Clause 1 - The ICC and the ICC Statute
International Criminal Court Bill [Lords]
10:30 am
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I beg to move amendment No. 4, in page 1, line 8, after second `Statute', insert
`, as corrected by the following proces-verbaux of rectification issued by the Secretary General of the United Nations as depositary of the ICC Statute after communicating the proposed corrections of all interested States—
(a) the proces-verbaux of 10th November 1998 and 12th July 1999 correcting the texts of that Statute in Arabic, Chinese, English, French and Spanish;
(b) the proces-verbaux of 30th November 1999 and 8th May 2000 correcting the texts of that Statute in French and Spanish;
(c) the proces-verbaux of 17th January 2001 correcting the texts of that Statute in French, Russian and Spanish, and;
(d) the proces-verbaux of 17th January 2001 correcting the text of that Statute in French, Russian and Spanish, and
(e) further such proces-verbaux as may have been or may be issued by the Secretary General of the United Nations, except where Her Majesty's Government upon resolution of either House of Parliament conveys to the Secretary General that the United Kingdom dissents from one or more specific corrections contained in one or more specific such further proces-verbaux.'.
I thank you, Mr. Cook, for your ruling. It was important to clarify some of the issues surrounding our scrutiny of the Bill.
I move this probing amendment to elicit some guidelines and words of wisdom from the Minister. As there is no time limit to our debates on the clause, I hope that he will have the chance to respond. The amendment is slightly imperfect; it has lost something in translation. Paragraph (a) should include ``Russian''; and paragraph (d) should not have the date ``17th January 2001'' but should state:
``the proces-verbaux of 19th July 2000 correcting the text of that Statute in Russian''.
I apologise for that imperfection, but as it is a probing amendment I hope that it will not affect the Minister's response.
The amendment will allow us to discover what procedures are available to the Government to incorporate future corrections to the texts in legislation. I shall stand corrected on the details, but I believe that since its adoption on 17 July 1998, corrections have been made to the Rome statute on six occasions. That is hardly surprising, as the document is exceedingly complex. That complexity, which is the culmination of many years' work, is, per se, an invitation for mistakes to happen. A document of such length, that is subject to such vast international negotiation, will doubtless include mistakes. It is being pored over by international lawyers, Governments and non-governmental organisations, but errors are still being found. At the start of our scrutiny of the Bill, it is natural to try to elicit from the Minister some idea of the processes available to the Government when corrections need to be made.
I have been surprised by the number of changes to the text, notwithstanding what I have said. The proces-verbaux of 10 November 1998 contained no fewer than 49 changes, which is rather a large number. Although many of them are small—a comma, a word or a capital letter here and there—others go to the heart of the treaty and require some explanation, or at least need the Committee to understand what scrutiny has been given to them.
In some cases, the process-verbaux add something. I am looking specifically at article 124, which is an especially sensitive part of the treaty, as it is the opt-out article. When France was considering how it would approach the treaty, it sought a different solution to its problems, as it perceived things, and secured the inclusion of an opt-out—article 124, known in the statute as the transitional provision. France used article 124 to make a declaration that when it becomes party to the statute it will not accept the jurisdiction of the court with respect to the crimes listed in article 8 when they are allegedly committed by its nationals or on its territory. That provision will last for seven years, unless France withdraws the declaration sooner.
The provisions of article 124 are to be reviewed at the first review conference, which will be about seven years after the statute comes into force. France has made a declaration under article 124 which, together with its other interpretive declarations, is its way of seeking protection from those acting in bad faith. However, if we examine the proces-verbaux, we find that there is an alteration to that sensitive provision. The original text of article 124 read:
``Notwithstanding article 12, paragraph 1, a State on becoming party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court''.
Now, following the correction in the proces of 10 November 1998, it reads:
``Notwithstanding article 12, paragraphs 1 and 2'',
and so on. So the alteration goes back to article 12. Where the original text included only the precondition to the exercise of jurisdiction that was found in paragraph 1 of article 12, namely that
``A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5'',
the correction has added sub-paragraph 2:
``In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3''.
