[Martin Caton in the Chair] — International Criminal Court (Kenya)

– in Westminster Hall at 12:00 am on 9 October 2013.

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Motion made, and Question proposed, That the sitting be now adjourned.—(John Penrose.)

Photo of Eric Joyce Eric Joyce Labour, Falkirk 9:30, 9 October 2013

I am conscious that some hon. Members on both sides of the Chamber know quite a lot about this subject and have shown great interest in Africa, particularly Kenya, over the years. Some of what I say will not be news to them, and will be well known to the Minister, but it is important to set the scene and to say a few things that may seem obvious to some, but not to others observing what is going on at the moment. Today, I am particularly concerned about the nature of the ongoing action by the International Criminal Court against President Kenyatta and Deputy President Ruto, and that is, primarily, the context in which I will speak. I will make a few comments about the ICC, but they will be entirely contextual and legitimate, and I will be careful not to stray too far, Mr Caton.

On Monday 13 October, the African Union will meet to discuss the possibility of African ICC member states withdrawing from the ICC en masse. That meeting will take place in Addis Ababa and was precipitated by the ICC’s treatment of President Kenyatta and Deputy President Ruto, but the crux has been a long time coming. There is nothing inherently unreasonable in holding people to account in front of the ICC, but the nature of the present action against President Kenyatta and Deputy President Ruto is of particular concern.

Some nations, particularly African nations, that are signatories to the treaty of Rome are placing the future of the ICC in question. There is a risk that Africans in the UK—I speak to many of them in diasporas of all sorts—and particularly Kenyans will see it as the African criminal court, rather than the International Criminal Court. I want to set out how and why that has happened. I am not critical in any sense of the Government’s position on Kenya over the past year or so; they have handled the situation not elegantly—that may be putting too fine a point on it—but rather well earlier in the year, when President Kenyatta won the election. The Prime Minister encouraged him to come to the UK and met him soon after his election, which sent a significant message. Nevertheless, there is a strange and strained diplomatic relationship, in that we still support the ICC and its ongoing action to bring the President to court.

Kenya is one of our most important allies on the African continent. One of our largest foreign training bases is there, and the UK and Kenya host each other’s large diasporas. Trade with Kenya through Nairobi has been increasing almost exponentially for some years. We have the strongest of historical links, too. I will not go into whether the empire was good or bad. There were many good things about it, although we tend to remember the bad things, but the long view shows benefits that accrued on both sides.

Sometimes our relationship with Kenya has been fraught, to put it mildly, notably during the Mau Mau uprising. It is to the Government’s credit that at the beginning of the summer they recognised that crimes that were broadly described as being against humanity took place when we were running the show, and reparation has been made to Kenyans who were affected. Some people are ambivalent about that, because some Kenyans were fighting against British soldiers at the time, but the Government’s general view—I am not sure what the Opposition’s position is—was that it was right to make reparation. Soldiers who behaved abominably, as some did, cannot be held to account now because they are dead, and we should remember that, but we should also remember the context in which the Mau Mau uprising took place, and the nature of the deployment that our troops faced. However, we bear in mind that we are making reparation for what can today be described as war crimes.

I will not rehearse the democratic period in Kenya, but will fast forward to 2007, when there was bad violence just before the election then. There is no question about that, and no one doubts it.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

I thank the hon. Gentleman for bringing this matter to the Chamber for consideration. Some 600,000 people were displaced and 1,100 were killed, including 30 women and children who were burned alive in a church. Does he believe that now is the time—time is going by fast—for the International Criminal Court to try those who were responsible for those crimes?

Photo of Eric Joyce Eric Joyce Labour, Falkirk

I thank the hon. Gentleman for his important intervention, which goes to the crux of the debate. I will explore some aspects of the decision that sits with the ICC, but it is becoming a political issue. Of course it is right to hold people to account, but things happen in the world, in Africa and, historically, closer to home, and sometimes a choice must be made between justice and peace. That is not to say that standards are lower, but as my argument develops it will be seen that this is one such case.

Photo of David Simpson David Simpson Shadow DUP Spokesperson (Communities and Local Government), Shadow DUP Spokesperson (Business, Innovation and Skills)

Innocent people have been murdered and burned alive in churches, so surely the Government must address the whole issue of corruption in Kenya. Countries donate money to African countries where there is a lot of corruption, and Governments must deal with that.

