Mr Frank Cook (Stockton North, Labour)

I remind the Committee that with this we are taking amendment No. 37, in page 1, line 10, at end insert—

`other than crimes arising out of amendments to Articles 5, 6, 7 and 8 of the ICC Statute'.

Mr Crispin Blunt (Reigate, Conservative)

I am still recovering from the allegation made by the hon. Member for Harrow, East (Mr. McNulty) this morning that I was representing the Liberal Democrats. I am unsure whether that was meant to be a compliment or otherwise—

Mr Tony McNulty (Assistant Whip (funded by HM Treasury); Harrow East, Labour)

An insult.

Mr Crispin Blunt (Reigate, Conservative)

That remark should be reported to the hon. Gentleman's party leadership.

I would like to discuss the detail of the amendments, having focused on the wider reasons for them. I shall try to anticipate the arguments of the Solicitor-General, who I understand is replying to the debate, as to why the amendments are not relevant. I suspect that he will draw my attention to clause 50 and schedule 8, but I have examined those parts of the Bill, and I do not understand how they can be consistent with the phrase ``other than . . . aggression'' in clause 1. Amendment No. 36 is intended to remove that phrase, and amendment No. 37 seeks to insert a reference to articles 5, 6, 7 and 8 of the ICC statute. If the hon. and learned Gentleman intends to rely on clause 50 and schedule 8, I can tell him that those provisions would cover acts of aggression as well. If they are reliable, it should not be necessary to include the phrase

``other than the crime of aggression''

in clause 1.

However, if the hon. and learned Gentleman is not certain whether one can rely on schedule 8, perhaps he is seeking to ensure that removal of the acts of aggression exception would require a change in the law by this House. The ``crime of aggression'' exception in clause 1 is not a reliable way of ensuring that. It would be much better for Parliament if amendments Nos. 36 and 37 were accepted and the position was absolutely clear. That would cover the entire position, so we would not have to rely on the language of clause 50 and schedule 8, which is at best slightly equivocal, particularly in terms of the future determination of the provisions by United Kingdom courts.

Clause 50 gives interpretative rather than prescriptive powers to the courts. For example, clause 50(2) states:

``In interpreting and applying the provisions of those articles the court shall take into account . . . any relevant Elements of Crimes adopted in accordance with article 9''.

Clause 50(5) states:

``Account may also be taken of other relevant international jurisprudence''

Perhaps a United Kingdom court would consider a change accepted by the Government under clause 50 and schedule 8 to be binding on the United Kingdom regardless of what had actually happened in Parliament.

To make my position explicit, I am asking the Government to accept amendments Nos. 36 and 37. They make it clear beyond peradventure that any changes have to be not only negotiated by the Government but approved by Parliament. I understand that the Bill is intended to ensure that that is the case, and I want the position to be clear, which is the reason for the amendment.

Mr Edward Garnier (Harborough, Conservative)

I shall speak briefly in support of the arguments put by my hon. Friend the Member for Reigate (Mr. Blunt). I trust that amendments to the Rome statute made under article 121, pursuant to review under article 123, will have to be ratified by any state party prepared to be bound by them. Amendment No. 36 would omit the phrase

``other than the crime of aggression''.

We have to read article 5 to discover what is meant by ``the crime of aggression''. Paragraph 1(d) of article 5 states that, in accordance with the Rome statute, the International Criminal Court has jurisdiction for the crime of aggression. Paragraph 2 states:

``The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.''

It would be interesting to hear from the Solicitor-General what the Government's current view on the crime of aggression is. At the review conference to be held seven years after the ICC comes into existence, the then Government's view may be different, but it would none the less be interesting to hear from the hon. and learned Gentleman how the present Government are likely to define it.

War is rarely, if ever, started or initiated by democracies. It is highly unlikely that the present Government or a successor Conservative Government would be an aggressor in the sense that I envisage that term being defined under article 5. It is the totalitarian regimes who will be guilty of the crime of aggression, and I doubt whether such regimes are likely to be susceptible to the jurisdiction of the ICC. Have any totalitarian regimes signed up to the Rome statute? If they had, would they ratify it? If not, is anything to be gained by including the crime of aggression in that statute?

The treaty that makes the Rome statute part of our domestic law is not susceptible to amendment. Treaties and treaty making in the United Kingdom is a matter of prerogative; it is not a matter for Parliament. We cannot amend treaties; we can amend only legislation—either existing legislation or Bills such as that before us. Our debate is slightly Ruritanian, because at the same time we are dealing with the statute of Rome, which we cannot amend, and the ICC Bill, which we can amend. What is the purpose of amending a Bill that cannot itself amend the treaty? Does the Solicitor-General have an answer to that? We are going through an interesting exercise. We go through the pretence of a parliamentary process, which is necessary for ratification, yet we cannot bite on the base treaty. We shall have to wait until more than 60 countries have ratified the Rome statute before we can get to grips with the definition of the crime of aggression.

In so far as we are able to discuss the matter intelligently, will the Solicitor-General let us know whether his definition of the crime of aggression applies not only to states—the wagers of war on a national basis—but, as I assume, to individual military or other political commanders of troops? Will a commander be held liable under the statute of Rome for an act of aggression in an existing war? I am not talking about the German invasion of Belgium, Czechoslovakia or Poland in 1939, but about, for example, an allied military or political leader in an existing war ordering his troops to take part in an act of aggression against the original aggressor or a third party that has given aid or comfort to the original aggressor. Under the Government's definition, would such a commander be liable under article 5 for the crime of aggression?

I hope that the Solicitor-General can answer on another issue. I assume that the crime of aggression, when it is defined at the first review conference seven years after the coming into existence of the ICC, will bite only on countries that have signed up to the review process. They may be members of the ICC assembly of states parties. Although they will be willing to accept the existence of the ICC and, to a limited extent, its jurisdiction over their own territory and citizens, they may not accept the majority view on the crime of aggression.

France and, I think, Israel and several other signatories to the statute have already entered reservations. That suggests that they may not want, as the Foreign Secretary does, to travel the whole journey and sign up to everything in the statute of Rome. If such countries are not prepared to sign up to everything, will they be bound by the majority's definition of the crime of aggression even if they are not part of that majority? Will their citizens, military or civilian, be accountable to the ICC for what the majority believes aggression to be? If so, to what extent will the purpose of the statute of Rome be undermined and destroyed, and its full effects inhibited, by minority countries taking a different view on aggression?

As I said at the outset, we are dealing with something that we cannot amend, so our exercise is slightly unreal. None the less, we must think seven years forward from the complete ratification, seven years from the ICC's coming into existence. My hon. Friend the Member for Reigate has initiated a valuable debate on the constitutional relationship between this Parliament, the assembly of states parties and the statute itself.

If, at the review conference seven years from the coming into existence of the ICC, other crime or the crime of aggression is defined, will such definitions be brought into English and Welsh jurisprudence and jurisdiction through some statutory instrument? Will they bite on our citizens and become part of our law only by Act of Parliament? That would be achieved by amending the statute that the Bill will no doubt have become by then. Will it be a matter for prerogative, so that the Government advising Her Majesty can simply say that the treaty is amended to reflect the majority definition of a crime of aggression, and that that bites upon us because we signed the original agreement in 1999?

The matter is of some constitutional importance because, as my hon. Friend said, it cannot be right that the criminal law can be amended without the permission of both Houses of Parliament, especially when we are exporting jurisdiction in this way to an extra-territorial court. I trust that the Solicitor-General will be able to reassure the Committee that when the crime of aggression comes to be defined at the first review conference, it will be defined in such a way that that definition will have to be part of a correcting piece of legislation, which this House will decide on, so that the citizens of England and Wales—Scotland now has its own arrangements—cannot be laid open to charges under the amended ICC statute without Parliament's having given its permission for that amended definition to come into English law.

The proposition can be simply stated, but the consequences of getting it wrong would be huge. We can learn a great deal from this about the Government's attitude towards Parliament, towards those citizens who elected them, and towards those who did not elect them. I look forward with considerable interest to hearing what the Solicitor-General has to say in answer to the arguments on those issues.

Amendment No. 37, on which my hon. Friend the Member for Reigate also spoke, deals with broadly similar issues. The guts of the ICC statute—that is to say, the crimes within the jurisdiction of the court: crimes of genocide, crimes against humanity, war crimes and the yet-to-be-defined crime of aggression—are to be found in articles 5, 6, 7 and 8. Article 6 defines genocide. These are not new definitions; they come from earlier treaties. Crimes against humanity are dealt with under article 7, and under article 8 there is a long list of what are described as war crimes.

The derivation of each of the definitions to be found in those articles is not exactly aged, but there is some precedent. In the debates in the other place, Lord Williams of Mostyn set out the derivation of those definitions. I do not complain about those for a moment. However, I want the Solicitor-General to reassure the Committee about any amendments to the base treaty—the statute—that touch upon our criminal law and affect the citizens of this country, be they military or civilian. I am particularly concerned about the military, as we have had both formal and informal representations from former and current members of the armed forces about the effect of this legislation on their ability—in the case of current, serving members—to wage legitimate war on behalf of the United Kingdom. We wish to be able to reassure them that the Bill that we are discussing, and the statutes that will be incorporated, in part, into our domestic law, will not inhibit or in any way damage their ability to carry out their lawful duties on behalf of the people of this country in time of war.

As the Minister said, these are complicated issues. I do not disagree with him. However, they are, I think, capable of easy explanation. I do not doubt that the Solicitor-General, with all his experience of banking law and similar aspects of the civil law, will be able to turn his finely tuned mind to this aspect of international criminal law, to the benefit not only of the Committee but of the nation, which eagerly awaits his response.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I have a couple of points to add to those made by my hon. and learned Friend. I also thank my hon. Friends the Members for Reigate and for Aldershot (Mr. Howarth) for tabling the amendments, which have provided us with a vehicle for the wider exploration of the parameters of the Bill.

