ethnic cleansing in Yugoslavia again flagged up the need for justice at an international level, the United Nations responded by creating two ad hoc international criminal tribunals. The United Kingdom has given its full support to the tribunals, as we intend to do to the court. The ad hoc tribunal only served to illustrate the need for a permanent court. A permanent court would be in existence before a conflict broke out, and so would already have the skills, the personnel and the structures to enable it to respond quickly. That must be a better model than a tribunal which must be created after a conflict, sometimes years later, and when there might be allegations of victor's justice. Through the 1990s the international community worked together to prepare for such a court. The process was completed in 1998 with the Rome Diplomatic Conference when a statute of the international criminal court was adopted. The negotiations were difficult and many predicted failure. But the outcome was a triumph. In an unprecedented vote for international justice, 120 countries voted in favour. I am pleased to be able to tell your Lordships that, by 31st December 2000, the number of states that had signed the statute had exceeded the number that had voted for it in 1998: 139 states have signed. We have undertaken several campaigns of lobbying around the world to encourage others to sign too, most recently in December. We are delighted that the overwhelming majority of the international community, countries from all continents and of all sizes, have given their assent to the court, joining their voices to the cry for justice. We are delighted that the United States, despite the voices of reservation there, has also signed the treaty. President Clinton, making a statement on the day that the treaty was signed, described signature as a reaffirmation of the US's strong support for international accountability for genocide, war crimes and crimes against humanity. We welcome that commitment. We hope that in time the United States will ratify the statute. One of the reasons the Rome statute enjoys such widespread support is that it is based on internationally agreed principles of international law. It draws on existing international humanitarian law, including the jurisprudence of Nuremberg and Tokyo, the Geneva Conventions and the work of the ad hoc criminal tribunal of Yugoslavia and Rwanda. The Rome statute identifies and codifies some of the worst crimes known to humanity. The ICC will deal with genocide. It will deal with the crimes against humanity which are atrocities committed on a widespread or systematic scale. It will deal with war crimes committed in either international or internal armed conflict. The definitions and the extent of the crimes are set out in the Rome statute and in the Bill before the House. They are further elaborated in the elements of crimes document agreed by the ICC preparatory commission in June last year. War crimes include the intentional targeting of civilians, the use of human shields, serious sexual violence, and the forcible recruitment and use of child soldiers. The statute is equally strong on respecting the rights of the accused and the rights of victims and witnesses, including provision for reparations for victims. The ICC will have jurisdiction over not only those individuals who have directly carried out crimes, but those who ordered them to be committed. It will have the authority to indict a future Pol Pot, a future Milosevic or a future Saddam Hussein. I say "future" because the ICC's jurisdiction will begin at the point it is established, once 60 states have ratified. It will not have retrospective jurisdiction. But all states will be on notice that atrocities may be punished in the future. The court will be a powerful deterrent. The court will consist of a panel of 18 judges and an independent prosecutor, all elected by the states parties to the court. We intend to be among those states parties which will have the task of making the crucial first decisions. I hope that the Bill will receive favourable support both in this House and in another place to promote swift passage in order to give us a seat at the table as one of the court's founding members. I should like to make three points about the way in which the court will work. First, the purpose of the court is not to take cases away from our own courts. The international criminal court is complementary to national systems. This means that it cannot investigate or try a case unless a state is unable or unwilling to launch an investigation itself. The most common situation in which the court will act is when the rule of law in a particular country has broken down and a domestic prosecution is not possible; or when a dictatorial regime has refused to punish its own abuses. To quote again the United Nations Secretary-General:"People all over the world want to know that humanity can strike back—that whatever and whenever genocide, war crimes or other such violations are committed, there is a court before which the criminal can be held to account; a court that puts an end t o the global culture of impunity".
