Clause 2 - Request for arrest and surrender
International Criminal Court Bill [Lords]
2:30 pm
Mr Gerald Howarth (Aldershot, Conservative)
In the spirit in which you have invited us to continue, Mr. Cook, let me say that on Tuesday the Minister was very good to acknowledge that my hon. Friend the Member for Reigate had raised several important issues. He recognises that this is an extremely important Bill.
We are particularly concerned because of the international ramifications for our service men. We are disappointed that the Committee will not have more opportunity to scrutinise the Bill than was laid out in the programme motion. I support the contention advanced by my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) in her remarks about clause 2. I am concerned that there is no reference in the statute of Rome to reconciliation.
The hon. Member for Ilford, South (Mr. Gapes)—I am sorry to see that he is not in his place—referred to Chile before we adjourned this morning. I challenged his interpretation of events that took place there. For the record, I should like to refer to what has happened in Chile subsequently by quoting the former Chilean president, Eduardo Frei, who said in an interview with the Spanish newspaper ABC published on 10 October 1973:
``People cannot imagine in Europe how ruined Chile under Allende was. They don't know what happened . . . The Marxists, with the knowledge and approval of Salvador Allende, had brought into Chile innumerable arsenals of weapons which they kept in private houses, offices, factories, warehouses. The world doesn't know that the Chilean Marxists''—
Mr Frank Cook (Stockton North, Labour)
Order. I am concerned that we might be allowing ourselves to stray into the rights and wrongs of Chilean history. Where opinion is pertinent to truth and reconciliation commissions, I am happy that the Committee should listen to it. However, I do not want to go too far down the road that the hon. Gentleman is exploring. Please be careful.
Mr Gerald Howarth (Aldershot, Conservative)
I appreciate what you are saying, Mr. Cook, but I hope that you will allow me a little latitude to respond to the hon. Member for Ilford, South, because his points were pertinent to a better understanding of why reconciliation is important.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I had some difficulty marshalling my papers during this morning's sitting, but perhaps it would help my hon. Friend to know that one of the 15 truth commissions to which I referred in my earlier argument was the Rettig commission—the national commission on truth and reconciliation in Chile—which dealt with 3,428 cases of people who had disappeared or were killed, tortured to death or kidnapped, of which 2,920 were investigated in depth. The commission's work lasted for nine months and covered a period of 16 and a half years. It is important that such commissions are taken into consideration in the light of the effect on that process that may be made possible by future legislation.
Mr Gerald Howarth (Aldershot, Conservative)
I am grateful to my hon. Friend. She has added considerably to my argument.
There was a belief on one side in Chile that the Marxists under Allende were about to engage in a self-inflicted coup. Others, like the hon. Member for Ilford, South, take a different view.
Ms Oona King (Bethnal Green and Bow, Labour)
I have been trying to follow the logic of the hon. Gentleman's argument. Is he saying that, despite the election of President Allende, it was reasonable for a coup to take place that led deaths, murders, mutilations and torture under the ensuing regime, as is well-documented? I cannot understand his argument.
Mr. Howarth rose—
Mr Frank Cook (Stockton North, Labour)
Order. The Committee is beginning to do exactly what I was trying to prevent. I do not want to rehearse Chilean history and I ask all Committee members to respect my instruction.
Mr Gerald Howarth (Aldershot, Conservative)
I know, Mr. Cook, that if I answered the hon. Lady, you would rightly chastise me. There is a difference of view, but I can tell the hon. Lady that 147 semi-automatic rifles and 10 semi-automatic carbines were found the day afterwards in the President's house—
Mr Frank Cook (Stockton North, Labour)
Order. The hon. Gentleman must confine himself to comments on truth and reconciliation commissions, which the hon. Member for Chesham and Amersham introduced into the debate. He should deal with those, not with Chilean history. He should not discuss the details that were presented in the 3,400 cases, but the principles involved as they relate to the Bill.
Mr Gerald Howarth (Aldershot, Conservative)
I have no intention of going through the individual cases. I was responding to some of the observations made by the hon. Member for Ilford, South, which were not ruled out of order.