The crime of aggression does not feature in the Rome statute because agreement could not be reached on it at the conference. The conference covered only the three basic categories of genocide, war crimes and crimes against humanity. I hope that the Solicitor-General will outline the fundamental points of difference between the main protagonists. That will be useful in informing the Committee. I understand that the crime of aggression was not adopted because the definition was thought to be too wide. Perhaps the Solicitor-General could confirm that and reveal his thinking.

I believe that it was thought that any troop movement that led to one state feeling intimidated by another could be seen as an act of aggression, with all the difficulties accompanying that definition. The situation currently developing between China and Taiwan is perhaps an example on which the Solicitor-General could draw. In addition to the recent events involving the US plane and the detention of US serving officers in China, other developments have been reported in the press. Not the least of those have been potential arms sales to the island of Taiwan by Washington and the deployment of missiles by China.

I am trying to use a real example to show how one state's action could be deemed a form of aggression. The commander of the US Pacific forces has said that China has about 300 missiles that can strike Taiwan, and appears to be adding 50 more a year. He has commented:

``There will be a point at which that missile build-up will threaten the sufficient defence of Taiwan which it is the policy of the United States to maintain.''

When or how, in the Solicitor-General's view, would that point be reached? That information would help us to understand the problems surrounding the definition of aggression, which must interest hon. Members of all parties. I can see the Solicitor-General nodding. I hope that I did not give too arduous an example; it is the type of example that we need to consider, in the light of previous discussions of the Rome statute.

The Opposition are interested in the future prospects for including the crime of aggression in legislation covering the court. My hon. and learned Friend the Member for Harborough (Mr. Garnier) has already asked for a further explanation of what the Solicitor-General understands aggression to mean. Much long deliberation has taken place on the point and I want to know the Government's stance, and that of other states, on lobbying for the addition of such new crimes.

Back in 1951—before I was born—when the International Law Commission prepared the draft statute, consideration was postponed pending the adoption of a definition of aggression. The General Assembly of the United Nations adopted a definition of aggression in resolution 3314(XX) in 1974. However, work on the draft code of offences against the peace and security of mankind, which was undertaken from 1947 to 1953, was suspended again, awaiting the definition of ``aggression'', and resumed from 1983 to 1996, when the draft code was adopted. It has been a long and rocky road.

Given that not all states could agree on the definition of aggression, there must be some unease about the other three seemingly agreed categories of crime. In truth, they are not agreed; otherwise, countries such as the United States and France—which is announcing its intention to move forward very slowly, if at all—would not be closely examining their opt-outs. Difficulties, to which hon. Members have alluded during previous debates on the Bill, surround the contents of the existing statute.

Mr Stephen Day (Cheadle, Conservative)

Will my hon. Friend seek to explore with the Solicitor-General why the Government do not reflect the attitude of France? Of all the potential or actual signatories to the agreement, France plays the most obviously similar role to that of Britain in terms of world affairs, both military and diplomatic.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

My hon. Friend makes a valid point. I hope that the Committee will have the opportunity to discuss at length new clause 1, which we tabled to provide a vehicle to explore the opt-out clause. I understand that the Government Whip has expressed his willingness to negotiate about bringing certain new clauses further up the agenda in the timetabling of the Bill. We shall discuss that generous offer after the recess, to determine what will be most beneficial to the Committee. We have made a good start today, but it would be nice to ensure that we had time to consider in detail some of the meaty points that have already been raised during the scrutiny of the Bill. I am looking forward to fruitful discussions between the usual channels to enable us to discuss the opt-out clause. I see that the Whip is nodding from a sedentary position. It was a most generous offer on his part.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

The hon. Lady should not wind up my hon. Friend the Member for Harrow, East.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

It still comes as a bit of a shock when we try to co-operate on the business of the House, but I have taken part in so many debates in Westminster Hall that it almost comes as second nature to me, so I accept the Government's generous offer.

I have been diverted slightly from the point. I should like the Solicitor-General to clarify the problems that arose at the Rome conference in relation to the definition of aggression, and how he envisages their being overcome. Is he lobbying for aggression to be included, and if so, what is his understanding of it? If he is not lobbying for that, why not? Can he broaden his brief to give us an overview of how other countries are moving in this respect? There is great interest in those that have already ratified the Rome statute, and it would be interesting to know what discussions he has had with them and how they perceive the progress that has taken place.

I am grateful to my hon. Friends for giving me the vehicle that has enabled me to raise those few points.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

My hon. Friend the Minister of State, Foreign and Commonwealth Office, said in the previous debate that we acknowledged that it was not desirable that crimes be introduced by the back door. I assure the Committee that the Bill, coupled with the statute, will not result in crimes being introduced in that way.

The argument is threefold. First, clause 1 states clearly:

``ICC crime means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Statute.''

I will return to the aggression point later, but that clause states that the crime must be a crime in accordance with the Rome statute of 17 July 1998. The crimes are set out in that statute and not in the statute as amended or as it might be changed in future. Clause 1 clearly defines ICC crimes and makes concrete the present position. I reiterate that the crimes are only those that appear in the 1998 statute: the Bill does not provide for future crimes.

Secondly, I will address the issue of amending the statute. As the hon. Member for Reigate pointed out, article 121 states that the statute can be amended after seven years. It is therefore possible for new crimes to be introduced. However, under our law, further legislation would be required to introduce new crimes here. That should answer the hon. Gentleman's point about safeguarding Parliament. If there is an amendment in future, and we agree with it, we must pass further legislation. We in Britain do not take the view taken in some countries that international law has immediate effect in domestic law. We take the view that international law must be incorporated through legislation. Assuming that a future amendment to the Rome statute is made and new crimes are created, there would also have to be an amendment to the Act that this Bill will become. Therefore if we agree with future revisions and the definitions of new crimes and want to include them in UK law, we will introduce further legislation. No new crimes will be created after the Bill is enacted without the matter returning to Parliament.

Thirdly, there is the question of what happens if we do not agree to amendments agreed between other countries? For example, we may disagree with the new crimes created under the Rome statute. The hon. Gentleman pointed out, rightly, that the amendment provisions are set out in article 121 and he mentioned the majorities involved. He quoted the key provision of that article: paragraph 5, which states:

``In respect of a State Party which has not accepted the amendment''—

in this case, the UK—

``the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals''—

for example, our armed forces—``or on its territory.'' The statute itself gives us protection. If other countries were to agree that a new crime should be covered by the statute and we did not like it, we could exercise our right under that article.

Mr Crispin Blunt (Reigate, Conservative)

I hope that the Solicitor-General is not muddling up the Executive and Parliament when he uses the term ``we''. It is for the Executive using their normal powers to decide whether they will accept the amendments to which article 121.5 of the statute refers. I am concerned that he is using ``we'' to mean Parliament. He rightly points out the statute contains protection, but it would not give Parliament the right to which he referred—only the Executive. Will he clarify which ``we'' he means?

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I use ``we'' to refer to the Executive. If we, the Executive, do not like the matter, that is the end of it. It does not even come before Parliament. The second thread of my argument, however, was that there must be an Act of Parliament for any treaty to be incorporated into our law. That would apply in this respect. A treaty does not become binding in domestic law because the Executive sign up to it. There must be legislation.

First, the crimes are frozen in time, at 1998. Secondly, if the Executive agree to a change, there must be an Act of Parliament. Things would not even get that far if the UK Executive said that they did not like the inclusion of a crime to which other countries had agreed. The protection afforded by article 121.5 of the statute would then come into effect.

Mr Crispin Blunt (Reigate, Conservative)

I would like to be quite clear about the interpretation. If the Executive took that position, Parliament would not need to object unless it wanted to override the Executive because it wanted us to be bound by the amendment. If the Executive had decided against an amendment, would it be binding on British troops serving in another territory which accepted the crime under the amendment?

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

No, that would not be the case. Article 121.5, which the hon. Gentleman himself read out, clearly states that the ICC cannot exercise any

``jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals''—

such as our armed forces—``or on its territory.'' If our nationals were to commit such a crime elsewhere, the veto would operate. The ICC would not have jurisdiction. The armed forces here and abroad, as well as any crimes defined by the amendment committed on our territory, would therefore be excluded. That makes the third part of the argument.

The hon. Gentleman raised other points about how the interpretation of crimes might change over time. The parameters of those crimes—we will discuss their substance later—are fairly clearly drawn. Furthermore, our international lawyers have significantly affected the development of international law. They have always been respected for their practical work, for example in the World Court, and for their writings. We can affect the interpretation of those crimes as set out in the 1998 statute.

The other point to note is that the 1998 statute incorporates crimes that are already part of our domestic law. In 1957 and 1995, the Conservative Governments—I give them credit for it—incorporated the Geneva conventions of 1949 and their protocols. Some of those crimes—we shall address this matter later—are already part of our domestic law. In that sense, we might well be said to have an influence on the interpretation of those crimes.

Those are the three important elements of the argument, but there is also the issue of aggression. The hon. Member for Chesham and Amersham (Mrs. Gillan) tempted me to discuss whether that relates to the current problem in the far east. There will be discussions in the future about the meaning of aggression, and our international lawyers will play an active role, as they have done already. Our current position is that it is for the Security Council to determine whether aggression has occurred.

In terms of the treaty, aggression would be a crime of individual responsibility. Our present position is that it is for the Security Council to determine whether there has been an act of aggression. Were there ever to be agreement on that issue in terms of the Rome statute, it would be put down on paper. Parties must agree under article 121, in which case the crime of aggression would become a matter of individual responsibility.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I appreciate the Solicitor-General's point, but I hope that this will not prove to be a case of false shyness. Will he tell us both his opinion and the Government's current thinking on the matter? It is important to elicit that while we are scrutinising the Bill. He is about to depart from the issue without telling us the Government's current thinking and whether he is lobbying for the inclusion of aggression.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I should transgress the Standing Orders of the House were I to be tempted down that line because aggression is not in the Bill—we have deliberately omitted that issue. Let me instead address the matter of aggression being in the statute. The hon. and learned Member for Harborough and the hon. Member for Reigate referred to article 5.1(d) of the Rome statute, which mentions a crime of aggression. Significantly, article 5.2 states:

``The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining a crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.''

