Section 1 — Genocide, crimes against humanity and war crimes

International Criminal Court (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:36 am on 13th September 2001.

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Photo of Christine Grahame Christine Grahame Scottish National Party

It is ironic that we are debating the bill against the background of the recent tragic events and also the death yesterday of Anton Gecas. That said, the bill does not deal with terrorism.

Amendment 40 seeks to displace what I call the minimalism of the Scottish Executive test for jurisdiction in pursuing alleged war criminals. It will substitute what I refer to as absolute universal jurisdiction. Members will have to pin their ears back at this point, as there are two kinds of jurisdiction. I refer to the absolute kind, which, by means of amendment 40, I wish to incorporate in the bill. That contrasts with partial universal jurisdiction, which—to put it simply—is the presence test. If amendment 40 is agreed to, it will have the consequential effect of making section 6 redundant. As that is the subject of amendment 41, I will speak only to amendment 40. The bill is inadequate and dismally disappointing. A sullen adherence to the residence test is parochial when we have the opportunity to be truly international.

Although amendment 40 is important, for many it is pretty esoteric stuff. As ministers and a few other souls in the chamber will recall, the argument was aired at stage 2. Many members will not have read the Official Report of the stage 2 debate, nor will they have committed the proceedings to memory. I will refer liberally to the Official Report with reference to the residence test.

There are obvious practical anomalies thrown up by the test. I will give an example. Mercenaries from many nations commit a heinous crime against humanity. It is committed against Red Cross volunteers who are engaged in humanitarian work. Two of the mercenaries are Scots; one is a German car trader who has just bought a flat in Glasgow, and another is an Italian who has commercial properties in Scotland and commutes here for business purposes. The latter two, when shopping in Princes Street, are recognised by one of their Red Cross victims. Are they resident in Scotland? Are they residents as defined under section 6 of the bill? I do not know and I suspect that neither do the ministers.

During the stage 2 debate, Iain Gray, the Deputy Minister for Justice, said that a person's uncertainty about their residency would act as a deterrent. That argument was also used during a Westminster debate on the UK bill, to which I will refer later. The argument is that in the minds of the mercenaries there would always be an element of doubt whether the residence element of the legislation applied to them. They might think that they would be arrested and extradited to another country that has jurisdiction over them, or arrested and surrendered to the international criminal court in The Hague.

That argument can be unpicked because uncertainty works both ways. If nations exercise universal jurisdiction, whether it is universal or partial, there is no hiding place. However, war criminals in Scotland might just have a long holiday, ensuring that residency—whatever that is—could never apply. Residency is a complex notion. As with immigration and whether a person is resident, there are many different tests: for tax, for matrimonial law and for education rights.

If we have no jurisdiction, a criminal could flee while awaiting extradition procedures. With the right to arrest, as provided for by my amendment, or even on the presence test, there could be no flight, nor even a safe haven—no uncertainty there. The deterrence argument is a fig leaf for the flaw in the bill.

The minister refuted the argument that criminals might visit Scotland with impunity by stating first that action is being taken to strengthen immigration rules. Does he really believe that a determined, guilty person could not work round those? Secondly, he contended that there might be insufficiency of evidence, even if we had universal jurisdiction. However, that would be determined by the Lord Advocate. If he were unable to try the case for that reason, it could be remitted to the international criminal court—there are rules allowing that. Thirdly, the minister argued that we should move in step with the statute and the international community.

Universal jurisdiction has been adopted by the following countries: 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, Tobago, Venezuela. Residence has been adopted by San Marino, Gabon, the Marshall Islands, Senegal and, of course, the UK. I know which group I think is the international community.

Photo of Phil Gallie Phil Gallie Conservative

The member lists the countries that give support to the Rome statute. How many countries have not signed up to it and how many countries have not registered any kind of support?

Photo of Christine Grahame Christine Grahame Scottish National Party

That is irrelevant. As I move through my speech I will mention one country that has not signed up.

Two men commit crimes against humanity. One is a Scot, the other is a Canadian. If they were both in Scotland—with the Canadian on holiday—we could prosecute only the Scot. If they were both in Canada—with the Scot on holiday—the Canadians, with partial universal jurisdiction or the presence test, could prosecute both. Under the terms of my amendment, if they were both on holiday in France, Scotland could prosecute them.