To allow our courts to take advantage of this so-called principle of complementarity, we are introducing into our law all of the crimes which the court itself will be able to try. If there should ever be any allegation that a British citizen or member of the British Armed Forces has committed one of these crimes we shall be able to launch our own investigation. Any such accusations will be tried in British courts. Secondly, how will a case get to the court? It will happen in one of three ways—an allegation could be referred to the court by a state, or by the UN, or the prosecutor could consider information sent directly to the court. In each case, the prosecutor would notify all states parties that an investigation is being considered. At that point any state with jurisdiction may declare that it will investigate. If so, the ICC investigation may not proceed unless a pre-trial chamber of judges authorises it, if they conclude that the relevant state is not itself able or willing to investigate. Thirdly, how will the court's provisions be enforced? One-hundred and thirty-nine states have signed up to express their backing for the court; 27 have ratified. The number of ratifications is going up all the time. These are the states which will give, indeed will be obliged to give, practical assistance to the ICC in implementing its mandate—from arresting suspects to enforcing reparation for victims. The court will also be able to call on the assistance of the United Nations when the UN has referred a case to the court. This is a powerful international coalition of support. They will make the first steps of the court a reality. We hope that in time the whole international community will join them. I now turn to the provisions of the Bill itself. It is a complex and technical Bill which has required careful preparation. The Bill extends to England, Wales and Northern Ireland. Since much of the subject matter falls within the devolution provisions of the Scotland Act, the Scottish Parliament will be considering the ICC Bill in parallel. But certain provisions of our Bill also apply to devolved matters. The consent of the Scottish Parliament to these provisions is being sought by the Scottish Executive Perhaps I may now turn to the details of the Bill, while leaving aside the introductory provisions of Part I. The second part of the Bill provides for assistance to he given in the arrest and detention of suspects indicted by the ICC and for their transfer to its seat at the Hague. This will be by an expedited process based on those provisions already in place for the International Criminal Tribunals for Yugoslavia and Rwanda. The Bill covers each eventuality so that wanted criminals landing in the UK would find themselves quickly en route to the ICC at the Hague, while respecting their rights. The third part of the Bill enables us to give full assistance to the ICC in other respects; for example, assistance in investigations, including the seizure of evidence and interviewing suspects and witnesses. There is also provision for the investigation of the proceeds of ICC crimes, and the freezing and seizure of property and assets at the request of the court. These provisions draw on existing principles and procedures developed for providing mutual legal assistance to other states. Part IV of the Bill makes provision for prisoners convicted by the ICC to serve their sentences in British gaols. The details of arrangements providing for them to do so will be the subject of an agreement with the court which will be discussed at a later date. The Bill provides for a similar agreement to be reached with the International Criminal Tribunal for the former Yugoslavia. The Bill also sets out how we shall put into effect other orders of the court—sfor forfeiture of assets, restitution and compensation. The Bill creates new offences under domestic law. As I said earlier, the ICC is designed to step in only when national jurisdictions are unable or unwilling genuinely to do so. We intend to be both able and willing. The offences created in part V of the Bill, therefore, reflect the offences in the ICC statute itself, so that our courts will always be in a position to try these offences themselves. Domestic courts will have jurisdiction over ICC crimes if they are committed in England, Wales or Northern Ireland. They will also have extra-territorial jurisdiction over these offences if committed outside the United Kingdom by a UK national, or by anyone subject to the jurisdiction of the courts of the UK armed services. Your Lordships will be aware that we published a version of this Bill in August. I should like to express my gratitude for the learned and helpful comments received from a number of noble Lords in this House. A report on the consultation process has been placed in the Library of the House. The Bill before us has been amended in the light of the comments received. In view of the large number of comments on two particular points, I should like to mention those issues now. The first issue was the question of immunity for official capacity. Commentators were concerned that suspects indicted by the ICC might be immune from arrest in the UK if they enjoyed state or diplomatic immunity. In the Bill before us today, your Lordships will see that there is a clear provision that in the case of a representative of a state party indicted before the ICC no such immunity will apply. This also applies to representatives of non-state parties where the sending state has agreed to waive their immunity. By ratifying the statute, states are accepting that their representatives will not enjoy immunities. The second issue was separate from, but related to, our obligations under the ICC statute. Many respondents sought to have this legislation extend the jurisdiction of British courts not only to UK nationals but also to anyone suspected of an ICC crime committed anywhere in the world. We do not favour the taking of such wide jurisdiction, so-called "universal jurisdiction", in this case. This is an issue that we have considered with great care. The primary responsibility for the investigation of crimes committed outside the United Kingdom lies with the state where the crime occurred, or whose nationals were responsible. If that state is not able or willing to investigate, the ICC will be there to step in. The British criminal justice system is based on a territorial link to the United Kingdom and there are significant practical difficulties when our courts have to prosecute crimes that have taken place elsewhere in the world. Even in the furtherance of a cause as great as that of upholding the rule of international law we have to be practical and ensure that we can deliver what we undertake. It is our policy to assume universal jurisdiction only where an international agreement expressly requires it. The Rome