In other words, the only way in which a definition of aggression can be adopted under the Rome statute is by virtue of the amendment provisions. That returns us to article 121.5, which, as I said, gives the Executive a veto over any definition that might be adopted by other members.

Mr Crispin Blunt (Reigate, Conservative)

I have followed the Solicitor-General's arguments carefully. What would be the effect of accepting amendment No. 36 alone and thereby removing the phrase

``(other than the crime of aggression)''

from the Bill? Given the arguments that the hon. and learned Gentleman has adduced, I cannot understand why that phrase is required.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I think that the amendment is self-defeating, because the Bill excludes aggression from the definition of ICC crime. If the hon. Gentleman's amendment were accepted, clause 1(1) would state:

```ICC crime' means a crime . . . over which the ICC has jurisdiction in accordance with the ICC Statute.''

As a result, aggression would be included, but we are trying to provide that the Bill does not cover aggression at all.

Mr Edward Garnier (Harborough, Conservative)

With the greatest of diffidence, I beg to disagree with the Solicitor-General. As he said, if the amendment of my hon. Friend the Member for Reigate were accepted, clause 1(1) would state:

```ICC crime' means a crime . . . over which the ICC has jurisdiction in accordance with the ICC Statute.''

Article 5.2 of the Rome statute makes it clear that the court does not have jurisdiction over an undefined crime. The crime of aggression has yet to be defined, and will not be defined until seven years after the ICC comes into existence. Therefore, the phrase in question simply adds unnecessary verbiage. It may be harmless, but it is not strictly necessary. If one construes clause 1(1) in conjunction with article 5.2 of the Rome statute, one surely concludes that the phrase which my hon. Friend seeks to delete does not help us.

It would be more interesting to establish the Government's definition of the crime of aggression, so that we can work out where they are coming from. The Solicitor-General is getting himself into a muddle if he believes that the phrase in question is important.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

It may be that there is a superabundance of caution. We are taking aggression out; the Bill will not deal with it. The hon. and learned Gentleman is right to say that, were the phrase in question to be omitted, there would still have to be agreement, pursuant to the treaty, if there were to be any effective crime of aggression in terms of the statute. However, the fact is that we are omitting aggression completely from the Bill.

Mr Edward Garnier (Harborough, Conservative)

Perhaps we are simply having a semantic and therefore sterile argument. None the less, I do not want the Solicitor-General to get hung up on a hook of his own making. If the phrase in question is not necessary to give effect to the statute, there is no harm in agreeing to my hon. Friend's suggestion to delete it. If the Government are saying that it is essential, and that to omit it would destroy the purpose and effect of the statute and its translation into domestic law, that is an argument that I can understand and accept. However, according to a simple construction of article 5.2 of the statute and clause 1(1), the phrase is unnecessary until completion of the review conference, seven years after the coming into force of the ICC.

I repeat that this may be a sterile and semantic argument, and it might not make much difference whether the phrase is included or not, but I do not want the Solicitor-General to mislead himself or his hon. Friends into thinking that the words

``other than the crime of aggression''

are vital for the proper carriage of the Bill into law. They are not.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

All I can say is that aggression is covered by article 5. The court has jurisdiction but there must be agreement in future about what that means. It is subject to article 121 and would allow us to block or veto any agreement that we were not happy about. If agreement were to be reached during the negotiations it would be only as a result of an amendment pursuant to article 121 which contains the important paragraph 5; that allows the Executive to block the operation of that crime in respect of our nationals or of offences committed on our territory.

Mr Edward Garnier (Harborough, Conservative)

Does the Solicitor-General accept that there is no such thing defined by the Rome statute as the crime of aggression? There may be an informal definition of the crime of aggression that he and I would understand—for example, the German invasion of Poland, or of Belgium in 1914. Will the hon. Gentleman accept that at present under the Rome statute, until the completion of the seven-year review conference, there is no definition of the crime of aggression, therefore there is no crime of aggression over which the ICC has jurisdiction, and thus the words in brackets are superfluous? That may not matter, but insofar as it does, will the Solicitor-General accept that the words are superfluous?

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

In a sense, we return to the point made by the hon. Member for Reigate about the role of Parliament. Were we to accept the amendment, it would not be necessary to return to a parliamentary discussion of aggression, as it would be in the Bill.

Mr. Garnier rose—

Mr Frank Cook (Stockton North, Labour)

Order. If we are to make progress, I am happy to allow the debate to continue in a free-flowing fashion, but interventions are becoming increasingly lengthy. I am happy for exchanges to take place, but would hon. Members please curtail the length of their interventions?

Mr Edward Garnier (Harborough, Conservative)

I accept your words, Mr. Cook. An advantage of Committee stage, particularly of such a highly complicated Bill, is that the Solicitor-General and I can have these discussions, although they may not be edifying to anyone other than me.

If the words in brackets are omitted, it would not prevent the seven-year review conference or the assembly of state parties from arriving at a definition of the crime of aggression in seven years' time, when the Executive would introduce a Bill in the House to amend this Bill. The amendment tabled by my hon. Friend the Member for Reigate, which would delete the words in brackets, does not undermine the good sense of the Rome statute. Will the Solicitor-General come with us at least that far? We are not interfering with the Executive's prerogative and their freedom of negotiation at the seven-year conference.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

I accept what the hon. and learned Member said, but the problem is that, if the words were removed, and there were to be agreement about aggression, without new legislation we would have to surrender nationals of other states. Even though we had not accepted in an Act of Parliament the definition of aggression, we would have to surrender nationals of other states in accordance with that definition.

Mr Edward Garnier (Harborough, Conservative)

Not before the seven-year conference.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

That is absolutely right; there must be agreement. I posit a situation where there is agreement about a definition of aggression but it has not been implemented in our law. None the less, we would have to surrender nationals of other jurisdictions. That is why we take the view that it is better to separate the crime of aggression from the definition of ICC crime.

Mr Crispin Blunt (Reigate, Conservative)

My intervention might be important in determining whether I press the amendment. Is the Solicitor-General saying that, if amendment No. 36 is accepted but amendment No. 37 is not, the effect would be that the United Kingdom would then be subject, without any further reference to Parliament, to a definition of the crime of aggression that might be agreed at the review conference in, say, seven years?

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

There is a slight gloss on that. We would not be subject to the definition generally, but we would be subject to it in terms of surrendering nationals of other jurisdictions. That is the point.

The crime of aggression is not in the Bill, but it is in article 5 of the statute. It is not defined; there will have to be discussions about it in the future. If an agreement is reached about the definition of aggression with which we do not agree, we would have the right, under article 121.5, to say that we do not agree. If we agree, we would have to introduce legislation to implement such an agreement. However, in the absence of legislation, we would still be bound in a limited way, in that we would have to surrender nationals of other jurisdictions who are in this country, if the ICC issued a warrant in respect of the crime of aggression.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

If that is the case, can the Solicitor-General tell me what has happened to the definition of aggression adopted by the General Assembly of the United Nations in the resolution that I mentioned earlier—3314(XX), adopted in 1974—and the draft code that was adopted in 1996, which covered aggression? The code's future status appears to be uncertain, particularly in light of the elements of crime. I understand that a lengthy paper was circulated at the Rome conference. For the purpose of better understanding, what is the status of those definitions that were adopted in the past vis-a-vis the statute?

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

As I said, we take the view that it is up to the UN Security Council, in accordance with the charter, to determine aggression. That is our approach. The ICC preparatory commission did not adopt the resolution and draft code.

I shall summarise what I have said so far. As my hon. Friend the Minister of State, Foreign and Commonwealth Office said earlier, we appreciate the concerns that have been raised by Opposition Members. However, we take the view that there is adequate protection in the Bill and in the Rome statute. The definition of ICC crime is frozen in time. If crimes are added, there will have to be an amendment, according to article 121. Paragraph 5 of article 121 is an important provision that allows the Executive to say that we do not agree. If we do not agree, our nationals are not bound and, in terms of acts committed on this territory, the ICC has no jurisdiction and so there is that protection. Even if the Executive agree about some future crime—for example, aggression—Parliament must legislate. There is that protection that concerned the hon. Member for Reigate. There is adequate protection from those four aspects in both the Bill and the statute.

Mr Crispin Blunt (Reigate, Conservative)

We have had an interesting debate. I hope that the Solicitor-General will listen carefully to what I say to ensure that I have not misunderstood the meaning of the provisions. The Government have not told us what they understand aggression to be. We have had no information about why it was not possible in the negotiations that formed the Rome statute to come to an agreement about aggression, where the areas of difficulty are and whether it is the UK that is having great difficulty with this or some of the other parties to the agreement. We therefore have to discuss this in a vacuum in that we do not know how aggression is defined. This is an important issue that could affect the UK.

The Solicitor-General said that perhaps one of the reasons that the exception

``other than the crime of aggression''

was in the Bill was a superabundance of caution. If we need a superabundance of caution on the issue of aggression, a superabundance of caution on other issues is called for and so my amendment No. 37 should be taken with amendment No. 36 to include in the Bill any amendments to articles 5, 6, 7 and 8. As I understand it, that would cover the entire position and it would make it explicit in clause 1 that if there were any changes to those articles, which would obviously include a change to article 5.2 with the definition of aggression, the position of Parliament would be protected.

The Government may argue that that is not necessary because there are protections elsewhere in the Bill. The Solicitor-General did not take us through the detail of where those protections come from on amendment No. 37 and he addressed his remarks almost exclusively to amendment No. 36. As I understand his presentation, if we take out the phrase

``other than a crime of aggression''

on its own, if there were an agreement about the definition of aggression and a review conference in seven years' time, the only people whom we would protect would be foreigners in the UK who are sought by the ICC to be arraigned for trial on the crime of aggression. It seems rather odd to seek to put in the protection of the law in that instance.