In the first example, how could a prosecution properly proceed against only one of the accused, and not his co-accused? We might have two prospective war criminals: one in Scotland and one in Canada. The residence test means that if we had all the evidence that we required and wished to prosecute, we could not prosecute the two together. We must remember that the purpose of the bill is that the national court will be the first court to try the case. The ICC steps in only in other, special circumstances. That is poor law.

Finally, I refer the Liberal Democrats and the Conservatives to the House of Commons deliberations on these very issues earlier this year. There, the Conservative Crispin Blunt argued eloquently for absolute universal jurisdiction and pressed his argument to a vote, which he lost by five votes to 10. It was all aired far more thoroughly at Westminster than we have had the time and opportunity to do here.

Mr Blunt stated:

"Under universal jurisdiction, we will be able to claim the right to protect ... citizens who are victims of such crimes, wherever they are in the world. We do not want to limit such jurisdiction to presence"— presence, not residence—

"in the United Kingdom."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 306.]

He moved on to support the amendments of Robert Maclennan, Liberal Democrat, who was arguing for the presence test. Again, in an eloquent and well-argued position for partial jurisdiction, Mr Maclennan said:

"The term 'residence' is complex."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 310.]

He went on to define it in terms of English law, which varies slightly in some respects from Scots law.

Photo of Christine Grahame Christine Grahame Scottish National Party

It only varies because much of the residence test regards tax and immigration, which is, of course, UK-wide.

In English law, the term residence

"bears varying meanings according to its context, and great caution must be exercised before authorities on the meaning of residence in context such as bankruptcy, taxation, or ... poor law ... are applied .... In particular, it is clear that some degree of permanence is required for the acquisition of residence in some contexts, but not, or to a lesser extent, in others."

That was Mr Maclennan's argument. It is an argument that is also sustained in Scotland, where many lawyers are well aware of the complexities of defining that difficult notion of residence.

In the House of Lords, Baroness Scotland said:

"One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident."—[Official Report, House of Lords, 12 February 2001; Vol 622, c 85.]

That is common sense.

Robert Maclennan said:

"The trouble is that definitions of residence will have little to do with the degree of moral culpability that is attached to the crimes with which they are charged. The definitions deal solely with the issue of jurisdiction. ... That means that the Bill will hinge on an uncertain test, or on a legally certain but narrow definition. We should not be happy with either."—[Official Report, House of Commons, Standing Committee D, 3 May 2001; c 311.]

Robert Maclennan made it clear that that was the Liberal Democrat position on jurisdiction.

It is interesting that during the debates at stages 1 and 2—brief though they were—the Conservatives and the Liberal Democrats made no representations that reflected in any way the arguments that were put so well at Westminster.

I refer to the deterrence element again. Absolute jurisdiction—which was argued for by Robert Maclennan—would have allowed the immediate arrest of the German car trader and the Italian businessman. The Scottish National Party wants Scotland to play its full part in bringing those responsible for crimes against humanity to justice; as Robert Maclennan said, residence deals only with jurisdiction, not culpability. It is petty-minded, as well as being an uncertain anchor for prosecution.

I quote a contributor to the House of Lords debate:

"This is an opportunity to offer a lead to other countries in an exciting new, international venture. ... We should not sidle towards ... 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.]

Well, I know sidling to the edge of the crowd when I see it.

I move amendment 40.

Photo of Lord James Selkirk Lord James Selkirk Conservative

I have some sympathy with the case that has been put forward but it is outweighed by other considerations.

On 14 June, the minister gave three reasons for opposing universal jurisdiction. First, it is not consistent with the traditions of Scots law, which is based on territorial principles. Secondly, we have taken universal jurisdiction in the past only where it was required by international treaty. Thirdly, the Administration considered it inappropriate to assume the role of global prosecutor. We agree with the Administration's position, since it would be unrealistic for us to assume the role of police enforcer throughout the world. We believe that universal jurisdiction, unless supported by international treaty, would be unenforceable.

Of course, it may be that there will be further international treaties in the fullness of time, but not at this stage. In any case, the collection of evidence to meet the 110-day time limit would be very difficult to meet. We believe that it would be a mistake, in the first instance, to bite off more than we can chew. The bill gets it about right. However, that does not preclude further legislation. For those reasons, I recommend to my colleagues that they support the Administration.