statute does not. Rather than taking jurisdiction that will be difficult to enforce, we believe that those countries in which the offences took place should be encouraged to prosecute. However, we have made one change to the Bill which is relevant to that issue. Under UK extradition law, it is the normal rule that we are unable to send people to another country to stand trial or to serve a period of imprisonment unless we could try that person under similar circumstances in the United Kingdom. This is the so-called "dual criminality rule". But under this Bill we are going to disapply that rule in the case of ICC crimes. This means that even though a state that requests the extradition of an individual suspect takes a wider jurisdiction than we do ourselves, we shall now be able to extradite that person to stand trial in the usual way. So even in cases where suspects were not liable to prosecution in this country or before the ICC they would be liable to extradition. This will ensure that non-UK nationals who have committed crimes overseas will not be able to come to the United Kingdom thinking that they will be immune from the reach of the law. They will be vulnerable to prosecution before the ICC, and they will be vulnerable to extradition. My time is nearly up. I look forward to listening to a high-quality debate on the International Criminal Court Bill. The Bill before the House this afternoon will enable the United Kingdom to take its place at the heart of the development of the rule of law at the international level. The UK has been fully involved in the International Criminal Court since discussions began in New York in 1995, through the negotiation of the statute of the court at Rome in 1998, and into the ongoing technical discussions at preparatory commission meetings. We look forward to playing a full part in support of the court itself. The International Criminal Court statute will come into force once 60 states have ratified it. To date, 27 have done so. This legislation will pave the way for us to join them— to join the global commitment to end impunity for some of the worst crimes known to mankind and to send a message to those who think that massacre and mutilation are acceptable, even as tactics of conflict, that they will be stopped. They will be apprehended, and they will be brought to justice. They should not sleep peacefully in their beds, expecting a long retirement. They will be on notice that the world is watching, and that the world will act. Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)"the Court represents no threat to a State with an organized criminal justice system".
Lord Howell of Guildford
My Lords, I am sure that everyone in your Lordships' House will be extremely grateful to the noble Baroness for the way in which she set out the detail of this very important, but undeniably complex, Bill. At the outset, I should like to make clear that we on this side of the House strongly welcome all forms of enhanced international cooperation to bring to book the butchers and perpetrators of monstrous crimes against humanity who would otherwise go free. That must be a worthy aim. It is right that people in many countries have striven very hard over the years in good faith to achieve it. I should also like to make clear that we also agree with the principle of the Bill. I hope that there will be no doubt in that respect.As the noble Baroness said, and as my website confirmed from an early morning consultation, as of today 139 countries have signed the statute—or had signed by the deadline of 31st December, before which it was possible to sign without also committing to ratify. After that date, any signatures made require the signing country to ratify. As I say, it appears that 139 have signed and 27 have ratified the measure so far. A number of those who signed before 31st December entered reservations on the website with regard to the way in which they would like the statute to be further reformed. The United Kingdom Government do not appear to have reservations. We seem to accept the measure as it stands. However, a number of countries have expressed reservations. Some signatures are missing. Japan and China have not signed the measure and, surprise, surprise, neither has Serbia, although I suppose we live in hope. The United States of America signed on 31st December. When it did so, the outgoing President, Bill Clinton, made clear his motives in signing. He stated in the Financial Times that,
It was not, apparently, driven by the desire to ratify at this stage. He continued:"the decision to sign was driven in part by a desire to keep the US actively involved in negotiations over the court's powers".
That is an important statement because it indicates that, as far as the United States is concerned, the deal is not done, the matter is not settled firmly in concrete, and there is a great deal more to negotiate. We all understand and, indeed, admire the desire of the noble Baroness for a swift passage to enable ratification to proceed and the desire of the Foreign Secretary and the Government that this should be a project where Britain is in the front row as a founder member, as it were. However, concerns and worries are obviously entertained by dedicated, senior American personnel and others. We must be careful not to overlook them even though we desire a swift passage for such an obviously desirable set of goals and aims. As I am sure noble Lords will agree, despite all the consultation that has taken place, your Lordships' House and indeed this side of the House have a duty to make sure that these concerns and worries are fully examined during the passage of the Bill. Some of them are serious and fundamental and should worry all those who love justice and wish to see the rule of law deployed even where the most hideous crimes have been committed whose perpetrators are the most deserving of punishment. I begin by focusing in more detail on the American position and approach as I think that that provides guidance on where, if anywhere, we should seek to make further improvements or air worries on the Bill as currently drafted. The American negotiator, David Scheffer, is an extremely dedicated international lawyer who is widely admired and well known. David Scheffer is the State Department's first ambassador at large for war crimes issues. Over the years he has worked extremely hard in a positive way—which should not just be dismissed or criticised—to seek the signature of the United States to the measure, as has now occurred. No doubt he would also like to see it ratified. That involves taking, with the new President, the Congress of the United States which will clearly not be easy. In early December Mr Scheffer said of the measure:"With signature we will be in a position to influence the evolution of the court. Without signature we will not".