Sub-paragraphs (a) and (b) follow. These corrections may not be merely to a comma, full stop or capital letter. They can substantially alter part of the treaty, or so it would appear. I hope that the Minister will address that point.
The problems do not stop there, as at some stage additions have been made of things that must have been felt to have been omitted. There can also be removals from the statute, as the proces-verbaux of 12 July 1999 show. They made 23 changes to the text. Many of them were minor, such as removals of punctuation. However, one change in the list refers to paragraph 5 of article 99. The original text states:
``Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national defence or security shall also apply to the execution of requests for assistance under this article.''
But ``defence'' is removed in a correction.
The word was obviously significant, so we must consider the implications of its removal. It is not the removal of a comma or a full stop, but a change in the meaning of that part of the article. The Minister must tell us what the implications might be for the interpretation of the statute following the word's removal, because ``national security'' is not the same as ``national defence or security''. What is his interpretation of the original wording? Why was ``defence'' removed? Why did we accept its removal? If we objected, what process was used to do so? The subject returns me to the fundamental reason why we tabled the amendment as a probing amendment. We could have put it to other uses, but we want a response on those substantive points.
We have been told that the statute cannot be altered—that it is almost set in concrete. Notwithstanding that, there is a process whereby changes that are not purely cosmetic are made to the statute. What notification does the Minister receive of them? What notification do the states that have ratified the treaty already receive? Who initiates the corrections? What procedures are used if there are any objections to the corrections and amendments? Is the Minister satisfied that the legislation encompasses any corrections made in the proces-verbaux detailed in the amendment, or any future ones that might be incorporated in the treaty?
Will the Minister also tell us what discussions he or his Department have had with Hans Corell, the Under-Secretary-General of and legal counsel to the United Nations who signed the proces? Were those discussions before, during or after the event? Can the UN issue corrections that we have to accept willy-nilly, come what may, as a fait accompli?
It has been continually inferred, even if it has not been spelt out, that the statute cannot be amended. Therefore, I need assurances from the Minister about the parameters within which we operate. The helpful brief prepared to the usual high standard by the Library gives the impression that the Government are, if not rushing, trying to use the passage of the Bill in an unduly political way, enabling them to say, ``We have done this good thing.'' We should have been happier if they had said: ``This is a good thing that we can all do together, but let us consider things properly.''
The Library brief mentions that the Government have pointed out
``that the Statute is not currently open to amendment.''
It adds:
``Some amendments to the Bill''—
in another place—
``called for ratification to be made conditional upon changes to the Statute. These were resisted on the grounds that to accept them would place the Government in an impossible situation. However, it remains open to the Government to ratify and then to introduce amendments at the Review Conference which will take place seven years after entry into force, or, of course, to delay ratification until after the Review Conference.''
Did the Minister consider delaying ratification until after the conference? I know that he has said that he wants to be in the first 60, but the delay need not prevent that. I have only his word as to the rapidity with which other countries are ratifying the treaty; there seems to be no evidence that they are tearing ahead to do so. I do not know the latest number, because the relevant website was not available this morning, but I think that about 29 or 30 countries have done so.
In the past, the United Kingdom has not acted so precipitately on similar issues. The genocide convention was not ratified until more than 20 years after its adoption. The Geneva conventions were ratified eight years after their adoption, and there was a gap of 21 years between signing and ratifying the additional protocols to the Geneva conventions. I am sure that there were extremely good reasons in each case. More haste, less speed is the maxim, is it not? This is our one opportunity to build the institution in question, and we need to get it right. If we want to get it right, I see no reason to rush matters unduly. The Minister should satisfy us that all the i's are dotted and all the t's crossed.
The Government have said that to ensure that British courts can always step in before the ICC they have decided to incorporate all the ICC crimes in domestic law in identical language to that used in the Rome statute. That information is again taken from the Library brief. However, what would happen if, through the correction process mentioned in the amendment, the language in that statute were changed, while our statute was set in concrete? I do not know whether any of my hon. Friends want to speak to the amendment, but I have posed many questions to the Minister and I look forward to his response, to set my mind at rest on the question whether the administrative process behind possible continuing change to the statute is in hand.