Clause 51 - Genocide, crimes against humanity and war crimes
International Criminal Court Bill [Lords]
3:45 pm

Mr Crispin Blunt (Reigate, Conservative)

I beg to move amendment No. 53, in page 27, line 11, leave out from first `Kingdom' to end of line 12.

Mr Frank Cook (Stockton North, Labour)

With this it will be convenient to take the following amendments: No. 42, in page 27, line 11, leave out `a United Kingdom resident'.

No. 43, in page 27, line 12, at end insert

`, or

( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in England and Wales.'.

No. 54, in clause 52, page 27, line 29, leave out from first `Kingdom' to end of line 30.

No. 46, in page 27, line 29, leave out `a United Kingdom resident'.

No. 47, in page 27, line 30, at end insert

( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in England and Wales.'.

No. 55, in clause 54, page 28, line 36, leave out from first `Kingdom' to end of line 37.

No. 56, in clause 58, page 30, line 28, leave out from first `Kingdom' to end of line 29.

No. 48, in page 30, line 28, leave out from `or' to end of line 29 and insert—

`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in Northern Ireland.'.

No. 57, in clause 59, page 31, line 4, leave out from first `Kingdom' to end of line 5.

No. 51, in page 31, line 4, leave out from `or' to end of line 5 and insert—

`( ) outside the United Kingdom by a non-UK national who after the alleged offence has been committed is present in the United Kingdom.'.

No. 58, in clause 61, page 32, line 5, leave out from first `Kingdom' to end of line 6.

Mr Crispin Blunt (Reigate, Conservative)

We come on to an important debate about the scope of the jurisdiction of the law of England and Wales, as it will be implemented—in effect, a discussion about universal jurisdiction. In the course of the debate, we shall see the colour of the Government's ethical money.

The right hon. Member for Caithness, Sutherland and Easter Ross and I have tabled two different series of amendments that would widen the Bill's scope in respect of people who would fall within its jurisdiction. My amendments are wider than those of the right hon. Gentleman, who will, I am sure, speak to his own amendments. I apologise to him if he finds that some of his foxes have been shot on a field before he is able to rise to speak.

We must consider the development of the Bill in respect of universal jurisdiction in its various stages. Interestingly, the consultation draft of the Bill would have introduced universal jurisdiction for the crime of genocide. Under clause 46 of that draft Bill, jurisdiction is claimed for the United Kingdom in respect of the crime of genocide, crimes against humanity or war crimes, across the piece. In the Bill that we are discussing, as it applies to genocide, clause 51, and amendment No. 53—

Mr Des Browne (Kilmarnock and Loudoun, Labour)

I notice that the hon. Gentleman speeded up his argument when he drew our attention to the relevant clause in the draft Bill. Perhaps he would revisit that, take me through it slowly and explain how that clause generated universal jurisdiction for the crime of genocide. I do not understand, but I am open to being educated.

Mr Crispin Blunt (Reigate, Conservative)

Clause 45(4) of the draft International Criminal Court Bill states that

``This section applies —

(a) to acts done in England, Wales or Northern Ireland, and

(b) to acts done outside the United Kingdom by United Kingdom nationals or persons subject to UK service jurisdiction.''

However, clause 46(1) states that

``This section applies to any offence under section 45 (genocide, crime against humanity or war crime).''

As far as I understand it, there is no limitation in that.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

The hon. Gentleman has speeded up again.

Mr Crispin Blunt (Reigate, Conservative)

The matter is not central to the arguments that I want to make. The hon. Gentleman will have heard the discussion that has taken place, and he will have noticed the change in the way that the matter has been presented.

If I have misunderstood clause 46 of the draft Bill by interpreting it as giving universal jurisdiction with regard to genocide, it is perhaps understandable, as I think that we already have that universal jurisdiction. The Solicitor-General is shaking his head. However, I think that we do already have it with regard to torture. I am grateful that he is nodding to affirm that.

My inexpert reading of the draft Bill led me to believe that the intention of clause 46 was to give us universal jurisdiction with regard to genocide. Although that might be a mistaken view, I wish to draw the Committee's attention to the difference between the draft Bill's definition of those who fall within the remit of those crimes and that which is contained in the Bill. I have read out the definition of that in clause 45 of the draft Bill. However, the Bill's definition is more inclusive. Clause 51(2) refers to acts committed

``outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.''