in other words, if the whole project were ratified—"If it were adopted—
Those are Mr Scheffer's views. I do not think that anyone questions his determination to make progress on the project. However, we should listen carefully to what he and his colleagues say. The basic difficulty for the United States is that it has a written constitution. Therefore it cannot sign away the rights of its citizens; its hands are tied. We want to make sure that even though our hands are not tied, we do not sign away rights too readily. The issues that worry the Americans are: the basic right of free citizens of a free republic to open trial; the right to examine witnesses on equal terms; the right to have trial by jury; the right to no unlawful detention, rights of appeal and so on. It is clear that, even if others are satisfied that these rights are not being discarded, there are many in the United States who are not so satisfied, particularly, as I have already said, in the Congress of the United States. We have no written constitution and therefore in a sense that problem does not arise. However, we have our ancient liberties and we have our new semi-written constitution; namely, the European Convention on Human Rights which is now within our law and is, indeed, all written. Article 6 is specifically concerned with the right to a free trial and all the necessary accoutrements to make that a truly solid right and for free and fair trials to take place. We need to ensure that we do not run into the kind of difficulties that, apparently, the United States legal profession envisages. On the front of the Bill the noble Baroness is recorded as having satisfied herself that its provisions are compatible with the convention I have just mentioned. On rereading the articles and an excellent Home Office memorandum and explanation of what these extensive articles mean and what is implied by them, I am not yet 100 per cent satisfied. The noble Baroness may have satisfied herself and clearly her officials feel that she has the right to be satisfied, but she has not yet satisfied us. We shall want to be told more, both in this debate and at later stages, to enable us to be sure that the trials which take place—trying to put aside the fact that they may involve monstrous people whom we think should never have walked the face of the earth—are compatible with our ancient rights and liberties and anything that is now codified in writing in the European Convention on Human Rights. That is the first American worry which I believe should also be our worry to some extent. We should not be too dismissive of that. The second US concern is one to which the noble Baroness rightly referred; namely, ensuring that servants of the state are protected. That matter arose at the consultation stage. I suggest that we need to take great care here and not dismiss the American worries as trivial or insignificant. Once the law has been passed and the statute has been ratified by the signatories, to put it in blunt layman's language, the International Criminal Court must be obeyed. Of course, its work complements that of national courts. However, if a state is unaKte or unwilling to bring charges against an individual, the will of the International Criminal Court will prevail as regards all state parties to the statute. A state may have good reasons—perhaps it should not have—for being reluctant or unwilling to bring charges. However, once a provisional warrant is issued or, in some cases, even before a warrant is received, the domestic courts are powerless. They are on tramlines and they are obliged to proceed along strictly laid down rails. Article 59.4 specifically denies power to domestic courts to ask whether a warrant was properly issued or whether there is sufficient evidence to justify a trial. Those issues are denied to the domestic courts. The only protection seems to be the right of review—I am not sure whether the noble Baroness mentioned it—which is allowed. Other than that, there is no protection against the overriding will of the International Criminal Court. In most cases people would welcome that and say, "Well done, we need this strong will to get hold of these horrible people". But we need to ensure that the power is not used in a more indiscriminate or arbitrary way. The fear of the United States is that military commanders, soldiers, naval personnel, or pilots who have bombed civilian targets, will be charged. Although the Bill is not retrospective, we remember from the ghastly Second World War pilots who were forever strafing women, children, refugees and defenceless personnel or even people who had surrendered. Under Clause 65, politicians are protected under the standing conventions. However, Clause 72 is very wide. It states that people can be charged even if the alleged offences were not offences at the time. This is a very difficult area; one might well find a state unwilling to pursue matters. A great deal will depend on who initiates the charges and why. The noble Baroness reminded us that these initiations can come from the UN Security Council. It seems a little unlikely given the present composition of the council, but that could change. Alternatively, they could come from a state party to the statute, the court prosecutor or as a result of some information placed in the prosecutor's office. It is perfectly true that there is a pre-trial chamber of judges—I should like to be reassured that they are not the same judges who will try the case later—so there is a filter. Nevertheless, these are the ways in which the names will come up and the targets chosen. Can we ensure that they will not be picked on the basis of countries settling old international scores? There are plenty of international scores to be settled and plenty of people ready to try to settle them. Can we be confident that the Bill's provisions will not be directed at criminals who happen to be