Clause 51 - Genocide, crimes against humanity and war crimes
International Criminal Court Bill [Lords]
4:15 pm
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.