The Government have introduced the issue of residency into the Bill, which widens its scope. Why are we going to end up leaving the Bill like that? If the legislation is good enough for citizens of the United Kingdom, and if its purpose is to ensure that people who are guilty of those crimes are unable to escape justice, the United Kingdom's legislation should claim universal jurisdiction, as other countries' legislation claims. That is the purpose of my amendments.

The issues of residency and presence relate also to the amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

This is an important debate. The hon. Gentleman is going to argue that the English courts—rather than the United Kingdom courts—should have universal jurisdiction over all those crimes. He must explain why he would want to do that, when it would manifestly undermine the international court that is being established.

The other part of the Bill is more important. It creates universal jurisdiction—at least with regard to the state parties—in an international court that brings people to international justice, rather than to the domestic justice of a single country that decides to bring a prosecution on behalf of the whole world.

Mr Crispin Blunt (Reigate, Conservative)

It is interesting to hear the arguments of the hon. Gentleman—who is, I understand, a Scottish lawyer—in favour of limiting the jurisdiction of the whole process of the law that we are applying to such serious crimes. He is advocating a position in which people guilty of those crimes will find it easier to escape justice.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

That is not true.

Mr Crispin Blunt (Reigate, Conservative)

But it is true, and I will explain why.

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

It is not true at all, because we are not saying that Britain will use the court to try everybody accused of those crimes. However, if a person were accused of those crimes, and their own country was unwilling or unable to try them, we would return them to the ICC and they would be tried there, appropriately, rather than the UK doing the job for the whole world. Surely that is the purpose of building an ICC as an international institution.

Mr Crispin Blunt (Reigate, Conservative)

There are two problems with the Minister's arguments. The first is technical and relates to the detail of the extradition treaties to which we are referring. As I understand it, and on the basis of the advice being tendered by Michael Birnbaum and Peter Carter to Amnesty International and other organisations, there is a lacuna in the law on extradition treaties. That is not the case with non-treaty bases of extradition, but extradition treaties that we have with different countries—including our most important ally, the United States—are not fireproof. We would have to change all those treaties, by agreement with states that might not necessarily be party to the statute, for the Minister's position to be sustained. That is a technical flaw in the Minister's argument.

Secondly, the Minister's position is strange. Despite having stated throughout our discussions what the intention is, he now adduces arguments saying that it is not suitable for the UK to put the criminals whom we are discussing on trial in this country if the ICC is unwilling or unable to do so.

In putting the legislation in place, we will have to be prepared for the ICC to go any one of three ways. First, it could work in the way in which we wish it to. In those circumstances, we would not want to exercise our jurisdiction, if we claimed it by changing the legislation to include my amendments. Everything would pass properly to the ICC, which would work in exactly the same way as the British courts.

We have discussed at length the possibility of the ICC becoming the tool of people who seek to advance the barriers and definitions of laws in ways in which we would find very uncomfortable, given the UK's previous and current role in global security.

There is also a third option: the ICC might become completely useless. Its institutions might not work properly and the prosecutor chosen might be unwilling or unable to bring people to justice. With the greatest respect to everyone involved in the legal profession, the wheels of international jurisprudence wind terribly, terribly slowly. The ICC might be no different to any other international court and take for ever to get into action, while defendants find out how to use its rules and escape justice. Are Labour Members really saying that, in those circumstances, we in the UK—our courts, our justice system, our country that is signing up—are somehow incapable of exercising fair jurisdiction over people who have committed such crimes?

Mr Des Browne (Kilmarnock and Loudoun, Labour)

There is a fourth option, which is that other countries might follow the example that the hon. Gentleman is presently giving. Other countries that do not have our standards or history of fairness could adopt universal jurisdiction. What protection would there be for our armed forces, who might find themselves subject to the universal jurisdiction of just the sort of country that the hon. Gentleman and his colleagues have, for weeks now, been describing as a great threat to our forces' ordinary activities?

Mr Crispin Blunt (Reigate, Conservative)

I have news for the hon. Gentleman. That has already happened. Countries are already claiming universal jurisdiction. As I understand it—the Minister will correct me if I am wrong—29 states have so far ratified the statute. Only four do not, in one respect or another, claim universal jurisdiction over crimes covered by the statute.