I have, however, made my point. Essentially, there is a difference of view, as there was in Chile. It is not up to us in this country to determine how the peoples of a country that has experienced serious conflict should resolve such matters. It was not up to us to interfere in South Africa with the way in which Archbishop Desmond Tutu and the authorities ran the Truth and Reconciliation Commission. It was always part of my contention and that made in another place by my noble Friend Lord Lamont of Lerwick that it was not the job of a freelance Spanish magistrate or the Home Secretary to interfere in the reconciliation process in Chile and the case of former President Pinochet. Arguably, the reconciliation process was impeded rather than advanced by what happened on this side of the Atlantic.
There is an important lesson for us to learn. We must allow nations that have been through a difficult civil war or internal conflict scope to reconcile their different factions. I think that we all accept that it will not be possible to impose solutions from outside. My hon. Friend the Member for Chesham and Amersham referred to Dayton, where an attempt was made at reconciliation. In another case, the British Government urged the Government of Sierra Leone to take into their ranks people guilty of heinous crimes whom they had sought to oppose. All in all, my hon. Friend's observations carry great weight, and I hope that the Minister will be able to respond to our concerns.
My hon. Friend the Member for Reigate told my hon. Friend the Member for Chesham and Amersham, who had referred to Northern Ireland and the question of the IRA and the loyalists, that many of the crimes that the IRA and some of the loyalist groups had committed could be categorised as crimes against humanity as set out in the statute of Rome. Those groups could also be held to be guilty of crimes of genocide. Article 6 states:
``For the purpose of this Statute, `genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group''.
It is perfectly clear to all of us that it would easy for an international court to argue that those on either side who had been responsible for such atrocities could be hauled before it. People in this country would greatly resent that. Some of us bitterly resent the fact that the Government gave an amnesty to some of those in the IRA who were responsible for the most horrendous terrorist crimes and who murdered friends of ours. Nevertheless, we accept that some leeway had to be given in a spirit of reconciliation if peace was to be secured in Northern Ireland.
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
I am happy to discuss Northern Ireland with the hon. Gentleman. I know it well and would be able to debate with him over days and weeks, never mind hours. However, I simply want to ask him how on earth the statute and the Bill relate to Northern Ireland if they are not retrospective, and how his remarks relate to clause 2?
Mr Gerald Howarth (Aldershot, Conservative)
On the latter point, I am surprised that the Minister thinks that my remarks about Northern Ireland do not relate to the clause, nor I do not understand why he did not intervene on my hon. Friend the Member for Chesham and Amersham who was the first to raise the issue. The Minister did not intervene on her to suggest that it was not appropriate.
The point that Conservative Members are making is that there is no reference in the statute to reconciliation and the difficulty that the court might present—[Interruption.] I do not know what the Minister is saying, but if he wants to intervene, I will happily give way.
Mr. Desmond Browne (Kilmarnock and Loudoun) rose—
Mr Des Browne (Kilmarnock and Loudoun, Labour)
I am not practising at the moment—I do only one job at a time, so this is all free.
With respect, the hon. Gentleman draws a false analogy. To understand the statute and the structure of the Bill, one must always have in mind the principle of complementarity. Everyone who has benefited from the early release processes in Northern Ireland under the Conservative Government and under the provisions of the Belfast—or Good Friday—agreement introduced in legislation under the current Government went through the UK system of justice in the Northern Ireland courts and was convicted. None of those cases would have had any relevance to an ICC, even if an ingenious and expensive lawyer had been able to put together a complicated argument claiming that what those involved were alleged to have done or what they did in the future could fall under the jurisdiction of the court. That is not a true analogy, although it is an interesting point.
Mr. Howarth rose—
Mr Frank Cook (Stockton North, Labour)
Order. I repeat once again my appeal for shorter interventions. I must also caution the Committee that we are in danger of doing on the issue of Northern Ireland what I deprecated on the issue of Chile. Let us concentrate our minds on the requirements of a line-by-line scrutiny of the Bill.
Mr Gerald Howarth (Aldershot, Conservative)
I am glad that the hon. Gentleman feels that I made an interesting point. I was not suggesting that the ICC could be responsible for removing authority for Northern Ireland from the United Kingdom, because we have tried such things ourselves. I was saying that I fear that there are circumstances in which that could happen and that we would resent it.