accessible at the time? That is the other difficulty. Is it possible that the only people caught up internationally in this formidable and substantial new machinery will be criminals at large in small states which are without armies and suffering legal and social disintegration and where the international community in the form of US or NATO troops, or UN forces, can move in at will and make an arrest? How many such countries are there? One has to remember that while some people were picked up in Bosnia, a country where NATO is in effect in control, there has been reluctance to pick up many others. So what would the chances be in countries where it is not in control? What will the Bill do for the atrocities committed in Chechnya where innocent civilians have been mowed down in the past year, or in Tibet where there have been massacres? What about the people who gave us the horrors of Tiananman Square; or the pilots who strafed civilians in World War II; or almost character monsters like Idi Amin who is still apparently at large? What about the Iranian child killers who do not hesitate to string up young children for various reasons; or the IRA terrorists who blow off the legs of little children? I had to visit them when I was a Minister in Northern Ireland. Terrorists are excluded from the Bill, so those kinds of monsters will not come within its reach. What about Mr Kim II Sung and his delights in North Korea? Has Mr Putin something to explain from his KGB past, or the actions of his generals in Chechnya? None of the people involved in that list of atrocities will be touched. Perhaps I may quote from an interesting article by my noble friend Lord Hurd, the former Foreign Secretary. In the Financial Times recently he concluded—it is a conclusion upon which we may ponder—that,"I think it would have an injurious effect on US national interests and it would set back the cause of international justice unnecessarily … Through five years of intensive negotiation on this treaty and on the supplemental documents the United States has laboured constantly to achieve two major objectives. One: establish a truly legitimate engine for international justice on a permanent basis, and two: ensure that there are appropriate safeguards in the treaty and the treaty regime so that American personnel are not subject to any unwarranted investigation or prosecution by the court".
That is not an encouraging prospectus for this operation despite our high hopes. To "only the weak", perhaps one may add only those whom the state has good reason to protect. Through its own well-ordered machinery it must deliver the goods and obey the ICC. That could include intelligence officers—people deemed to have served the state well. The ICC selection process is bound to be selective and arbitrary. I put it in deliberately crude terms. I withdraw from those if readily challenged. In future it could get James Bond but not Pol Pot. We cannot just dismiss these matters. We should have double concern that this enormous system will be accountable. We are setting up many international bodies and independent institutions outside the conventional channels of democratic control. The great question of our age, I suggest, is how we make those bodies accountable and link them to the democratic process. That applies as much to the ICC as to other institutions. We shall wish to discuss many other items. My noble friend Lord Kingsland will bring his expertise to bear towards the end of the debate. However, it sounds nonsensical to introduce into the UK statutes genocide as a crime when we already have powers under the War Crimes Act and the Genocide Act. It may be necessary but it sounds absurd. The enforcement of sentences leaves us uneasy. Where will these prisoners serve their sentences? Some will be in UK gaols. However, they will not be held there at Her Majesty's pleasure, like every other prisoner, but at the pleasure of the ICC with no question of early release by the domestic authorities. The system will not start tomorrow morning; it will happen a year or two ahead. Some big criminals will not be caught by this system and will wander around for a good while to come. What will the system cost? In the Explanatory Notes there is a shot at a figure of £5.7 million in the first year. After that the picture is vague. It is suggested that the costs are unquantifiable. However, such costs can become very high indeed. There is no provision in the Bill about who will scrutinise and monitor them. We all have experience of what happens to pay rates, expenses and facilities in these large institutions. They have a habit of soaring into a world far removed from the normal remuneration of dedicated public servants. Finally, I return to the key questions on the Bill with its important goals. First, will it catch the big fish or only the minnows? Is it a serious force that will carry forward our aims? Or is it, as many feel, a cosmetic exercise? Secondly, do the democracies, and the citizens or subjects within them, have anything to fear from the Bill? The noble Baroness says that they do not. My question is "Are you so sure?" It seems to me that there is something to fear. Expert American legal minds see it. The UK is in a rush to sign, as the noble Baroness explained. We shall have to look closely at some of the American concerns to ensure that we do not allow liberties to be taken from our citizens of a kind we would later regret. My view is that the project will not get under way until the US is convinced and on board in this vast international undertaking. I understand the hurry to see justice done, but there is a wide gap between rhetoric and reality. A sensible government—I am not saying that we do not have one—should proceed slowly, carefully and thoroughly. I have an uneasy feeling that that is not happening."only the weak or the defeated are likely to find themselves in front of the new court".