I am going to have a bit of fun with this. One of the four countries not to have claimed universal jurisdiction is San Marino. The other three are Gabon, the Marshall Islands and Senegal. Which camp does the hon. Gentleman expect the United Kingdom to sit in? With Senegal, San Marino, the Marshall Islands and Gabon or with Belgium, Canada, New Zealand, Switzerland, Germany, Argentina, Austria, Belize, Botswana, Dominica, Fiji, Finland, France, Ghana, Iceland, Italy, Lesotho, Luxembourg, Mali, Norway, Sierra Leone, South Africa, Spain, Tajikistan, Trinidad and Tobago and Venezuela? Which side of the argument does the hon. Gentleman want the UK to be on? He has put forward the extraordinary case that he expects us to be on the side of people who will let those criminals escape justice.

I shall examine the detail of why, at this stage, the Bill is flawed on the issue of residence. In a submission published by Amnesty International, Michael Birnbaum QC gives a clear example of the difficulties with the Bill's definition of residence. The amendments tabled by the right hon. Member for Caithness, Sutherland and Easter Ross would deal with the issue of residence by amending the wording of the Bill to

``present in England and Wales''.

Under the right hon. Gentleman's amendments, if one of those criminals were to enter the UK he would fall within our jurisdiction by his presence. That could not happen if we do not amend the Bill.

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

What happens when one of those people arrives? I hope that the hon. Gentleman is not under the illusion that such a person would escape justice, because that is not so. The issue is whether that person would be tried in a British court or handed over to the ICC as a non-British national. Either way, he would face trial.

Mr Crispin Blunt (Reigate, Conservative)

The Minister cannot guarantee that. It is a matter for the Attorney-General to decide whether prosecution should take place in the UK.

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

And the ICC.

Mr Crispin Blunt (Reigate, Conservative)

The Minister cannot guarantee any more than I can that the prosecutor or the pre-trial chamber in the ICC would bring those people to justice.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

Will the hon. Gentleman give way?

Mr Crispin Blunt (Reigate, Conservative)

No, not for the moment.

What if UK citizens are the victims of crimes that fall within articles 5, 6, 7 and 8 of the statute? Their global contribution through Voluntary Service Overseas and other non-governmental organisations is second to none. If we want justice for British victims, but the ICC is not prepared to provide it, why should we limit our jurisdiction? That is the question that the Minister must answer because, as it stands, the Bill limits our jurisdiction and is flawed on the issue of residence.

Before the Minister intervened, I was dealing with the amendment tabled by the right hon. Member for Caithness, Sutherland and Easter Ross.

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

Will the hon. Gentleman give way?

Mr Crispin Blunt (Reigate, Conservative)

If the Minister will forgive me, let me complete my argument on residence and then I shall let him intervene.

If the wording were amended from ``resident'' to

``present in England and Wales'',

that would deal with the legal nightmare of defining whether someone is a UK resident. There is a heap of different definitions of residency under the law in this country. We would give lawyers a field day by leaving the term ``United Kingdom resident'' in the Bill.

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

That is a serious issue, and I am grateful to the hon. Gentleman for raising it. However, I want to know where he is coming from. His hon. Friend the Member for Chesham and Amersham, who normally speaks for the Opposition on such matters, is absent this afternoon. I assume that the Conservative party is at one on the Bill, but varying degrees of reservation have been expressed about the principle of the ICC. If the Bill did not proceed through the House of Commons, would the Conservative party put a commitment in its manifesto unilaterally to create a court to try people for crimes against humanity? Would the Conservative party establish universal jurisdiction without the support of anyone else in the world? Is that the Conservative party's position?

Mr Crispin Blunt (Reigate, Conservative)

Happily, I am not responsible for the manifesto, so I am not in a position to answer the Minister's questions. However, it is interesting how defensive he has become. He suddenly seems to understand the limitations of the Bill, which he has justified in the broadest possible ideological and idealistic terms—and I have every sympathy with those arguments. During the Committee's proceedings, we have highlighted practical problems with the statute as it stands and we have tried, and so far failed, to include in the Bill some protection for the United Kingdom if the ICC goes sour, which none of us hope it does. However, when push comes to shove and the Government are presented with the opportunity to ensure that the United Kingdom can have jurisdiction to try people who are guilty of such crimes—wherever they were committed and whoever committed them—the Minister declines to take it.