The ICC might require us under clause 2 to hand over nationals of countries that had gone through a process of reconciliation even if, in the view of the United Kingdom Government, a trial could prejudice that process. That, essentially, was my point, and I hope that the Committee understands it.
Mr Crispin Blunt (Reigate, Conservative)
I shall be as brief as I can, but the consequences of the Bill for truth and reconciliation is an extremely important issue. The circumstances in which a truth and reconciliation commission will be set up in any country in future are necessarily hypothetical, but we can look for example to the conflict in Armenia and Azerbaijan, which will, we hope, reach settlement at some stage—very likely after the statute of Rome takes effect. Given that many of the signatories to the statute already have universal jurisdiction, any crimes committed if that conflict continues will be subject to the jurisdiction of those countries.
I expect that the Minister will refer to article 16, which provides that the United Nations Security Council may request a deferral of investigations. However, that depends on none of the permanent members of the Security Council exercising a veto, or on the request for a deferral being made by a majority on the Security Council to allow the national process to take place. All the examples that we have discussed—Northern Ireland, Chile and South Africa—are relevant examples of countries in which the process of truth and reconciliation has taken place. The national process gives the United Nations Security Council an opportunity to make such a requests, but the Government will not be able to rely on the United Nations Security Council to make that request, which means that there is a risk to truth and reconciliation commissions.
The argument can be made—I understand the purpose of the statute to be thus—that our message to dictators around the world is that there will be no way out for leaders who engage in the very serious crimes specified in the statute. There will be no hiding place for such people. We are, in a sense, saying goodbye to truth and reconciliation commissions. We are putting future dictators and people who are guilty of certain crimes in the same position as the Allied powers deliberately put the leaders of Germany in 1943 by demanding unconditional surrender. The leaders of Germany and Japan knew that there would be no negotiated settlement. One can draw that analogy.
If I were a victim of a crime under the statute and my country decided to establish a truth and reconciliation commission, I could decide not to accept that and take my complaint to the ICC. If a crime had been committed against me, I would expect the ICC to investigate it. If my country would not bring the perpetrators of that crime to justice, I, the victim, would expect the ICC to do that for me.
Every country—including, most importantly, the United Kingdom and France, who are likely to be first to sign and ratify the statute, and who have taken a leading role in policing global security since 1945—will have to face up to the great difficulty of reconciling the practical advantages of being able to engage in truth and reconciliation processes, as has been done in numerous cases, with the principled and proper position that, from now on, there will be no hiding places for people who are guilty of the crimes specified in the first part of the statute.
A case can be made for either position: for pragmatism and the way in which we have conducted the world order since 1945, and for the permanent members of the Security Council having a veto; or for the direction in which the statute will take us. I look forward to the Minister's reply because the Government's position is riddled with uneasy and unsustainable compromise. The inconsistency is present even in the statute: articles 27 and 98 are in direct contradiction of each other. One allows immunity, which we shall discuss later, and the other says that there shall be irrelevance of official capacity in bringing people to book for the crimes. In this debate on truth and reconciliation, I am hoping to hear from the Minister whether we are to take a pragmatic approach to diplomacy and the ability of Ministers to make decisions or whether we shall have, as the statute of Rome intends, a more idealistic approach to facing up to the serious crimes that are listed in this statute.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
Earlier, Mr. Cook, when I was unable to get my papers in order, you promised that you would allow me to return to my second point. I thank you for that courtesy, and I shall try to detain the Committee only briefly. It is a technical point that stems from our first day of consideration in Committee. I asked the Minister about the declarations and the phrase ``none in mind''. He said in his response:
``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.''—[Official Report, Standing Committee D, 10 April 2001; c. 64.]
I do not disagree with that. That was not the point I was making, and that is the premise on which I start now.
Clause 2 deals with arrest and surrender. Article 91.1 of the treaty states:
``A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for it in article 87, paragraph 1 (a).''
Article 87.1(a) states:
``The Court shall have the authority to make requests to State Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.
Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.''