If we are satisfied that the ICC is an institution in which we can have great confidence and that it will work in the way that we want it to work, if an agreement is reached about the definition of aggression in seven years' time by seven eighths of its members, why will we stand in the way of allowing it to issue a warrant for the arrest of a non-British subject in the UK who is guilty of the crime of aggression? It seems peculiar for the Government to come forward with that argument. Why are we seeking to give a non-British subject protection from the ICC in that way?

The position would be infinitely clearer if amendments Nos. 36 and 37 were accepted. Amendment No. 36 might be otiose because, if we leave in

``other than the crime of aggression'',

the only effect would be to protect foreigners in the circumstances that were described by the Solicitor-General. Amendment No. 37 would make it clear at the beginning of the Bill exactly what powers would be left for Parliament if articles 5, 6, 7 and 8 were amended. I presume that a definition of the act of aggression would be included, although everything would be covered. The amendment would ensure clarity in the first clause of the Bill, which would mean that we would not have to go to clause 50, and its reference to schedule 8, and get into the grey area of interpretation from a court whose judges may not act in the way that we expect. Therefore, I am content to withdraw amendment No. 36, but I want to press amendment No. 37 because it would achieve the desired effect.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

On a point of order, Mr. Cook. I appreciate the way in which the Opposition have tabled their amendments, which have been both probing and attempts to change the wording. However, we must be clear about whether amendments, if they are grouped, can be split and voted on separately. I did not realise, and the usual practice has not been, that Members could move amendments and suggest that some be voted on and others not be voted on as a pick and mix. I would like your guidance on that question.

Mr Frank Cook (Stockton North, Labour)

Such choice is normal practice. The only stipulation is that the amendments should be dealt with at the point where they apply in the Bill. It is normal practice for some amendments in a group to be withdrawn and others forced to a vote.

Mr Crispin Blunt (Reigate, Conservative)

Let me make it clear. We have concluded the debate on the amendments and, if I were pressing amendment No. 36 to a Division, now would be the time to do that. I do not want to do that, but I will press amendment No. 37 to a Division. I understand that now is not the time for that, because it comes at the end of clause 1 and not with amendment No. 36. I hope that my intentions are clear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Edward Garnier (Harborough, Conservative)

I beg to move amendment No. 5, in page 1, line 9, after `aggression', insert

`, and other than the transfers referred to in Article 8.2(b)(viii), except where those transfers are involuntary on the part of the person transferred.'.

Mr Frank Cook (Stockton North, Labour)

With this we may discuss the following: Amendment No. 6, in clause 50, page 26, line 16, at end insert

`, other than the transfers referred to in Article 8.2(b)(viii) except where those transfers are involuntary on the part of the persons transferred.'.

New clause 6—Necessary conditions for Act to have effect—

`This Act shall have effect subject to—

(a) Her Majesty's Government having made an effort in good faith to obtain a correction to the tests in Arabic, Chinese, English, French, Russian and Spanish of Article 8.2( )(viii), by way of a proces-verbal of rectification to be issued by the Secretary General of the United Nations as depositary of the ICC Statute after communicating the proposed correction to all interested states, specifying that the transfers referred to in Article 8.2(b)(viii) are criminal only if those transfers are involuntary on the part of the persons transferred, and

(b) failing success in that effort, Her Majesty's Government having made efforts in good faith to obtain an amendment to the Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000, similarly specifying that the transfers referred to in Article 8.2(b)(viii) are criminal only if those transfers are involuntary on the part of the persons transferred, and to obtain a similar specification in the Elements of Crimes to be adopted in accordance with Article 9, and

(c) in that case, Her Majesty's Government having, when ratifying the ICC Statute, made a declaration to the effect that the United Kingdom regards the transfers referred to in Article 8.2(b)(viii) as criminal only if those transfers are involuntary on the part of the persons transferred, and not in any case withdrawing that declaration.'.

Mr Edward Garnier (Harborough, Conservative)

Amendment No. 5 would make an exception for transfers that are involuntary on the part of the person transferred. Amendment No. 6 would make the same change at the end of clause 50(3), which reads:

``The Secretary of State shall set out in regulations the text of the Elements of Crimes referred to in subsection (2), as amended from time to time.''

New clause 6 addresses a related issue but is a self-standing new clause.

In essence, the linking concept is that of the involuntary, as opposed to the voluntary, transfer of populations or sections of populations, which is to be discussed in the light of article 8.2(b)(viii) on page 7 of the blue paperback volume of the Rome statute. Through the amendments, we are seeking to ascertain whether article 8.2(b)(viii) as incorporated into the Bill represents existing international law. The transfers referred to in that provision should be criminal only if they are involuntary on the part of the person or persons transferred.

There is a wider issue to be considered. The Government repeatedly sought to reassure the Opposition in another place and implicitly on Second Reading in the House of Commons that no new offences were being introduced by the passing of the Bill. The Government point out that it merely codifies existing international law. However, if it can be shown that the Rome statute has created a new area of international criminal law, our suspicions about the ICC's jurisdiction will—or, at the very least, might—have been confirmed.

My hon. Friend the Member for Chesham and Amersham will advance arguments on behalf of the Board of Deputies of British Jews, particularly in respect of its concerns about the occupied territories of the west bank and other parts of the middle east. However, I shall not descend into such detail. I shall concentrate on the Bill and the passages of concern in article 8.

Under paragraph 1,``The Court''—that is, the ICC—

shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.''

That sets the context in which paragraph 2(b)(viii) is to be construed and considered, but I have some preliminary questions for the Minister. Presumably, the use of the words ``in particular'' is significant. What do they mean in the context of article 8.1? Is it suggested that the court should not have jurisdiction when the events described are not part of a plan, policy or large-scale commission of such crimes but are none the less heinous acts of which we would all heartily disapprove?

My study of the history of the extension of international jurisdiction leads me to suppose that it originated in co-operation between states against pirates, who were considered to be enemies of all people. Therefore, the Mediterranean states in mediaeval times and, I dare say, even under the Roman empire of the immediately pre- and post-Christian eras, quickly co-operated to deal with the scourge of pirates, who were thought to be broadly outside the law and therefore fair game. What is the purpose of the use of the words ``in particular'' and do they have any real significance as matters of law when one is construing for later paragraphs under article 8?

In article 8.2(a) and (b) war crimes are defined as

``Grave breaches of the Geneva convention of August 1949, namely, any of the following acts against persons or property protected under the relevant Geneva convention''.

The article then lists eight sub-categories:

``(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.''

Those are all situations, to use the language of the statute, that occurred during the second world war. It is not surprising that the 1949 Geneva convention grew out of the horrors of that war—particularly those perpetrated by the Nazi regime of Hitler's Germany and, to some extent, by the wartime Government of Japan. No civilised person would have been in the least surprised that the international community, through the United Nations and the conventions, decided to mark its abhorrence of such activities and to offer some form of international protection, insofar as it is possible to do so, to potential victims of inhumane conduct, as set out in article 8.2(a)(i) to (viii).

However, I do not understand why it is necessary to divide article 8 into two sections. Paragraph 2(b) goes on to describe:

``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts''.

We are concerned with sub-sub-paragraph (viii), which refers to:

``The transfer, directly or indirectly, by the Occupying Power of parts of its civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.''

It is difficult to qualify degrees of seriousness when talking about war crimes. They are all undeniably beastly. I do not know why we need a separation between

``Grave breaches of the Geneva convention''

and ``Other serious violations'', unless it is simply because ``Other serious violations'' under sub-paragraph (b) are not found within the Geneva convention.

I could accept that as a drafting point but there seems no reason why the Rome statute should restrict itself to the definitions under the Geneva convention and then set out further ones. Surely article 8 can define war crimes in its own way without the unnecessary and confusing division between sub-paragraphs (a) and (b) to paragraph 2? That may be a side point but I invite the Government to give their views on it.

I come to the guts of our amendment and the thrust of my argument: the transfer of populations by occupying powers, be they populations within occupied territory or

``the deportation or transfer of . . . the population of the occupied territory within or outside this territory.''

I am confused by some of the language used. As it will be imported into our domestic law, it is as well that we clarify what it means, even if only to provide a reference point under Pepper v. Hart—so that what I believe is called the competent court, which will receive the ICC demand for delivery of a potential defendant within our jurisdiction, can understand what we are on about.

Paragraph 2(b)(viii) contains the phrase ``directly or indirectly''. Am I right in thinking that indirect transfer by an occupying power of part of its civilian population into the territory occupied means the transfer of groups of people via a third place? For example, would a British occupying power that had taken control of country A and wished to move the indigenous population of country A either to another part of that country or to country B be guilty of indirect transfer if it moved that population, either within country A via country C, or to country B via country C? Would it really matter? We are concerned about the evil of transferring populations against their will. Presumably, we do not object to the free movement of people within the modern understanding of that term, especially within the European Union.

It must be assumed—and I hope that the Minister will help me—that the implication of the definition of a war crime for the purposes of paragraph 2(b)(viii) means the involuntary transfer by an occupying power of parts of its civilian population into the territory occupied, or the involuntary transfer of the population of the occupied territory. Clearly, the concept of involuntary movement is contained within the word ``deportation''. When the courts deport foreign citizens who have committed crimes in this country, they are the involuntary objects of that court order. However, if those citizens—or to be precise within the terms of article 8.2(b)(viii), if that group of people—voluntarily move from A to B, or A to B via C, there can be no war crime. The Bill should certainly make that clear if it is not clear in the statute, which is an instrument that we cannot amend.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Does the hon. and learned Gentleman accept that, in the context of a war or a war crime, there could be a crime committed if a population was forced upon an indigenous population to dilute its presence in a particular area? Those people may agree with the aggressor's attempt to do that, but the fact of doing it would be a crime perpetrated on the indigenous population and not on those who may move voluntarily.