I do not want the Bill to be passed in its current form: I want the amendments that I have tabled to be accepted. That would enable Parliament to have a say over changes to the Bill, and to make a clear declaration on how the United Kingdom expects it to work.

I also want the Bill to have universal jurisdiction. If it is good enough for citizens of the United Kingdom and for the laws to which we will subject our own armed forces, frankly it is good enough for everyone else as well. That argument has been accepted by the Governments of New Zealand, Canada, Belgium, Switzerland and Germany—and, indeed, by that of the United Kingdom in respect of torture.

Mr David Lammy (Tottenham, Labour)

I want to find out exactly where the hon. Gentleman is coming from. Simplistically speaking, there are three positions on universal jurisdiction, which he has confused. The honourable position on universal jurisdiction appeals to the common good regarding crimes against humanity. It says, in effect, that someone in England should be tried by us, regardless of whether they are a national. I suspect that the hon. Gentleman has no sympathy with that. The second position, which comes from the right, is a superior position that is consistent with much of what we have heard from Conservative Members.

Mr Crispin Blunt (Reigate, Conservative)

On a point of order, Mr. Cook. The hon. Gentleman's opening remarks suggested that he does not believe what I have been saying, and I ask him to withdraw them.

Mr Frank Cook (Stockton North, Labour)

I am somewhat puzzled by that point of order. Will Mr. Lammy clarify what he said that may have caused offence? I have been listening intently, but I shall listen even more intently this time.

Mr David Lammy (Tottenham, Labour)

I suggested confusion, not some ulterior motive.

The second, superior, position originates from the imperial viewpoint that this country is best. The right position is an internationalist one based on the concept that such people should be tried in the international arena for all the world to see. I believe that the hon. Gentleman misses that point.

Mr Crispin Blunt (Reigate, Conservative)

I hope that my point of order was mistaken, but I thought that the hon. Gentleman's first point implied that I do not believe the arguments that I am adducing in support of universal jurisdiction. I am sure that on reflection he would not wish to suggest that I would do anything other than believe that the amendments should be passed and that there should be universal jurisdiction in respect of these crimes.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

I do not want an argumentative debate with the hon. Gentleman, but I want to understand exactly what he is arguing for. He seems to be arguing for universal jurisdiction in respect of these offences, no matter where the alleged perpetrator is. There would be no qualification by residence or presence in the United Kingdom. Regardless of where the person concerned lived in the world, we would have jurisdiction. Is that the hon. Gentleman's position?

Mr Crispin Blunt (Reigate, Conservative)

That is my position, and it is the effect of my amendment. If the hon. Gentleman thinks that that is something new, he should consult section 134 of the Criminal Justice Act 1988, on torture, which states:

``A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.''

The hon. Gentleman must therefore understand that the principle of universal jurisdiction has already been conceded. If we do not accept it, we will be in the absurd position of being able to claim jurisdiction over someone guilty of torture, but not jurisdiction over someone guilty of murder.

If General Pinochet had fallen into our hands in a manner that was outside the Bill's definition but within the remit of British justice, we could have tried him for torture of his alleged victims. However, if he had murdered rather than tortured them—if he had put them to sleep as one puts to sleep a dog at the end of its life—we would have been unable to try him. That is manifestly absurd. Torture is but a tiny part of the crimes of which people are guilty under articles 5 to 8. Do we not want consistency in our legislation?

Mr Mark Hendrick (Preston, Labour)

I entirely agree with the hon. Gentleman's analysis, but not necessarily with his conclusions. If he and his party have such concern for universal jurisdiction, why in 18 years of Conservative Government did they not bring to justice any of those who committed torture in, say, China?

Mr Crispin Blunt (Reigate, Conservative)

I am puzzled by the hon. Gentleman's intervention. It was his Government who entertained President Jiang Zemin so royally, and who suppressed demonstrators on the streets of London, Cambridge and elsewhere. We should take no lessons from the hon. Gentleman and his party, but let us get off that disagreeable note.

Under universal jurisdiction, we will be able to claim the right to protect British citizens who are victims of such crimes, wherever they are in the world. We do not want to limit such jurisdiction to presence in the United Kingdom. That said, I shall support the amendments of the right hon. Member for Caithness, Sutherland and Easter Ross if mine are not accepted.