Photo of Pauline McNeill Pauline McNeill Labour

I oppose amendment 40. We had the same debate at stage 1, and it is a legitimate debate to have. It shows the maturity of a Parliament that it can at least debate the possibility of incorporating that difference from the UK act into the Scottish bill. However, the arguments against the adoption of universal jurisdiction are quite overwhelming.

Christine Grahame listed the countries that have signed up to that concept, but the vast majority of countries have not signed up to it. That means that the practicalities of adopting such a principle are huge. What Christine Grahame is suggesting would mean, for example, that Scotland could detain a French national, although France is not signed up to universal jurisdiction, and attempt to prosecute him or her. The idea that there would be no diplomatic repercussions for Scotland doing that to nationals of countries that had not signed up to the principle is a little naïve.

Many practicalities must be considered in connection with the concept of universal jurisdiction. We could have to prove a case against a person who is on holiday in Scotland, who is just passing through, and who has virtually no connection with Scotland. In cases of international crime, the scene of the crime will often not be in Scotland either. Scotland has legal time limits. In custodial cases, 110 days is all that we have to prove a case against a person, and such practicalities would have to be considered before adopting such a principle.

Photo of Christine Grahame Christine Grahame Scottish National Party

What is Pauline McNeill's solution to the problem of, let us say, two co-accused, one of whom has a residence in Scotland and can be tried here—supposing it was appropriate for the case to be tried here—and the other of whom does not have a residence here and therefore cannot be brought to justice in this country? That would mean running a case against one accused, without the co-accused. Is not that a huge problem?

Photo of Pauline McNeill Pauline McNeill Labour

Whatever principle is adopted, there will be anomalies, and the anomaly in that example raises an important point. However, Christine Grahame is looking at the bill without considering other measures that are in place, such as other international obligations and the right of extradition. We must consider the whole of international law, not just the bill that we are examining today, to see what powers are available to Scotland and to the UK.

On balance, the practicalities of adopting such a principle mean that I am unable to support amendment 40. It is important to note that the treaty does not require Scotland, or indeed the UK, to adopt such a principle. I therefore oppose the amendment.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I too encourage my colleagues to oppose amendment 40. I appreciate Christine Grahame's point and she has been consistent in her advocacy of it at all stages of the bill. However, Pauline McNeill has also made a number of important points.

Christine Grahame intervened to give an example of problems with residence. It is my understanding that, if the co-accused was not resident in Scotland, that is exactly the sort of circumstance in which the international criminal court would take action. That would be dealt with by the proceedings of the court.

Lord James Douglas-Hamilton listed three reasons that were given by the minister at stages 1 and 2 as to why universal jurisdiction is not appropriate for Scotland, the principal one being that the main principle of Scots law is based on territoriality. Paragraph 25 of the Justice 2 Committee's stage 1 report on the bill stressed the importance of maintaining

"internal consistency within domestic law, rather than trying to harmonise with the International Criminal Court in circumstances where that is not required."

Photo of Christine Grahame Christine Grahame Scottish National Party

Would Tavish Scott have supported Robert Maclennan's position on the presence test?

Photo of Tavish Scott Tavish Scott Liberal Democrat

I find it interesting that Christine Grahame raises what is going on at Westminster and what is said in another place, in another context, about a different form of law, where different principles apply. Perhaps she will want to reflect on that.

The second argument that Lord James Douglas-Hamilton mentioned against adopting the principle was that universal jurisdiction has hitherto been enshrined in Scots law only when that has been required by international treaty. Pauline McNeill made the same point. Universal jurisdiction was not part of the Rome statute. Indeed, the treaty has been built by way of international consensus. If one looks at the wider picture, especially in the light of recent events, that is an important measure that the international community can use to make progress. It will help to ensure that, in addition to the countries that have already signed up to or are about to ratify the treaty, many other countries will become involved. That is an aspiration that I hope all members share.

Thirdly, as Lord James said, it has been argued that Scotland would not want universal jurisdiction in this case, because it demands that our legal system assume the responsibility of global prosecutor. That is a worthy consideration, which should be taken into account. For those reasons, I oppose amendment 40.