Mr Edward Garnier (Harborough, Conservative)

The answer to that is to be found within the hon. Gentleman's own question—he began by using the word ``forced''. If that is what article 8.2(b)(viii) means—the use of means to move a section of population involuntarily—I would understand.

The hon. Gentleman represents a Scottish seat. Let us take a ludicrous example and suppose that the Black Watch—a Scottish regiment—takes charge of a particular section of the Scottish borders. The Black Watch decides, because of the foot and mouth crisis, that anyone who has connections with Cumbria or Northumberland but who happens to live in Scotland ought to be moved into England, whether they like it or not. That would be an involuntary movement, because there is no doubt that those people of English descendent had long-term rights of residence. On the other hand, if the Black Watch let it be known that in order to disguise the movement of the English population, indigenous Scots should move south as part of what article 8.1 terms ``a plan or policy'', to move the non-Scottish population south of the border, they would be volunteers, although presumably they would also be war criminals rather than the victims of war crime.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

My apologies for not having made my position clear in my intervention. The situation to which I refer need not be fictional or imaginary. Everyone in this Room knows of recent events in Europe or Africa in which aggressors have moved populations who are sympathetic to their aggression voluntarily into areas that were occupied by ethnic minority groups to dilute that population and influence the Government in that area. The hon. Gentleman's amendment would allow that sort of behaviour as long as those who wanted to move did so voluntarily, even when those who were moved in on did not want to accept them.

Mr Edward Garnier (Harborough, Conservative)

That is the view of a Government Back Bencher, and a perfectly legitimate one to hold. However, I would like to know what the Government's view is, as they have the carriage of the Bill. If their view coincides with that of the hon. Gentleman, fair enough. I avoided giving specific contemporary examples because the ICC is not yet up and running and it will be some time before it is. I am sure that a Foreign Office Minister would also want to avoid giving such examples because they might prove embarrassing, which he would not want as a matter of foreign policy.

I am worried that activities that may be caught by the statute of Rome and are translated into our own law may have unforeseen or embarrassing consequences. The hon. Member for Kilmarnock and Loudoun (Mr. Browne) has raised a legitimate point. Perhaps the Minister will respond.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

Article 49 of the fourth Geneva convention refers to deportation—that is, as the hon. and learned Member for Harborough has rightly said, involuntary movement of people. However, it also refers to transfer, which is movement with consent, perhaps, of the civilian population into the occupied area. Voluntary and involuntary movement are already covered by international law, which is the basis of the statute to which article 8.2(b)(viii) refers. I hope that that is helpful.

Mr Edward Garnier (Harborough, Conservative)

It is helpful, but it does not answer the entire problem because we have to deal with an unamendable statute, parts of which are being introduced into English and Welsh domestic law. I can bite only on the Bill, not on the statute. However, I have to understand the statute of Rome, which is being sucked into British law, which is amendable according to the will of the Committee and of Parliament as a whole.

A particular example that I shall use is that of refugee populations at the end of the second world war in Europe. In May 1945, the Allied forces moved up the Italian peninsula and east through France and southern Germany, while the Soviet forces moved through what was then Yugoslavia. All three groups of people were heading towards Vienna, which was the prize: the Soviet Russians wanted to get as far west as they could before the peace was drawn up and the Allies wanted to prevent them from getting too far west and, especially, wanted to keep Vienna and the rest of Austria this side of the iron curtain, which was yet to be drawn up. There were in that crucible millions of refugees who had been displaced from eastern Europe. They included former White Russians, and citizens of Yugoslavia who may have been Nazi sympathisers and fought with the Germans against the partisans of Yugoslavia. There were any number of people fleeing west from the encroaching domination of the Soviet Union. That mobile population was being pushed and pulled in all directions by the movement of Allied and Soviet forces.

There came a time when, if there was to be a war between the Allied forces and the Soviet Union in May 1945 or shortly afterwards, the decks would have had to be cleared in northern Italy and Austria so that the civilian populations were not in the way of the potentially warring factions. The Allies moved the refugee populations—they stuck them on trains and took them into occupied territory. Some moved further south behind Allied lines into Italy, while others, particularly those who had sympathised with the Nazis, were moved into the path of the advancing Soviets. They would have been deported or transferred into occupied territory outside their own territory. For example, Croatians who had supported the Nazis were removed from northern Italy and Austria and went well back in Yugoslavia, where Tito and his forces would have picked them up. Many such people came to an ugly end without a trial in the sense that the Minister or I would recognise.

That is an ancient example, which happened over 60 years ago. However, does the Minister think that, by translating article 8.2(b)(viii) into our domestic law, the movement of such populations by the Allied forces would amount to a war crime? I ask that question irrespective of the motive for such movement, although the primary motive in that case was to clear the decks to allow a clear field of battle if the Soviets attacked. Would the Allied leaders—Churchill, Roosevelt or Truman—have been guilty of a war crime under the statute of Rome for causing the involuntary movement of populations?

I cite the historical example in order to keep the matter outside present diplomatic circumstances. I have deliberately avoided reference to Israel, which I know that my hon. Friend the Member for Chesham and Amersham wishes to discuss. I am also avoiding reference to situations in Ethiopia and Somalia, where there has been the movement of populations, possibly as an instrument of war. Instead, I shall allow the Minister to discuss an ancient example with full diplomatic freedom.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

Is the hon. and learned Gentleman satisfied that we are creating something new? The protocol to the Geneva convention which was adopted and ratified by the Conservative Government is set out in similar terms to article 8.2(b)(viii) and is already part of domestic law. There is nothing new about the matter.

Mr Edward Garnier (Harborough, Conservative)

I am asking the Government questions about the Bill. The hon. Gentleman may be right, but there may come a time—he has about six weeks to wait—when he is a member of the Government and can speak for them. At present, in Committee, he speaks for himself, his constituents and the Labour party, because he is an official of the party.

We are considering a difficult constitutional area in which treaty-making power is entirely in the Government's hands, as representatives of the sovereign. Parliament have an incidental role in such matters. The hon. Gentleman may find it disagreeable and tedious, especially on the day before we adjourn for the Easter recess, to have to listen to my questions, but it is legitimate that I ask them of the Government. I am prepared to be cross-examined by the hon. Gentleman, but I want the Government to answer my questions, as we are debating their legislation, and they have a majority in Committee.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

My hon. Friend the Member for Kilmarnock and Loudoun raised a fair point: previous Conservative Governments introduced the crime into UK law through the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, which adopted the additional protocol. I am entitled to ask whether the hon. and learned Member for Harborough disagreed with the decisions of Conservative Governments on those occasions.

Mr Edward Garnier (Harborough, Conservative)

The Minister is being unduly sensitive, although he is usually a reasonable fellow. [Laughter.] Easter eggs are on the way.

I do not have a problem with the Conservative Governments' actions on those occasions, but I am concerned about the present Government's attitude. The Minister represents that Government, and, as they are the Executive, they have a responsibility to explain their attitude, and I have a responsibility to ask questions about it. Asking for my thoughts about legislation passed under Conservative Governments is about as useful as asking the Minister for his views on the minimum wage. His question would make an interesting school debating point, but we are dealing with the formulation of legislation in a strange constitutional area in which we, as parliamentarians, have little grip on the substance of what is debated. As a Member of Parliament, I cannot touch the statute of Rome. The Minister, as a member of the Government, has presented it to me, and I am grateful for that, but I cannot deal with it, except to admire and salute it as it passes along the Corridor from the House of Lords to the House of Commons and back again.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

The treaty is built on internationally agreed legislation to which the previous Conservative Government signed up because they thought that it was a good thing. Why does the hon. and learned Gentleman wish to debate it again now, if he has already agreed to it?

Mr Edward Garnier (Harborough, Conservative)

If debate is inconvenient, I apologise. I was elected to Parliament to hold the Government to account. It is not relevant to the debate to ask whether my party did the right thing by passing those pieces of legislation. We all know the derivation of many of the articles in the statute of Rome, and of many of the definitions of the criminal act that are being introduced into domestic legislation by the Bill. The Attorney-General explained their derivation in the other place. That is not a secret, and I do not resile from my view that previous Conservative Governments were right to introduce those pieces of legislation.

I am paid by the public to ensure that the Government explain themselves, rather than to explain the Opposition's thoughts on these matters. I hold many opinions, but they are of no account. However, the thoughts of the Minister, who represents the sovereign, are of significance, particularly in the esoteric areas of treaty making and the legislation relating to the ratification of treaties, as are the views that the Government hold, either as a matter of diplomatic policy or political necessity, and how they seek to defend their actions. If their answer to my questions is that it must be good because the Conservative Government passed it before, that is sensible. If that is the Labour Government's answer, I wait to hear it fall from the Minister's lips, and we shall be able to set it to music in due course.

I have had some interesting discussions with the hon. Member for Kilmarnock and Loudoun and the Minister of State, and some fairly interesting discussions with the Solicitor-General. He and I have known each other for a little while and can make such silly remarks, although he may not like them.

I am trying to extract from the Minister the Government's view and explanation for the Bill. The matter is all the more important because we have reached the end—I understand; I have not read The Sun today—of the parliamentary programme. If the Bill is to pass through all its stages before the election is called, and if we assume that the election will be held on 7 June and that Parliament will be dissolved in the first 10 days or so of May, the Government will be under considerable time pressure for the Bill to complete all its stages in the House of Commons and the other place before dissolution.

I have a suspicion that, if consideration of the Bill is incomplete, the Foreign Secretary will ask the Opposition about their attitude. We shall have to see what stage the Bill has reached, but before we make any decisions about whether to co-operate with the passing of half-complete deliberations, we shall want to know the Government's opinion of their Bill.

If the Minister's response is, ``Well, you did it, so it must be a good thing,'' I understand that, and if that is the height of his argument, good luck to him. However, I am entitled to extract explanations from the Government.

Amendment No. 6 to clause 50 relates to regulations on the text of the elements of crimes referred to in subsection (2) and amended from time to time. Subsection (2) of clause 50 states:

``In interpreting and applying the provisions of those articles the court shall take into account—

(a) any relevant Elements of Crimes adopted in accordance with article 9, and

(b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000.''