We do not want to suffer the difficulties that Michael Birnbaum and Peter Carter have described. Let us consider the example of about 2,000 mercenaries who participate in a genocidal attack in the Congo. Their commanders are a Canadian, a Senegalese and a South African. Three of the mercenaries are British citizens, and one is an Australian who has a house in London, in which he lives for two months of the year. After the massacre, the Canadian buys a house in Manchester, in which he lives for seven weeks prior to his arrest. Under the clause as drafted, only the three British soldiers could be prosecuted. If the amendment were accepted, the Canadian and the Australian could also be prosecuted, assuming that residence could be established.

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

Will the hon. Gentleman give way?

Mr Crispin Blunt (Reigate, Conservative)

In a moment.

Whatever the merits of the example, the issue is that anyone else who participated in the massacre could visit the United Kingdom with impunity, provided that he was careful not stay long enough to qualify as a resident.

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

The hon. Gentleman has given the impression that such a person would not be prosecuted, but the reality is that, under the Bill and the statute, he would be referred back to the ICC. Do not forget that even for British citizens who are challenged under such laws, there is a dialogue with the ICC. A person would go before the ICC and be tried there; they would not get off scot-free, which is the impression that the hon. Gentleman leaves lingering.

Mr Crispin Blunt (Reigate, Conservative)

The Minister again makes the assumption that he has made throughout the Committee's proceedings: that the ICC will work precisely as he expects it to. That is not an assumption on which he can rely. If we want to bring British perpetrators of these crimes to justice, why should we limit our jurisdiction and ability to do so? By passing the Bill in an unamended form, that is what he invites us to do. He will have received representations from Amnesty International, the Medical Foundation for the Care of Victims of Torture and others, and will know that they are dissatisfied that we are not to sign up to universal jurisdiction. The purpose of universal jurisdiction for the United Kingdom is the purpose of the court itself. It is to ensure that people who are guilty of these crimes have even fewer places to hide and cannot hide, in any way, from British justice, which is—as the Minister knows—complementary to the ICC. If the ICC cannot bring an individual to justice, for whatever reason, we should be able to do so.

I am not advancing a unique position, but one that has been taken by the Government of New Zealand, and other Governments to whom I referred earlier. As has been acknowledged, we must consider that what we do in Parliament will be watched extremely carefully by other countries. If we include universal jurisdiction in the legislation, that will introduce the statute and bring about its ratification, our example will be followed by dozens of other countries and that will ensure that those guilty of crimes are much less likely to escape justice. That is what we want to achieve, so the amendments should be accepted.

Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)

I listened with great interest to the hon. Gentleman and I look forward to hearing the arguments deployed by the Minister in his reply. Although the jurisdiction of the ICC and our own jurisdiction were extensively debated in another place, the underlying rationale for extending the jurisdiction, in the way that my amendments try to do, may not have been adequately considered. It was widely welcomed in another place, and outside, that the Government abandoned their original proposals for jurisdiction in the British courts. It will be remembered that when the Bill was originally published, it was limited to ICC core crimes and to where they had been committed in England and Wales, and outside of the United Kingdom by a United Kingdom national, or by someone subject to United Kingdom service jurisdiction. That aroused hostility, of which the Government will be aware. Non-governmental organisations—some of which have been referred to by the hon. Member for Reigate—and the Bar Council, the Law Society and many other bodies expressed genuine concern that the original Bill limited the application of domestic offences in such a way.

The Government amendments have gone some way to address and meet some of the problems that have been highlighted. It is true that Government amendments have gone some way to address and meet some of the problems that have been highlighted. The amended Bill would allow our courts to prosecute non-nationals in respect of ICC crimes when the individual concerned subsequently becomes resident in the United Kingdom and is resident at the time the proceedings are brought, and when the acts involved would have constituted an offence if they had been committed in the part of the United Kingdom in which the individual is resident. However, the amendments that have been incorporated into the Bill do not go far enough. I want to spend a little time on the problems of the test of residency before I address the rationale for the amendments, which I think that the Minister has been trying to raise in interventions.