Lord Lester of Herne Hill
My Lords, we greatly welcome the Government's decision to introduce the Bill, which will enable the UK to ratify the ICC Statute and to be among the court's founding members. The ICC Statute is the product of half a century's search for a balance between diverse political interests and an acceptable synthesis of the world's legal traditions. The statute is a great achievement—although, having listened to the noble Lord, Lord Howell of Guildford, giving curiously tepid and unenthusiastic support, I wonder whether that is accepted on the Conservative Front Bench. It is a great achievement and a fitting culmination of that historic process. The Government and their advisers are to be congratulated on having played an influential and constructive role in making the statute and on introducing the Bill. The Minister is to be congratulated on her characteristically powerful speech.Unfortunately, I shall be the only speaker from these Benches, because my noble friend Lady Williams of Crosby, who would have spoken at the end, cannot be here throughout the debate. That is a misfortune, as I shall speak as a lawyer and she would have spoken as a human being. Before I turn to the statute and the Bill, I draw attention yet again to the pressing need for proper machinery for parliamentary scrutiny of important international treaties that the Government intend to ratify on behalf of the UK. Some years ago, I introduced a Private Member's Bill to improve scrutiny and create a treaty scrutiny committee. Under the previous Conservative Government, I managed only to obtain a new system for publishing explanatory memorandums about treaties under the Ponsonby rule. The Bill well illustrates the pressing need for such a committee, similar to the scrutiny machinery for EU law and institutions, to explain the content and effect of such international treaties for the benefit of parliamentarians and the public. It is not enough for there to be scrutiny of legislation designed to implement parts of a treaty. As the Minister has said, the Bill is inevitably complex and technical in nature. One cannot understand its implications without a firm grasp of the principles contained in the treaty, but only gobbets of the treaty are schedules to the Bill. The concise explanatory memorandum published with the treaty last year is accurate, but it is far too brief to enable Parliament or the public to understand the content of the treaty or its implications. Worse than that, as the noble Baroness may not know, the memorandum is FCO samizdat—that is, it is not available to the House for debate, because the Printed Paper Office has no copies of it. The explanatory memorandum is not there to serve its limited purpose. Thorough scrutiny of the treaty would he possible only if it was referred to an expert committee to advise the House. It is unacceptable in a modern democracy that there is still no proper parliamentary accountability or scrutiny when the Government use their prerogative powers to enter into a binding international convention of such importance. As the noble Lord, Lord Norton of Louth, rightly observed in his report in July last year:
I hope that we shall not have to wait much longer for a treaty scrutiny committee to be established and that the Government will support the proposal at last. After all, it emanates from Ramsay MacDonald's era and has still not been implemented. The agreement achieved at the Rome conference creates a permanent international criminal justice system derived from the distinctive legal traditions of the world's major criminal law systems. This system consists of seven general principles of criminal law, together with essential legal provisions, safeguards and procedural rules. As a student of Harvard Law School many years ago, I think that I am entitled to say—pace the noble Lord, Lord Howell of Guildford—that those procedural safeguards are as effective as anything to be found in American constitutional law. The provisions in the treaty are designed to secure an effective and efficient justice system while protecting individuals from frivolous, vexatious or politically motivated investigations. I have heard nothing from the noble Lord, Lord Howell, to suggest that they are other than well designed. The prosecutor is given independent and discretionary power, but there are adequate safeguards to ensure impartiality and to avoid abuse. The prosecutor's investigative powers are carefully balanced with the rights of the accused. Some may object to the ICC on the grounds of state sovereignty. Such an objection would be misplaced. The statute is intended to tackle crimes against the whole of humanity. As the great French jurist Teitgen observed 50 years ago about the supranational character of the European Convention on Human Rights:"Parliamentary scrutiny should be seen by Government as a benefit, not a threat. A healthy and vibrant Government is one that is able to justify its measures and welcomes critical scrutiny".