That goes to the heart of my point. The statute says that each state party, upon ratification, will designate appropriate channels. On ratification, what will the Minister designate as an ``appropriate channel''? As the statute says, the request may be
``made by any medium capable of delivering a written record''.
Does the Minister intend to use e-mail as a vehicle for the transmission of such a warrant or of papers pertaining to it? If not e-mail, what will he designate on ratification? What will he lay out before us for approval and how will we get that approval? If e-mail is going to be used, what are the security implications—for example, what about tampering? The White House has said that it will no longer take e-mails. It is a simple question but a technical one: what appropriate channels will be designated by the Government under article 87.1(a), and will all that apply to Scotland, or will Scotland have powers to designate its own medium?
I hope that I have been brief in making my genuine request for information, which relates to my original point that we need some form of clarification following ratification, which the Minister did not fully understand when he replied to me on the first day of Committee. I look forward to hearing what he has to say now.
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
It is fair to say that we have had a full and wide-ranging debate. I do not resent that in any way. Further to the intervention of the hon. Member for Reigate, the difficulty with considering Bills in Standing Committee is that, often, we want to debate matters that should really be debated later, and we have to bring some contextual matters forward and debate them earlier. I do not resent that, because we have had a full debate that has enabled us to tease out the real issues and the serious problems. The point raised by the hon. Member for Chesham and Amersham is fair, and I will come to it in a moment.
We must always remember that the purpose of the ICC is not to sort out the past but to put down the marker for the future. That makes it different from truth and reconciliation commissions. I do not want to enter into a debate on truth and reconciliation now, but I should say that there was much that was excellent in the hon. Lady's speech on the subject of truth and reconciliation commissions. There were parts that I disagreed with, but I hope that the fact that she raised the topic in the way that she did has resonance outside the Committee. I would prefer to have a full debate on those matters on the Floor of the House or elsewhere at some point in the future—there may be an opportunity when we are under less pressure.
The work of truth and reconciliation commissions is important. The work on memory and reconciliation being done in Northern Ireland, together what is going on in Chile, Guatemala, Cambodia and South Africa, can contribute massively to amassing experience on which we can build, so I thank the hon. Lady for raising that topic. However, the ICC will not prevent or block future truth and reconciliation commissions. There may be a further debate on the matter when we reach new clause 2, which raises themes that could perhaps be teased out in more detail, but let us look briefly at the example of Sierra Leone. There, a special court that will work alongside the truth and reconciliation commission has been created with international support. The work of the two bodies will be complementary and they will not undermine each other in any way. You guided us away from discussing countries' internal matters, Mr. Cook. That subject, too, could be addressed in connection with new clause 2.
Tribunals are different from the ICC: the ICC is a different animal, a different institution, a different organisation. Tribunals are an international obligation imposed by the United Nations Security Council. They are not directly complementary to the ICC—they have primary jurisdiction. We should bear that in mind. It is important to note that the ICC will deal only with future crimes; therefore, Governments ratifying the statute and their nationals will be fully aware of the possibility of prosecution by the ICC if they commit certain offences. I was asked whether there was any provision in the statute for flexibility. There is. I hope that the very existence of the ICC will deter people from committing war crimes and crimes of genocide. People will know that the court exists, so they will not undertake such activities.
Mr Edward Garnier (Harborough, Conservative)
May I bring us back to some sort of reality and talk about timing? When does the Minister think that the ICC will be up and running? We will be perhaps the 30th country to ratify the treaty, which means that 30 more will have to ratify it, because the court cannot start to operate until 60 have ratified the treaty; and after the 60th country has ratified, at least a year will be needed to get the court up and running. There may well be many administrative and other details to be worked out, for example, the rules of procedure relating to the mechanics of the courts. Am I completely out of the time frame when I say that the beginnings of the court may not emerge for a decade, or are we in fact talking about something that may happen next year?
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
I not sure in what way that is relevant to clause stand part.
I hope that the hon. and learned Member for Harborough (Mr. Garnier) is out of the time frame, because other countries are currently debating the treaty preparatory to ratifying it. We may find that we are not the 30th country to ratify; we could be the 40th, because there are at least 10 others lining up to do so. The establishment of the court could move faster than we envisage, rather than slower. I hope that it does. I am not concerned about that—I am simply trying to get support for the idea.