In another place, Baroness Scotland of Asthal said that the Government intended to adopt a residence-based test to match the definition used in the War Crimes Act 1991 and to afford flexibility to the test. It must be remembered that the 1991 Act was adopted in a very different situation from that in relation to the Bill. Incidentally, the residency test was also imported into the Sex Offenders Act 1997—the ``sex tourism'' legislation—which is somewhat similarly constructed. In the case of the 1991 Act, it is true that the basis for jurisdiction is residence. However, that is beside the point, for two reasons. First, the Act was, of necessity, retrospective, whereas the Bill, when enacted, will apply only to offences after it comes into force. Secondly, the purpose of the Act was to prosecute Nazi war criminals, who, even if they had not obtained United Kingdom citizenship, had made a permanent home here.

The Bill is intended to create a new international order for the prosecution of international crimes. The cornerstone of that scheme is the principle that was referred to—complementarity—and the presumption, I believe, that the state retains primary responsibility for the prosecution of ICC crimes. The preamble of the statute recalls that

``it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes''.

With respect, that is the answer to those who have been questioning the rationale for the amendment—it is to give effect to that purpose of the statute.

We must not drag our feet in accepting our responsibility to prosecute those responsible for the most heinous international crimes. That is not a partisan point. There is no question of moral superiority being asserted by me or my party, or by the hon. Member for Reigate. Those points have been made in another place by members of the Labour party, notably Lord Archer of Sandwell, who said:

``This is an opportunity to offer a lead to other countries in an exciting new, international venture...We should not sidle towards the matter at the edge of the crowd; we ought to be looking to give a lead here.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 74.]

Nor would we be alone if the Government were to accept the amendments that I have tabled and incorporate them into the Bill. Several other countries with similar legal systems and similar histories have accepted universal jurisdiction on a wider basis than residence. New Zealand, Belgium and Canada have already so legislated, and Germany and South Africa have expressed an intention to follow their example. The Belgian statute, which is currently subject to a challenge before the International Court of Justice and the New Zealand International Crimes and ICC Act 2000, both adopt universal jurisdiction without qualification. We would not be out of line therefore in following the route that I am recommending.

Mr David Lammy (Tottenham, Labour)

Does the right hon. Gentleman accept that internationalism can be based on the nation state partaking internationally as well as on the global state acting internationally?

Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)

I take the hon. Gentleman's point. I certainly aspire to the sort of internationalism to which he is attaching his argument. It is undoubtedly desirable that international institutions should co-operate effectively. However, under the preamble to the statute, the parties to the treaty already recognised that their primary concern was the effective implementation of the rules of law and war. In making the nation states primarily responsible for such implementation, they were acknowledging how far we are from the sort of international order to which the hon. Gentleman and I aspire. It was a practical consideration in the minds of the drafters of the treaty rather than an ideological one based on old habits of colonial thinking.

Mr Des Browne (Kilmarnock and Loudoun, Labour)

The right hon. Gentleman must accept that the preamble to the statute is capable of another interpretation, which is that the duty of each state is to exercise its existing criminal jurisdiction over those responsible for international crime. The preamble can be used to encourage countries to take universal jurisdiction. Equally, it could be understood to mean that there is a recognition that states should exercise the jurisdiction that they have over international crimes. I am genuinely interested to know from the right hon. Gentleman whether, during the discussions on the Rome statute, the issue about the state parties requiring each other to take universal jurisdiction was discussed? It does not figure in the articles of the statute, but that matter may have been debated.

Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)

I believe that such a matters was discussed. It is certainly not a requirement of the statute because it was difficult to obtain from the signatories universal acceptance of that principle. It is right to say that the preamble is not conclusive of the issue, but it leans heavily in the direction of recognising that, if that system of law is to work, full participation of the member states is an important part in achieving its efficacy. Different countries have interpreted that responsibility in different ways. I am not saying that there is a mandatory requirement to do so, but that is the thrust of the statute.

Mr Mark Hendrick (Preston, Labour)

Is the right hon. Gentleman suggesting that not only the United Kingdom, but all other signatories to the ratification should take on universal jurisdiction? That would negate the need for the ICC because every state would try the person itself. If that were the case and such people were tried within the state concerned, is he not worried that there would be huge inconsistencies among all the signatory states in the level of justice and the punishment that criminals would receive?

Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)

Ms Oona King (Bethnal Green and Bow, Labour)

Thank you, Mr. Cook, for the opportunity to contribute briefly to the debate on residency. I enjoyed tremendously the contribution of the hon. Member for Reigate. I have never seen a Tory get so sincerely worked up about the need to track down war criminals and dictators—whether they are in Lady Thatcher's living room or elsewhere—and I welcome that. However, it is important that we state categorically that when a person comes to this country, be they resident or merely present, they will be brought to justice if there is an ICC warrant for their arrest. I know that the Solicitor-General will be able to assure us categorically that such a person would be tried in the UK or extradited by the ICC.

The hon. Member for Reigate raised the further issue of the ICC's being unwilling or unable to act. The Solicitor-General said that that is a different argument and he is right, but I hope that he will forgive me if I pursue one or two related points. In what circumstances might a war criminal be present but not resident in Britain? How would the Government deal with lower-ranking perpetrators of war crimes in this country? If there were no warrant for such a person's arrest but evidence subsequently came to light to suggest that they were indeed suspected of war crimes, and if we did not want to try them here because they were not resident, how would we go about requesting that the ICC initiate its procedure? Would we have the power to detain such a person while we carried out the necessary procedure?

There are many relevant examples in my constituency. It has a large Somalian community and a large Bangladeshi community, and there are many war crimes in both those countries. Someone visiting one of the many world-class tourist attractions in the east end, such as the Crown jewels, might see the person who had tortured them. If the British Government believed that they had received adequate evidence to think that that person was reasonably suspected of war crimes, what would happen? There would not, as yet, be a warrant out for the arrest of that person.

Another example relates to the Congo, where there is a civil war continuing and where six Red Cross workers were tragically murdered last week. The question that I want to ask in relation to the amendments is this: if there was no jurisdiction over an offender because the Congo had not accepted ICC jurisdiction or because the offender's nationality could not be established, Michael Birnbaum and Peter Carter, the QCs mentioned earlier, maintain that if the offender were to come to the UK, he would not be at risk of prosecution because he would not be a resident. Will the Minister clarify my understanding, which is that he would, in fact, be at risk of prosecution?

Points were made earlier about the happenstance of the dissolution of this Parliament. I think that we would all welcome any measures that might take place afterwards to strengthen the provisions that have been laid out.

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

The first set of amendments, from the hon. Member for Reigate, would result in universal jurisdiction. The second, from the right hon. Member for Caithness, Sutherland and Easter Ross, would impose the presence test.

The Government have already moved a considerable distance from the consultation draft. We made two major changes to the Bill as a result of listening to what was said in the other place and by the NGOs. One, to which we might return later, relates to extradition and the dual criminality provision, especially in clause 72. In addition, we have here extended the jurisdiction of UK courts to persons resident in the United Kingdom.

It is misleading to say that all the countries that the hon. Member for Reigate listed have taken universal jurisdiction. A presence test is not universal jurisdiction. Many countries have simply passed legislation to enable them to surrender persons to the ICC, and do not even have the equivalent of part V of the Bill in making such crimes domestic crimes. I can, therefore, refute that point now.

We have said that we have severe doubts about taking jurisdiction over people who have no substantial link with the United Kingdom. Historically, our practice has been to take universal jurisdiction only when it is obligatory as a result of an international agreement. The torture convention that the hon. Gentleman mentioned, the hostage taking convention and the grave breaches of the Geneva protocols are cases that involved obligations on our part to take universal jurisdiction, and we did so. I assure the right hon. Gentleman that the Bill does not affect the universal jurisdiction that operates over grave breaches of the Geneva protocols. That universal jurisdiction will remain. As we have seen, the Bill mirrors the provisions of the Geneva protocols to a large extent.

Mr Crispin Blunt (Reigate, Conservative)

The hon. and learned Gentleman makes the point that where the United Kingdom has been successful when negotiating international treaties in placing an obligation on those who are party to the treaties to implement universal jurisdiction in law, we have done so, but where we have been unsuccessful in achieving universal jurisdiction—as with the statute—we are necessarily going to limit the position in domestic law here as well. That is a pretty shabby argument for not extending universal jurisdiction to the crimes under the statute, if the arguments for universal jurisdiction in matters such as torture stand on their own merits.

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

Our argument is a principle; I will come to the policy argument in a moment.