The permanent international criminal system will not displace the important role of national courts. Prosecution and enforcement of law are carefully guarded sovereign prerogatives of the state. National courts must act in partnership with the ICC. That is why the key to the statute and one of the real achievements at Rome is the principle of complementarity. Complementarity means that the international court will complement rather than supersede national jurisdictions. States will still have the primary duty to prosecute those guilty of international crimes, but the ICC will act when national courts are unable or unwilling to perform their tasks genuinely or effectively. Detailed definitions of when the court will have jurisdiction avoid the possibility of arbitrary or politically motivated prosecutions. The statute bears the hallmarks of political compromise. Criticism has been directed at the provisions of the statute that permit the Security Council to delay investigations and at the provision in Article 124 that enables a state party temporarily to suspend its acceptance of the ICC's jurisdiction over war crimes. The statute does not provide for the principle of universal jurisdiction by specifying that the territorial state or the state of which the alleged perpetrator is a national must be a party to the statute or must accept the jurisdiction of the court ad hoc before the court may hear a case. Those weaknesses reflect current political forces and realities in the international community. The reluctance of powerful democratic states such as the United States even to sign the treaty until the last moment—indeed, I understand that the Americans lobbied behind the scenes against it for a long time before and during the Rome negotiations—shows the importance of achieving a sensible political compromise. The key achievement is that a compromise that creates a universal, independent and impartial court to deal with the most heinous of crimes has been settled upon. By signing and ratifying the treaty, the international community no longer accepts that impunity for such crimes can exist; rather, it recognises that perpetrators must be held individually to account for their wrongdoing. There is a political and moral responsibility to support the ICC and to implement the statute as soon as possible. The Bill fulfils that responsibility. It is careful to reconcile the principles of English law with the relevant principles of international law. It enables the UK to co-operate fully with the court. However, for the Bill to be fully effective, it must also allow us to take proper advantage of the complementarity principles by ensuring that the UK can exercise jurisdiction effectively. We welcome the changes to the draft Bill and, most particularly, the addition of a range of ancillary offences, procedural improvements, the setting aside of the double criminality provision and those provisions intended to remove diplomatic and state immunity for ICC crimes. As the chief US prosecutor at Nuremberg, Justice Robert Jackson, observed:"I think we can now unanimously confront 'reasons of State' with the only sovereignty worth dying for, worthy in all circumstances of being defended, respected and safeguarded—the sovereignty of justice and of law".
Close to home, as the noble and learned Lord, Lord Browne-Wilkinson, said in the Pinochet judgment:"The common sense of mankind demands that the law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched".
However, we are concerned about some aspects of the Bill which we raised during the consultation process. I am grateful to Professor Guy Goodwin-Gill for his expert advice on some of those points. I very much hope that in his reply to the debate the noble and learned Lord the Attorney-General will be able to respond to our concerns. It is a matter of concern—this has been touched on by the Minister—that the Bill does not fully implement the complementarity principle. The domestic offences created by the Bill will apply only to UK territory, UK nationals or those subject to UK service jurisdiction. It is a welcome development that the Bill extends jurisdiction to the actions of nationals overseas. But there can be little justification for refusing UK courts full and universal jurisdiction over ICC crimes committed by non-nationals. The preamble to the statute refers to the duty of every state to exercise its jurisdiction over those responsible for international crimes. The complementarity principle means that states must recognise that duty if the regime is to be comprehensive and coherent. The jurisdictional weakness of the ICC underscores the need for full and effective justice at a national level. Even after 60 states have ratified and the ICC is established, it could be at least another half-century before the majority of states are subject to the automatic jurisdiction of the ICC. That is particularly troubling when one considers that the state of nationality of the accused is often the same state on whose territory the crimes were being committed. In practice, that would mean asking Iraq to give the court jurisdiction to try Saddam Hussein or Chile for permission to try Pinochet, and so on. In effect, there may be significant gaps in the ability of the court to consider cases—gaps which should be filled by national courts but which are left partially open by the Bill. Clause 56, which makes some reservation for universal jurisdiction recognised in existing enactments, seems insufficient to compensate for a clear statement of universal jurisdiction in all cases where it is afforded by international law. Genocide, certain grave breaches of the Geneva conventions and torture, as defined by the 1984 convention against torture, are already accepted as international crimes of universal jurisdiction. The UK courts already have jurisdiction over other crimes committed outside the UK by non-nationals, including torture and hijacking. Under existing legislation, those who commit torture or