That requires us briefly to consider article 6, which is headed ``Genocide''. Again, I say candidly that the definition of genocide specified therein is not new, as the Minister would be one of the first to concede. I may have said so before. It is a definition of genocide taken from earlier instruments, which I accept. I should like to ascertain the Minister's attitude to the insertion of the words proposed in relation to the transfers of population referred to in article 8. As the arguments that apply to clause 50 are precisely those that I advanced in discussing an earlier amendment, I need not repeat them.

New clause 6 refers to the Government's

``having made an effort in good faith to obtain a correction to the tests''

in various languages set out by way of the process of rectification. We discussed the matter earlier, and I do not intend to enter that country a second time.

We invite the Committee to add

``failing success in that effort, Her Majesty's Government having made efforts in good faith to obtain an amendment to the Elements of Crimes contained in the report of the Preparatory Commission''—

which relates to clause 50, which I mentioned a moment ago—

``similarly specifying that the transfers referred to in Article 8.2(b)(viii) are criminal only if those transfers are involuntary on the part of the persons transferred''.

Subsection (c) of the new clause states that

``in that case, Her Majesty's Government having, when ratifying the ICC statute, made a declaration to the effect that the United Kingdom regards the transfers referred to in Article 8.2(b)(viii) as criminal only if those transfers are involuntary on the part of the persons transferred, and not in any case withdrawing that declaration.''

In the light of the arguments that I have advanced in relation to amendment No. 5, I trust that those advanced in relation to new clause 6 do not need further elaboration. I can provide such elaboration if the hon. Member for Kilmarnock and Loudoun would like me to do so, but I suspect that he would prefer that I did not. I know that he has taken a careful note of all that I have said so far. Will the Minister say what is the view of the ``sovereign''—if the Minister needs assistance on that question, I know that the Solicitor-General is eager to give it—on the way in which its prerogative power will be used as a consequence of our ratification of the statute of Rome in regard to war crimes of movement, whether deportation or voluntary, of populations within territories and from one territory to another? I use the word ``sovereign'' in inverted commas because, nowadays, for this purpose, the Government are sovereign.

Will the Minister explain the meaning of ``in particular'' and indirect movement? Have I completely misunderstood the use of the words ``directly or indirectly'' in relation to transfer in article 8? That may be a point of little significance currently, but I daresay that the Minister's civil servants will do their best to help him on the matter.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

There are several concerns about the provisions being debated. I want to address my remarks to my hon. Friend the Minister, but I note that the hon. and learned Member for Harborough has opposed, in a tortuous manner, something that he and his party supported previously. I cannot but wonder what is the reason behind that. I hope that it is not a shallow one; perhaps there has been a genuine change of heart.

Mr Edward Garnier (Harborough, Conservative)

On a point of order, I cannot hear a word that the hon. Lady is saying. I do not intend to be aggressive, but would the hon. Lady be good enough to speak up?

Mr Frank Cook (Stockton North, Labour)

I am sure that the hon. Lady will take account of that.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

I shall now make the remarks that I wanted to address to my hon. Friend the Minister.

The importance of the ICC is that it will bring individuals to account for the conduct of heinous crimes. The provisions that we are debating focus on war crimes. Among the definitions of war crimes are rape, sexual slavery, extermination, and subjecting people to medical, scientific and biological experiments. Can the Minister envisage a successful ICC prosecution conducted solely on the basis of transfer by an occupying power of some of its civilian population voluntarily? Could that, rather than the scale, nature or activities of the occupation, bring about a successful prosecution per se, without considering context, degree or circumstances, or the impact of such activity on possible resolution of the conflict between the peoples concerned? These are relevant points, and I ask the Minister to address them when he replies.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I look forward to reading the Hansard report of the hon. Lady's speech. Like my hon. and learned Friend the Member for Harborough, I think that the acoustics in the Room debilitate the voices of Members at the back of it. I apologise if I do not pick up on any of the hon. Lady's points, even though they were directed to the Minister. I hope that she forgives my impoliteness.

The Government invited submissions, and I want to use the amendments as a vehicle to explore one made to them by the Board of Deputies of British Jews. I am grateful to Mr. Simon Plosker of the board, to whom I have spoken. The board responded to the consultation. Perhaps I have missed something, or perhaps the document given to me by the Library is imperfect, but it appears to have been omitted from annex A, which lists individuals and organisations that contributed comments on the draft ICC Bill. There may be an easy explanation—perhaps the board's comments were made too late—but I would like clarification of the reason why the board's response was missed. I cannot find reference to what it said either. The Minister will obviously receive inspiration from others.

I propose not a personal view but the view of the board, and I hope to scrutinise the thinking of the Minister on this part of the Bill. Israel has signed up to the statute and no doubt approves the principle behind it, as does everyone else. Even though the country had a different Government during the Rome negotiations, the current violence means that there is even more worry about the use of the ICC as a weapon against Israel. I want to use the amendments to explore the possible politicisation of the ICC.

The board was established in 1760, so it has an authoritative voice in the representation of the Jewish community in Britain. Its views need to be taken into consideration. I know that it has good links with the Foreign and Commonwealth Office. The board seeks the well-being of Jews throughout the world, and it has an international division to work on that aim, as I am sure that the Minister is aware.

When my hon. and learned Friend the Member for Harborough moved the amendment, he said that the statute no doubt had its origins and foundations in the Nuremburg trials, which brought the Nazi war criminals to justice for their part in the genocide of more than 6 million Jews in Europe. The board has highlighted some fears about the nature of the ICC. Its concerns are our concerns, so I look to the Minister to allay them and speak the mind of the Government.

The board's chief concern is the possible politicisation of the ICC. That goes back to the Rome conference, when Egypt and Syria moved to include certain words in the statute. I am sure that the Minister is familiar with them. I refer to the words:

``The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory''.

Under the jurisdiction of the ICC, such an act would become a war crime. No country was mentioned by name when that was proposed, but there was great feeling about it. I am sure that the Minister will be able to tell us, from the reports of our negotiators at the time, that that was a thinly veiled attack on the sovereignty of the state of Israel and an attempt to give the ICC jurisdiction over the then Israeli Government's settlement policy. It is only fair to that that must have been one of the prime motivators that caused Israel not to follow where others had led; it must have felt that a concerted attack was being made on its actions, whether justified or not. I do not seek to justify or criticise, but I believe that if any country should have signed or subscribed to the statute, it should have been Israel, especially in view of the history of the Jewish people, most recently during the past century in Europe.

If the ICC becomes politicised, its very legitimacy will be called into question. If we are to have a court that people will look to; if we are to have a court that will attract legitimacy and command respect from all parts of the world, whether civilised or not; if we are to create something that will eventually serve the entire world, it must be seen to be a non-political body and not prone to politicisation. I am sure that there is no difference between the Government and the Opposition on that.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

Absolutely.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I am pleased to hear that the Minister agrees.What safeguards are there to reassure me that that element of politicisation will not occur?

In its submission, the board expressed concern that the court could become a political tool to be used by states in dispute. I rely on the context of the Israeli-Palestinian dialogue in saying that it was theoretically possible for either side to demand the trial of national leaders in the event of an incident that led to violence or death. The board expressed great fear that that would result in a tit-for-tat scenario, which would discredit the court and damage the prospects for peaceful negotiations between two parties—to all intents and purposes, a truth and conciliation process.

We may want to discuss that later, because I am sure that both sides want to make sure that we are not creating a monster by alienating states and preventing a truth and reconciliation process. As with Pepper v. Hart, I believe that if the Committee can reach an understanding that the Bill would not exclude the sort of truth and reconciliation process that took place in South Africa, it would be of comfort not only to the Opposition, but to the Government. We do not want to damage the prospect of peaceful negotiations between protagonists.

The board concluded, fairly, that it was broadly in favour of the ICC and the principles behind it; that is exactly our position. However, concern permeates the board's submission—and many of the Opposition's deliberations—that a political agenda will be pursued through the court. The amendments are a vehicle through which we seek the Minister's views.

As recently as yesterday, our minds were focused on the politicisation of courts. The Minister is doubtless a great reader of The Times, and we have already spoken about Scotland, but the newspaper contains a report about Hans Koechler, an expert on international law who acted as a United Nations observer at the Lockerbie trial. He condemned the proceedings of that trial as inconsistent, irrational and politically motivated, if the report by Gillian Harris, the Scotland correspondent for The Times, is to be believed. I have no reason to doubt the report, because those words were echoed by Mr. Koechler when speaking at a conference at the Arab League headquarters in Cairo.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

He is a professor of philosophy.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

The Solicitor-General is quite right, but Mr. Koechler was also one of five UN observers at the trial. He said:

``You cannot come out with a verdict of guilty for one and innocent for the other when they were both being tried with the same evidence. In my opinion there seemed to be considerable political influence on the judges and the verdict.''

That Professor Koechler is a professor of philosophy is irrelevant; he is in a position to make an announcement on the world stage about a court that we spent much time and effort setting up. It is to the Government's credit that they did so. None the less, those were Professor Koechler's remarks.

I am also keen to cite the remarks of the spokesman for the Crown Office in Edinburgh who, according The Times report said that Professor Koechler's views were based on a

``complete misunderstanding of the function and independence of the judiciary.''

He added:

``In particular, he misunderstands that in Scotland, as in other English-speaking systems, criminal proceedings are adversarial, that is, involving a contest between prosecution and defence rather than an inquiry carried out by judges.''

The spokesman for the Crown Office is to be congratulated on—

Mr Edward Garnier (Harborough, Conservative)

Not being a professor of philosophy.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

Certainly on that, but also on his robust defence of the system that we set up. Regardless of the rights and wrongs of the matter, the trial has caused political fallout and there is a disagreement on the particular trial process used. That should ring alarm bells. We established that court in good faith, in a spirit of fairness and after much negotiation, to bring to trial two people who were allegedly responsible for a heinous and terrible crime. Although we know that there was no political aspect to the court's deliberations, on the world stage it was suspected of being politicised.