In relation to the obligation concerning grave breaches of the Geneva protocols, such as torture and hostage taking, I have a point to make about genocide, which the hon. Member for Reigate mentioned. We have not had universal jurisdiction under the conventions; until now, we have not even had extraterritorial jurisdiction. As a result of clause 51(2), we will have extraterritorial jurisdiction over genocide.

Non-governmental organisations have raised an argument about the preamble. As my hon. Friend the Member for Kilmarnock and Loudoun spotted—perceptively, as in previous debates—the preamble does not impose an obligation. I am informed that there was no discussion at Rome of an obligation for states to take universal jurisdiction.

Mr Edward Garnier (Harborough, Conservative)

There was no obligation, in that sense, to sign up to the statute. We did not have to do that.

In the face of the arguments raised in the other place when it was having the same discussion that we are having now, in the face of the arguments advanced by the right hon. Member for Caithness, Sutherland and Easter Ross and by my hon. Friend the Member for Reigate, and in the face of the scepticism expressed by some of the Solicitor-General's colleagues this afternoon, I find it puzzling that the Government's fondness for morality, which underscored their arguments in favour of the ICC, seems to be crumbling somewhat. The hideous expression ``practicality'' is, perhaps, entering the argument. Can the Government assure me that they are not moving away from the so-called moral stance that they advanced when they introduced the Bill to the House of Commons?

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

I think that I can easily rebut that by invoking the points made by my hon. Friends the Members for Tottenham (Mr. Lammy) and for Preston. There is a principled approach here—an internationalism. We take the view that, where crimes have been committed overseas by persons with whom we have no link, it is for their countries to deal with such matters first. We have faith in the systems of countries such as the United States, which might not ratify the treaty, to deal with such war crimes, crimes against humanity and genocide. If states fail to deal with such crimes, the ICC is there as an expert, independent, powerful international body, with international legitimacy to deal with those grave crimes.

Mr Crispin Blunt (Reigate, Conservative)

The Solicitor-General says that there might be no link with the United Kingdom. However, the link might well be that the victims are British.

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

As I said, we rely on countries that have such a link to deal with the matter first. The ICC is then there as a back stop. We believe that the notions of nationality and residence provide those links. We do not consider that mere presence provides a sufficient nexus. The fact that we are taking jurisdiction over residents rather than those present does not mean that those individuals not resident are able to remain in the UK with impunity. While they are present in the UK, they are still liable to arrest and surrender to the ICC and to extradition to another state with jurisdiction over them. We have considered the issues of jurisdiction at great length and we are convinced that the approach that we now advocate leaves no room for the UK to become a safe haven for war criminals.

Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)

I accept what the Solicitor-General says about the UK not being a safe haven for war criminals, but it could be a place where they at least enjoy a rather pleasant holiday.

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

The right hon. Gentleman has raised the issue of residence. What does the term ``residence'' mean? It is not a status, and it can be neither permanent nor exclusive. I appreciate that it involves uncertainty. However, that very uncertainty will dissuade war criminals from coming to this jurisdiction out of fear that the flexibility of the term may result in their being caught by it. We also take the view that if we tried to spell out the indicia of residence in the Bill we would almost certainly leave gaps, which would defeat our purpose.

My hon. Friend the Member for Bethnal Green and Bow (Ms King) asked what we will be able to do about middle-ranking persons who are here. Article 14 of the Rome statute clearly provides that we can refer such matters to the ICC, and our approach will be to co-operate with the ICC—or, if another state requests it, to extradite persons to the other jurisdiction concerned.

In summary, we have a three-pronged strategy. First, the ICC can request arrest and surrender. Secondly, if persons are resident here we can bring prosecutions. Thirdly, if a state with jurisdiction sought extradition we would consider it in the normal way. That is a strong regime that will send a powerful message of deterrence that the United Kingdom is not a place where war criminals may seek to evade the reach of the law.

Mr Crispin Blunt (Reigate, Conservative)

Having listened to the arguments of the Minister, Labour Members and the right hon. Member for Caithness, Sutherland and Easter Ross, I have to say that I do not find the Government's case convincing. There are, as we have discussed, loopholes in terms of extradition. Moreover, I do not accept their position on the meaning of the preamble to the statute, which is perfectly clear to any reasonable person. I therefore wish to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.