Photo of Iain Gray Iain Gray Labour

During stages 1 and 2, the Executive position was that universal jurisdiction is not the most appropriate approach. There are several key reasons why that is so, which are worth repeating.

We believe that the strongest guiding principle that should inform our approach to this matter is the will of the international community; the clear will of the international community in this respect is the Rome statute. A departure from the international consensus would surely constitute parochialism on our part. It is therefore important to focus on the Rome statute as our legislation moves through its final stage in the Scottish Parliament and particularly as we discuss amendments 40 and 41. After all, the main purpose of the bill is to ensure that Scotland and the United Kingdom are able to ratify the Rome statute on the international criminal court.

The statute is a carefully drafted document that was finalised only after many years of debate and discussion, so it represents the clearest expression of the thinking of the international community on how we should tackle the gravest of crimes. It envisages an approach that encourages individual countries to live up to their own responsibilities in the prosecution of war crimes and other crimes that have been committed by their own citizens. The preamble to the statute says:

"the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions".

Therefore, national courts will retain primary jurisdiction. However, where individual countries are unable or unwilling genuinely to take action, perhaps for some of the reasons that Christine Grahame has outlined, where conflict has led to a collapse of the local judicial system, or where a dictatorial Government refuses to punish its own abuses, the statute envisages that the ICC will be established, as provided for in article 1,

"to exercise its jurisdiction over persons for the most serious crimes of international concern".

That contrasts clearly with an alternative approach, which the international community might have chosen to take, whereby ratifying countries would ensure that they had universal jurisdiction to deal with war criminals no matter where they were found or where the crimes occurred. Had that approach been taken, the need for the international criminal court itself would have been much less clear. That was explicitly not the consensus.

Nowhere does the statute stipulate that individual countries should head down the path of prosecuting individuals who have no connection to them. Given the often enormously complex nature of the international conflicts that engender such situations, it is not difficult to see why that is the case.

Photo of Christine Grahame Christine Grahame Scottish National Party

Does the minister accept that, although the statute does not say that a country must have universal jurisdiction, neither does it say that a country cannot have universal jurisdiction and that that is a matter for individual nations? Does he think that Canada has made a big mistake in accepting the presence test, for instance?

Photo of Iain Gray Iain Gray Labour

Let me address the approaches that other countries have taken a little later in my speech. There were two alternative routes that the discussions on the Rome statute could have chosen to take. One was to promote the idea of universal jurisdiction in as many countries as possible to allow international crimes to be brought to justice and the alternative was to set up the international criminal court as the institution to bring such cases to justice. Setting up the court would not have been required if the alternative approach had been taken. The construction of the international criminal court in and of itself is clear evidence of the non-requirement for universal jurisdiction to be adopted, except in countries where that is the legal tradition, which is not the case in Scotland.

Photo of Christine Grahame Christine Grahame Scottish National Party 10:00 am, 13th September 2001

I am glad that the minister has such faith in the ICC, but I am concerned that the ICC might move slowly and a nation state with universal jurisdiction will be lost when there is an opportunity to detain and apprehend a suspected war criminal. Such a situation will happen in due course. I may be proved wrong, but I am greatly concerned. Extradition is not a quick process.

Photo of Iain Gray Iain Gray Labour

That argument is wrong—it undermines the ICC's credibility before it has been constructed.

It has been pointed out that Scottish legal traditions are reflected consistently in the International Criminal Court (Scotland) Bill. The most important tradition is the principle that territorial jurisdiction is central to the prosecution of crimes in Scotland. In Scots law, criminal jurisdiction is based on the territorial principle. In the absence of legislation to the contrary, the jurisdiction of the Scottish criminal courts is limited to crimes that are committed in Scotland.

That jurisdiction has been changed in a number of instances that lend argument to the Executive's position. Two statutes that extend jurisdiction of the Scottish courts to offences that are committed outwith Scotland are the Criminal Procedure (Scotland) Act 1995 and the Sex Offenders Act 1997, section 8 of which inserted section 16B into the 1995 act. That level of jurisdiction is contained in the International Criminal Court (Scotland) Bill. Perhaps more relevantly, universal jurisdiction as described by Christine Grahame is taken through the Geneva Conventions Act 1957 and section 134 of the Criminal Justice Act 1988, which provides for the prosecution of the offence of torture committed in the UK or elsewhere by a public official of any nationality. The key point is that in the two latter instances, universal jurisdiction was taken in UK law specifically because it was required by international agreement. That is not the situation in respect of the Rome statute.