Mr Des Browne (Kilmarnock & Loudoun, Labour)

As an experienced parliamentarian, the hon. Lady will know that parliamentarians regularly seek to politicise court decisions and make observations about them, often without any knowledge or understanding of the procedures or the courts. That is not unique to the international stage—it happens domestically. People suggest that a decision that has been properly arrived at by a court is political. However, the important thing is that the ICC offers an opportunity to establish a jurisdiction that will, over time, stand alone and above politics.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I cannot disagree with the hon. Gentleman's remarks, other than to say that that is not the point that I am seeking to make. The Board of Deputies of British Jews raised concerns about the politicisation both of the negotiation process, which led Israel not to sign, and of other countries' subsequent suggestions. In the example that I have described, an observer says that a process in which we have been involved is politicised.

I had hoped to use the amendments to find out what the Minister thinks about the potential dangers surrounding an international court comprised of 18 judges drawn from a wide variety of countries. It is not unreasonable to assume that at some stage those judges might be attacked for politicisation, real or perceived. Therefore, it would have been wrong of me not to table the amendments in order to draw out the Minister. I do not want to take up any more time, because I should like to make some brief comments on clause stand part if you, Mr. Cook, in your wisdom, will allow it. I look forward to hearing the Minister's response to my points and those of my hon. and learned Friend the Member for Harborough.

Mr Crispin Blunt (Reigate, Conservative)

The debate is important, but I do not want to go over ground already covered by my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham. However, I should like to pick up on the points made by the hon. Member for Liverpool, Riverside (Mrs. Ellman), in so far as I was able to grasp them. I think that she was referring to the right of return of Palestinians in the occupied territories.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

Rather than referring to the matter that has just been mentioned, I was asking whether, in principle, the Minister considers that a successful prosecution could follow a single act in relation to an occupying power voluntarily bringing some of its population into an area, without any reference to what they might do. I was seeking the Minister's view in the context of the horrendous nature of the offences that are to be heard under the International Criminal Court such as extermination, use of biological means and scientific experiments on people.

Mr Crispin Blunt (Reigate, Conservative)

I am grateful for that clarification. It has made plain the importance of the debate engendered by the amendment, particularly if we look at the international cases that will now be affected by article 8.2(b)(viii). I should like the Minister's view on whether there is a potential problem with the clause in the future settlement of current disputes. If one looks at many of today's most agonised international disputes, one can see that part of the solution might be the movement of population. If that were to be involuntary, it would be wrong and it would remain wrong under the amendment, but if it were voluntary it might be an essential part of a solution. How might that work?

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I do not think that the hon. Gentleman was present when I intervened on the hon. and learned Member for Harborough to point out that both voluntary and involuntary cases are covered by other international treaties that form the basis of the statute.

Mr Crispin Blunt (Reigate, Conservative)

I understand that, but the point is that the statute will give effect to the ICC and that will give teeth, for the first time on a serious international basis, to such provisions. That is important in an historic sense for the United Kingdom in relation to what happened to the islanders of Diego Garcia. Although article 8 cannot be applied retrospectively, there is, for example, at least a prima facie case that the UK was guilty of the enforced transfer of the people from Diego Garcia to release that island for the American air force. Therefore, the UK could be affected.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

If the hon. Gentleman reads article 8, he will find that it refers to

``Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law''.

It goes on to deal with the transfer, directly or otherwise, by the occupying power of parts of its civilian population. We are not in a state of armed conflict with Diego Garcia.

Mr Crispin Blunt (Reigate, Conservative)

The point is that the people who used to live on Diego Garcia are in dispute with the United Kingdom. However, we are going to have to rely on the ICC's definition of what conflict is. The few inhabitants of Diego Garcia would have been poorly advised had they decided to fight the forces of the UK in the 1960s. Many issues will arise if, because of enforced deportation, or a similar situation in the future, they have to take to arms to trigger the intervention of the ICC, and will not otherwise be protected.

The application and success of the ICC will depend on the vast majority of states becoming party to it. Let us consider Turkey, which has not signed up to it. It is in dispute with Cyprus over the Turkish population that has been imposed on the northern part of Cyprus. Let us consider China and Tibet. China is not a signatory to the statute.

Mr Mike Gapes (Ilford South, Labour/Co-operative)

The matters to which the hon. Gentleman referred, such as the dispute in Cyprus, date back at least 25 years. They are in the past and have no relevance to the Bill.

Mr Crispin Blunt (Reigate, Conservative)

With respect to the hon. Gentleman, yes they are relevant, because the disputes are continuing. At some stage, a deal may be brokered about Cyprus that might cause the movement, for example, of the Greek population back to Varosha near Famagusta. In discussions between the two sides in the Cyprus conflict, heads of agreement have almost been reached about a bizonal state. That would mean the swapping of property. A solution would have to be found so that people could live with each other within zones.

That is what has happened in Bosnia, where significant population transfers have taken place. In 1992, the population was very mixed and 30 per cent. of marriages were mixed, but people have now entered separate enclaves. Those whose houses are in the wrong ethnic area have been doing deals with people in other areas to swap property. A state and its people might want to come to an agreement about that. That solution could apply in Israel and the occupied territories.

I accept that article 8.2(b)(viii) has previously been part of international law. However, the ICC will have real teeth if states sign up to it and to the power to bring leaders and others to justice under that article. I am concerned that that is why several important states that are key to the ICC's success and to the success of future settlements of long-term disputes have not signed up to it. It is most regrettable that China, Turkey and Azerbaijan—because of its dispute with Armenia—are not signatories. Will the Minister consider the effect that the translation into international law of paragraph 2(b)(viii), unamended, has had on the attitude of states that would otherwise be party to the agreement? The hon. Member for Liverpool, Riverside made it clear that she was not citing the example of Israel, but I think that Israel made its position clear.

Mrs Louise Ellman (Liverpool, Riverside, Labour/Co-operative)

My clarification was about Palestinian refugees. I did not state that I was not referring to Israel. The situation in Israel with regard to the Palestinians and the settlement at some point is related to that.

Mr Crispin Blunt (Reigate, Conservative)

I am grateful to the hon. Lady.

My essential point is that, quite properly, an agreement has been signed in which the words in article 8 appear. As the Minister made clear on Second Reading, the difference is the importance of the institution that is being established. There will now be an institution with teeth, which can really work and bring to justice people from the states that are party to it. Consequently, greater thought must be given to the sort of proposal made in the amendment tabled by my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham. If the effect of the unamended statute has been that many states have not signed up, that is much to be regretted, because it reduces the effectiveness of the ICC. Will the Minister address that point?

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I shall start by responding to several of the detailed points that have been raised. I agree with the hon. and learned Member for Harborough, who said that the court is to be set up internationally by statute, that we cannot change that statute because we have agreed to it, that we are trying to align our position so that we can be signatories to it, and that we are therefore somewhat hamstrung. It is not as if we were starting out, through primary legislation, to construct our own court here in Britain. That was a fair way of putting it. The question then is whether our deliberations and decisions will change what we do in Britain anyway. We would argue that it will not and cannot, and that any change would have to come before Parliament in any event. That is the reassurance that we shall try to give to Opposition Members.

Many of the comments by the hon. Member for Reigate suggested that he overestimates the scope of the court. This is not the Bill to implement the Geneva convention. To put it crudely, it is not the Bill to ban war and resolve all world conflicts. It is quite limited in its scope. We should understand that we are setting up a court, through international agreement, to try people for war crimes, crimes against humanity and genocide, and we have to define what those crimes are. The court is not retrospective—it is intended not to sort out past and current conflicts, but to deal with people who are brought before it in future.

The hon. and learned Member for Harborough asked me, in a rather grandiloquent manner, what the sovereign's view was. I can tell him the Government's view: we have no problem at all with article 8.2(b)(viii) of the statute, which concerns the transfer of the civilian population of an occupying power into the territory that it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or without the territory. That is not a new concept; it appears in the context of other international treaties. Article 49 of the fourth Geneva convention of 1949 prohibits transfers by an occupying power of its civilian population into occupied territory, and the deportation or transfer of the population of the occupied territory. We have been party to that convention without any difficulty for 40 years, and there should be no going back on that now.

We are also party to the first additional protocol to the Geneva convention, dating from 1997, of which article 85.4(a) uses almost identical language to that of the Rome statute in recognising such transfers to be a grave breach of the Geneva convention. We have prayed in aid the Geneva Conventions (Amendment) Act 1995, which was passed by the previous Government with our support; there was unanimity about that. When that Government did good things, as they did on a few occasions, it was right to support them.

The British courts already have universal jurisdiction over such crimes, whenever and wherever they are committed. It would be pretty odd if we now decided to deny to the International Criminal Court jurisdiction that our courts already have. That position would be completely incongruous, which is why I do not think that the amendment is necessary. The crime, like those in the statute, was further elaborated in the ``Elements of Crimes'' documents prepared by the preparatory commission for the ICC in June last year. The elements of article 8.2(b)(viii), which were the subject of extensive negotiation, do not include the notion that only forced transfers are illegal. Those elements of crimes were adopted by consensus between the states participating in the preparatory commission—a consensus that included the United Kingdom. It also included Israel and the United States of America, which was welcomed. The main point of building the institution is to get the court off the ground. I hope that it was a slip of the tongue rather than anything else when the hon. Members for Chesham and Amersham and for Reigate stated that Israel had not signed the statute. Israel has signed it.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I said that they had signed it.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

With respect, check Hansard. I wrote down the words when they were spoken. It is important to make the distinction between signing and ratifying. Both America and Israel have signed but not yet ratified the statute, and so are not working within its scope.

The hon. Member for Reigate asked me about the difference between sub-paragraphs (a) and (b) of article 8.2, and why they were separated. Sub-paragraph (a) is specific to

``Grave breaches of the Geneva Conventions''

and applies only to

``persons or property protected under the provisions of the relevant Geneva Convention''.