Mr Crispin Blunt (Reigate, Conservative)
Just before the intervention by my hon. and learned Friend the Member for Harborough, the Minister said that he hoped that the existence of the ICC would prevent crimes from taking place, because it would be up and running and people would be subject to its jurisdiction. I agree that that might be so, but will he elaborate, either now or in the debate on new clause 2, on the consequences that that will have for truth and reconciliation commissions? Will he also explain about the flexibility not to investigate that he implied the ICC had? Can he relate that to the example of a victim who is determined to seek justice and therefore to take a case to the ICC?
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
The crimes that the ICC will prosecute are those for which amnesties are rarely likely to be appropriate. We should start from that premise and remember that the clause deals with convicted criminals. We must keep the process in perspective. The ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty has been proclaimed.
The fact that the ICC will deal only with future crimes means that the Governments ratifying the statute—those include many of the Governments that have truth and reconciliation commissions, such as South Africa, so they are on side in this matter—are fully aware of the possibility of prosecution. The key point is that the nationals of those countries know that it is possible that they will be prosecuted if they commit those crimes—they could be ``got'' by the ICC. That will act as a deterrent.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
If I have understood the Minister—please correct me if I am wrong—he just said that crimes that would be considered within the truth and reconciliation process are not be the sort of crimes for which an amnesty would be given. Earlier, I mentioned 15 TRCs of which I had become aware having read the Centre for Study of Violence and Reconciliation report to see what crimes were covered. In Argentina, for example, there were 8,960 disappeared but an unspecified number of victims of torture or prolonged detention. In other cases, such as Chad, there were victims of torture and arbitrary detention as well as disappeared. Those crimes would be prosecutable under the ICC yet they are crimes for which individuals received an amnesty, so I am not sure that I follow the Minister's argument. Is he saying that these processes are not affected and could carry on despite the ratification of the ICC statute?
Mr Crispin Blunt (Reigate, Conservative)
I draw the Minister's attention to Northern Ireland and to article 7 of the Rome statute, ``Crimes against humanity''. We have let out of prison early people who are guilty of murder under article 7.1(a) and people who are guilty under article 7.1(k) of
``Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.''—
for example, all those guilty of kneecapping in Northern Ireland. It would be nice to believe that kneecapping was going to end the moment we ratified and the ICC came into action, but I fear that that will not happen.
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
I do not understand the logic of the hon. Gentleman's argument. The reasons why people have been released early in Northern Ireland are a separate issue. They would not have been incarcerated in the first place if they had not been through the process and been tried and convicted. That is not what we are talking about.
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
No, I shall try to answer some of the points that have been made first. Northern Ireland is not relevant. The hon. Member for Chesham and Amersham mentioned South Africa, Chile, Argentina and Sierra Leone. It is important to note that many of the countries that have wrestled with crimes of the past are among the strongest supporters of the ICC.
Clause 2 sets out the procedure to be followed when a request is received from the ICC for
``the arrest and surrender of a person alleged to have committed an ICC crime,''
or for that of someone who has already been convicted by the ICC. That is the purpose of the clause. The nature of the crimes is a subject that comes later in the Bill. Let us get to that part of the Bill, rather than try to bring that debate forward—if you agree that that is a fair way to proceed, Mr. Cook.
Question put and agreed to.
Clause 2 ordered to stand part of the Bill.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
On a point of order, Mr. Cook. I rose to my feet before the Question was put to ask the Minister to reply to the specific point to which you so kindly allowed me to return when I could not find my papers. The Minister has completely ignored my question, which is rather unfortunate in an otherwise good-natured discussion. Can you assist me as to when the Minister may be able to give me a response?
Mr John Battle (Minister of State, Foreign & Commonwealth Office; Leeds West, Labour)
Further to that point of order, I shall write to the hon. Lady. I was distracted by an intervention at the time, but I will send her an e-mail. However, I can tell her that the Foreign Office will be the designated channel as it always has been and as was explained in the House of Lords when the matter was debated there. Clause 3 Request for provisional arrest