Many of Christine Grahame's examples refer to countries with a tradition of universal jurisdiction in their domestic law, which is why it has been carried through to their ratification of the Rome statute. The information is difficult to find, given that many countries have not yet ratified the statute. Switzerland, for example, was mentioned, but it has not ratified it. I understand that Australia and France will not take universal jurisdiction. Many of the 139 countries that have signed the statute have not yet ratified it and some have ratified it without domestic legislation prior to ratification. The situation is complex, but the principle is that countries stick to the principles of their own legal systems.

We are not doing the minimum required by the statute, as Christine Grahame said. Our provisions are perfectly in tune with the principles and philosophy of the treaty, which attempts to build an international approach to dealing with instances where war crimes, for example, cannot be dealt with by domestic courts. Amendments 40 and 41 suggest that we turn our back on that consensus. Not only is such an approach impractical, it risks diverting us from the key business at hand, which is to establish and support the ICC.

There are also practical considerations. If a suspected war criminal with whom there was no Scottish connection were simply on a fleeting visit—shopping in Princes Street perhaps—can it realistically be expected that sufficient information could be gathered against them to meet the time requirements that are an important safeguard in our legal system? It would be much better to arrest and extradite the suspect to a country where there is a connection, or indeed to the ICC itself.

Photo of Christine Grahame Christine Grahame Scottish National Party

Does the minister accept that, if we had absolute universal jurisdiction and had detained, for example, a German mercenary on Princes Street but were unable to prosecute because of the difficulties of evidence, the ICC would take over at that point? The point is that in those circumstances the person would have been detained and would be in custody.

Photo of Iain Gray Iain Gray Labour

If extradition were sought against the person, he would similarly be arrested and detained. Christine Grahame's concern that they would immediately hop on the nearest plane and leave would not apply.

There is the real risk that the encouragement of universal jurisdiction as the route for dealing with such issues would undermine the very institution we are seeking to establish. Christine Grahame's comments add some weight to that argument. It is not hard to see that if the ICC investigated an individual and decided not to take action against him but another country with perhaps no connection at all with the crime or the suspect subsequently decided that they would step in and prosecute, the credibility and robustness of the ICC would be undermined.

There are good reasons of principle why we should not take universal jurisdiction, such as our wish to be consistent with our own traditions and the international consensus. There are also practical considerations, such as the difficulty of prosecuting within the stipulated time limits. For those reasons, we remain convinced that we should stick with the extended jurisdiction in the bill and resist the idea of universal jurisdiction.

I invite Christine Grahame to withdraw amendment 40 and not move 41.

Photo of Christine Grahame Christine Grahame Scottish National Party

I do not seek to undermine the ICC in any way—I fully support its existence. I am concerned about the residence test. Aside from the uncertainty and how the test might be manipulated by suspected criminals—

Photo of Christine Grahame Christine Grahame Scottish National Party

I want to finish what I was saying. I want to ensure that there is no chance that criminals will escape or that there will be extensive delays in prosecuting criminals—that may occur with the operation of international law. The minister said that the ICC is complementary, but he is aware that the first port of call for prosecution is the domestic court.

Photo of Iain Gray Iain Gray Labour

I did not intend to say that Christine Grahame wanted deliberately to undermine the ICC. As the bill has progressed, her commitment to its primary purpose has been manifest. My point is that the argument for universal jurisdiction runs the risk of leading inadvertently to the undermining of the credibility of the ICC. I did not intend to imply that she meant deliberately to undermine the ICC.

Photo of Patricia Ferguson Patricia Ferguson Labour

The question is, that amendment 40 be agreed to. Are we agreed?



Division number 1

For: Adam, Brian, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Ewing, Dr Winnie, Ewing, Fergus, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Neil, Alex, Reid, Mr George, Robison, Shona, Russell, Michael, Sturgeon, Nicola, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Tosh, Mr Murray, Wallace, Ben, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of Patricia Ferguson Patricia Ferguson Labour

The result of the division is: For 26, Against 76, Abstentions 0.

Amendment 40 disagreed to.