Those could be prisoners of war, the sick and wounded and protected civilians. According to sub-paragraph (b), such crimes are provided for under other conventions, by the Hague regulations and by additional protocols to those conventions; the victims need not necessarily be persons protected under this convention. The hon. Gentleman also asked what ``in particular'' meant. It does not prohibit prosecution of individual acts, but provides guidance to the prosecutors as to where they should concentrate their efforts.

I shall now respond to the points raised by my hon. Friend the Member for Liverpool, Riverside. Under article 53 of the Rome statute, prosecutors deciding whether to carry out an investigation must consider the seriousness of the information before them, and the gravity of the alleged crime. They also have the discretion not to proceed with the prosecution where doing so would not be in the interests of justice.

This is not about setting up a political assembly, it is about a court and the matter of justice under the rule of law. The Security Council can therefore also play a role. If the situation represents a threat to international security or is not in the interests of an on-going dialogue for peace and security—a point that my hon. Friend raised—the Security Council may issue a request to the International Criminal Court to suspend an investigation. For example, that might be appropriate if delicate peace negotiations were taking place. It would be inappropriate to proceed then, and might be better to move forward in other forums to develop a peace process. If the prosecutors decide to initiate an investigation, they must first receive the approval of a pre-trial chamber of judges, which is a safeguard against a politically motivated prosecution.

We are well aware of the Israeli concerns about the provisions in the statute. However, those concerns have been aired and discussed, and in spite of them, Israel signed the statute last December; it knew what it was doing. The Committee is debating UK legislation, so I see no reason not to implement the provisions of the Rome statute, to which Britain has been signed up to for some years. It would make no material difference. The crimes mentioned are already crimes defined under British law.

The hon. Member for Chesham and Amersham asked why the Board of Deputies of British Jews had been left off the list of respondents to the consultation. The report on the responses to the draft legislation stated:

``The Government received a total of 45 responses giving comments on the draft Bill. A list of those who responded is set out in Annex A . . . Several other people sent in views on the ICC itself.''

They commented not on the Bill but on the statute, so there was no intention to insult or snub the Board of Deputies of British Jews. Some simply chose to comment on our Bill, and others on the statute. On 22 January, the Department sent a long reply to Mr. Simon Plosker's letter of October. It stated:

``The ICC is designed with safeguards in place against the risk of politicisation. It is the policy of the UK Government to see the creation of an independent Court—free from political interference and staffed with highly qualified, highly professional independent staff.''

That is absolutely right, and I hope that the hon. Member for Chesham and Amersham, and the members of the Board of Deputies of British Jews, are reassured that we took their concerns seriously. Indeed, the Bill as drafted allows for those concerns. Israel has already signed up to the Rome statute, and we can be assured that it knows what it is doing. It is only right that Israel has signed up, and we want it to ratify, but we do not believe that the amendments are necessary.

Mr Crispin Blunt (Reigate, Conservative)

It is important, both for Israel and for the United States, that Ministers should not rely on signature of the statute, particularly given Israel's declaration upon signature, which is pretty robust stuff. The declaration states:

``At the 1998 Rome conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool.''

It is surely unlikely, therefore, that the state of Israel is going to ratify the treaty. Of course, given the wretched history of the 20th century, Israel has been a leading proponent of a court of some type.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

As I have said, the provision was the subject of much negotiation at the Rome conference and during the entire drafting period. I can reassure hon. Members that there is no problem. In a sense, it is up to Israel to sort out its policies in respect of ratifying now. Rather than second-guessing Israel, we should get on and sort out our own ratification. I should point out to the hon. Member for Reigate that Israel's declaration upon signature also states:

``Being an active consistent supporter of the concept of an International Criminal Court, and its realization in the form of the Rome Statute, the Government of the State of Israel is proud to thus express its acknowledgement of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity.''

The relevant details were discussed at great length before the signature. They have been taken into account in the statute, and the purpose outlined in clause 1 simply reflects that. The amendments are therefore superfluous.

Mr Edward Garnier (Harborough, Conservative)

I am grateful to my hon. Friends the Members for Chesham and Amersham and for Reigate for their contributions to this debate, and I am also grateful to the hon. Members for Kilmarnock and Loudoun and for Riverside for theirs. The point of Standing Committees, which is sometimes forgotten, is to debate. Whether we agree with particular a contribution is irrelevant; what is important is to participate. On that basis, I am equally grateful to the Minister for his full response to the points that were raised.

I regret to say that Labour Members often titter when reference is made to the sovereign. They doubtless thought that I was talking about the Queen, but in fact I was talking about what is, under our constitutional conventions, the Crown in Parliament, which is represented by the Government and the Prime Minister.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I give in.

Mr Edward Garnier (Harborough, Conservative)

It is charming to hear the Minister giving in. I hope that he will be giving in both in Parliament and in Leeds over the next few weeks. He is due for a rest, and the Conservatives will be happy to give it to him. [Interruption.] I hope that the Minister will remain serious, because I hope to keep the debate on an intelligent level as it reaches its conclusion.

The whole point of my amendments, and of new clause 6, was to invite the Government to explain themselves, and to an extent, they have done so. However, I caution the Minister against the excessive use of hyperbole. Expansive phrases and high-minded desires for the ICC are one thing, but behind the ICC is a clear and unvarnished, but nevertheless legitimate, use of force. Unless we understand that, we understand very little. International jurisdiction is an interesting concept, but it should not be allowed to mislead us. The Committee will be glad to hear that I shall not press my amendments or the new clause to a Division. However, I shall carefully read the Minister's remarks when I have the chance to examine the record. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 37, in page 1, line 10, at end, insert:

`other than crimes arising out of amendments to Articles 5, 6, 7 and 8 of the ICC Statute'.—[Mr. Blunt.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.

Mr Frank Cook (Stockton North, Labour)

We have spent three hours and 37 minutes on the clause—a tour de force around the houses and back again. The hon. Member for Chesham and Amersham has indicated that she would like a discussion on clause stand part, and has formally indicated that she wants to discuss points raised on Second Reading and in the other place. I am not minded to rehearse Second Reading, nor do I feel that points from the other place need to be recapitulated. If any comments are made, they must be brief and new. If I detect any points being raised that have already been covered in today's lengthy exchanges, I shall bring the debate to an abrupt halt. Furthermore, I shall probably feel compelled to remember this debate in our future proceedings.

Question proposed, That the clause stand part of the Bill.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I feel quite intimidated by your words, Mr. Cook.

Mr Frank Cook (Stockton North, Labour)

Good.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

You may say that, but I should like to raise some matters on clause stand part, because clause 1 is the foundation stone of the legislation. As you rightly said, Mr. Cook, we have spent some time discussing the amendments to clause 1, but, because it is the substantial and defining clause for the remainder of the legislation, it was right to do so. Clause 1 defines the statute, which is the initiating document, and some of today's debates have already shown that there are imperfections, because of the nature of the document and the negotiation process. My amendments might have been imperfect, but the Minister makes my point for me, because in the amendment paper, we can see that he has already tabled an amendment—No. 27—to change clause 84 and delete a whole subsection. The continuing dialogue on the problems in the legislation is important.

In our informal discussions, I promised you, Mr. Cook, that I would raise a matter that came up in the Second Reading debates both in this House and in the other place. I hope that this is a suitable time to raise an inconsistency that the Minister might be able to clarify. On Second Reading, my right hon. Friend the Member for Horsham (Mr. Maude), the shadow Foreign Secretary, said:

``I think I can take it from what the Foreign Secretary says that he proposes that the Government will not enter any declarations.''

The Foreign Secretary said:

``We have none in mind.''

My right hon. Friend replied:

``We can take that as a definitive statement that the Government expect the Rome statute to remain without reservations, which is effectively what declarations are.''—[Official Report, 3 April 2001; Vol. 366, c. 229.]

On this subject in the other place, the Attorney-General, Lord Williams of Mostyn, said:

``However, we would expect to make a small number of interpretative statements of the Rome Statute.''—[Official Report, House of Lords, 8 February 2001; Vol. 621, c. 1272.]

That is at the heart of clause 1.

My questions are simple. Those statements apparently conflict—although I am sure that the Minister will have a useful answer—but when is an interpretative statement a declaration or reservation? What exactly did the Foreign Secretary and Attorney-General mean? If we are to have interpretative statements on the Rome statute, why can we not consider them now, in connection with the Bill, because it deals with the Rome statute as defined in clause 1? If those statements are made in future, what legal status will they have? I am sorry if this is a case of deja vu of the proces-verbaux, but there appear to be two conflicting statements, one from each House, about the heart of the clause. I merely ask the Minister to clarify those for the Committee.

Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)

I am a little surprised, because I do not believe that there is any essential contradiction. In a sense, clause 1 simply spells out the fact that the Bill connects us to the statute, and I return to the comments made by the hon. and learned Member for Harborough. We are trying to define the relationship between the Bill and the statute. We cannot go back to rake over and unilaterally rewrite the Rome statute, which has been agreed internationally. That is not the purpose of the Bill; the purpose is to sign up to it.

The hon. Lady mentioned another amendment. She might know that amendment No. 27 is simply an amendment concerning privilege, which will remove the provision allowing for privilege that is inserted, as a regular constitutional arrangement, into all Bills originating from the House of Lords. It does not concern substantive policy questions. The hon. Lady has already tabled new clause 5, which deals with reservations and declarations, and I suggest that we have a full debate on such matters when we discuss that.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Mr Tony McNulty (Assistant Whip (funded by HM Treasury); Harrow East, Labour)

I beg to move, That further consideration of the Bill be now adjourned. In doing so I wish you, Mr. Cook, and all present—except, of course, the Liberals, who could not be bothered to turn up—a happy Easter, a happy recess or whatever people want to call it.

Question put and agreed to.

Adjourned accordingly at Eleven minutes past Five o'clock till Tuesday 24 April at half-past Ten o'clock.