grave breaches of the Geneva conventions outside the UK and are found in UK territory may be prosecuted by the UK courts. However, under the Bill as it stands, if a UK citizen and an Iraqi citizen were to be involved in a crime against humanity abroad and fled to the UK, the UK national could be prosecuted under the Bill before the domestic courts but the Iraqi citizen could not be prosecuted. That may mean that if the ICC has no jurisdictional basis to try the non-UK national, conceivably his crimes could go unpunished. As a practical matter, our courts will only rarely face such cases, but they should be ready to shoulder that responsibility should a suspected perpetrator of genocide or war crimes come within our territorial jurisdiction in circumstances where the ICC is unable to take over. The Bill stops short of providing a comprehensive legal base for the exercise of jurisdiction in the UK but it fails to take full account of the principle of universal jurisdiction. We very much hope that that is a defect which, although considered carefully by the Government, may yet be removed in Committee. Clause 23 is drafted in order to allow state and diplomatic immunity to apply to ICC crimes tried before our national courts. Understandably, the Government may wish to give due regard to future relations between the UK and states which are not party to the statute. However, post-Pinochet it is questionable whether immunity should attach to anyone suspected of these most heinous of international crimes. Again, I hope that in his reply the Attorney-General will be able to touch on that point. Article 75 of the Rome statute provides a framework within which the court may award reparations to or in respect of victims against convicted defendants. It contemplates that the judges will establish principles relating to reparations, including restitution, compensation and rehabilitation, and will apply those principles in determining the extent of damage, loss or injury to victims. However, the Bill does not consider compensation either for victims of crime or for those wrongfully arrested. Clause 49 leaves the matter of reparation to victims to be dealt with by future regulations. We very much hope that the Attorney-General will be able to explain what is envisaged and, in particular, how such compensation or reparation will be catered for under the English legal system. As I said, the safeguards for the accused are as robust as any provided for under US, German, South African, Canadian or British constitutional law. But in one respect the domestic safeguards in the Bill for the accused may be too narrow. This point is a little technical and I apologise for that, but it may be quite an important point. As I made clear during the consultation process, it seems to me unnecessarily restrictive to confine the remedy for the right to review of a delivery order to an application for habeas corpus rather than the broader application for judicial review on the usual principles of administrative law. Again, hope that the Attorney-General will be able to clarify why the remedy has been confined to habeas corpus. Clause 12(4) provides that the court which hears the application for review must consider the same issues as the court that made the delivery order, including those provided for in Clause 5(6)(b) requiring a determination on whether a person's rights have or have not been respected. That seems to go further than the issues that one is entitled to raise by way of application for habeas corpus, which concern only whether a person has been lawfully or unlawfully arrested and detained. The success of the ICC depends on its ability to make a difference in the real world. That success will depend not only on the degree of support among states but on the initial actions of the inaugural assembly of states. The first 60 states will convene not only to adopt the rules of evidence and procedure and the elements of crimes negotiated at the preparatory commissions but, crucially, will also discuss the details of the financial regulation of the court. A significant role of the first ratifying states must be to convince other states of the values of the statute and the importance of the court; for example, neither China nor India—states which represent a great proportion of the world's population—feels able to sign and ratify the statute. Even though the United States has now signed, it is likely to take a very long time before it ratifies the statute. One may reflect that the ICC would have been of great value in resolving recent international crises and concerns. For example, had the provisions been operational during Pinochet's regime, perhaps Chile's ordeal would never have assumed such tragic proportions, and the Law Lords would not have had to go through the great pains that they did in that regard. Those intending to engage in heinous human rights abuses would have known that sooner or later they would have been summoned before the ICC to account for their acts. Cases such as Pinochet, Ocalan and even Lockerbie could perhaps have been usefully or more expeditiously dealt with by the ICC rather than by national courts. All that is speculation. However, one can say with reasonable certainty that there is now recognition across a large part of the world, north and south, of the fact that humanity requires a universal, independent and impartial court to deal with the worst of crimes and that there is a political and moral responsibility to implement the provisions as soon as possible. Many of your Lordships have played a key role in lobbying for the proposal. My friend, the noble and learned Lord, Lord Archer of Sandwell, whom I see in the Chamber, has for years been campaigning for such a court. We will have the pleasure of hearing him later. The Bill will effectively discharge that great responsibility, and is to be welcomed not in a lukewarm or tepid manner but wholly enthusiastically."How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?"