Photo of Eric Joyce Eric Joyce Labour, Falkirk

I thank the hon. Gentleman for that intervention. It is true that when we think about Africa, politics and governance, we tend automatically to think about corruption. Corruption in many parts of Africa and of course in Kenya must be dealt with in every possible way. We must encourage the authorities to do that, and I think the authorities in Kenya, as in most African states, are willing to do so. Sometimes we are a little too ready and quick to flag up corruption as a synonym for a nation state’s name, instead of remembering that such states are sometimes making enormous progress. I will not rehearse the arguments about Rwanda, which is perhaps the best example, but Kenya is also a good example of a state that is making bounding progress. That is part of what causes me concern about the ICC action.

We know that there was violence before the 2007 general election, and we know that following the election, presidential candidates came together to form a Government of national unity. President Kibaki and Prime Minister Odinga were the two primary office-holders, and that coalition held together for a full term of office. Significantly, violence was almost entirely absent at the following election, after the coalition—the election that has just taken place. That suggests that a lasting resolution was achieved with the coalition back in 2007, and Kenyan people understand that.However, part of that coalition agreement was that there would be an inquiry, quite rightly, into the violence that took place during the election.

The inquiry was duly conducted by a Kenyan judge, Justice Philip Waki, who felt that six individuals had committed serious offences, but when the Kenyan Parliament took a vote—it votes on judicial or legal matters in a way that we probably would not—it decided not to refer the matter onwards, so the judge decided to refer it to the United Nations Secretary-General, with a recommendation that it should then be passed on to the ICC. That is why the series of six cases has ended up where it has. It was essentially a quasi-judicial process in Kenya, which has ended up as an administrative and legal process in The Hague.

Following a two-to-one decision in a pre-trial chamber in The Hague, the ICC indicted a number of people. Some of those cases have collapsed, but now, six years later, the cases against President Kenyatta and Vice-President Ruto, who won this year’s election, continue. Both men have been indicted and both have made voluntary appearances, unarrested, at The Hague. We have seen them on our televisions; they have freely attended as required, and they have supported the process up to a point.

The action by the ICC, six years after events on which there is one dissenting opinion, has enormous implications for the Kenyan people. It is true that Mr Kenyatta is not the first Head of State to be indicted by the ICC, and I will come to that shortly, but Kenya is of enormous importance to the UK—that is not to say that Sudan is not, but Kenya is particularly important to the UK and all our allies. Kenya has also successfully come through a period of strife, when other countries have collapsed under the terrible weight of internecine warfare. Kenya is the great economic success story of east and central Africa. It is leading the fight against terrorism in Somalia. We know now, given events over the past few weeks at the Westgate mall, how terrible a price the Kenyan people are paying for being at the front in that ongoing battle, but they have not wilted or split. Kenyans have remained united in the face of all that has been thrown at them by terrorists. It seems to me that we reward them by insisting that the President and Vice-President, who are leading them into what promises to be a very decent future, stand trial at the ICC, accused of hotly disputed offences that took place years ago.

People may well say that the ICC has an important role to play, and I would agree. They may say that it is not for us mere mortals to make judgments about evidence, and that there must be due process. They may say that politics should not play a part. I would say, however, that although it is not ordinary for politicians to intervene in judicial processes, the ICC is inherently political, as are its outcomes. It seems entirely appropriate that, at some points, when there are very significant political implications for a particular nation, it is for politicians and not civil servants to decide. In the same way, the Chancellor does not ask his civil servants to read out his Budget in the Chamber or ask them to lead the whole Budget process. In this case, it is for politicians around the world, including in the UK, fundamentally to make a decision. It is beyond the powers of civil servants, Government servants, or the international Government servants—whatever we call them—who run the ICC’s administration and procedures.

It is significant to note that all 32 indictees of the ICC have come from Africa. Eight African states have been involved, so I guess that is about four each. Initially, they were primarily from the Congo, and now a number are from Kenya. Four of those countries—it says this in Wikipedia, and I have also seen ICC officials saying it—referred cases involving their own people to the ICC. The ICC says, “Come on guv, you can’t blame us for taking action, because they were referred to us,” but that is where it becomes inherently political, because we put great pressure on those states to refer cases to the ICC. We cannot just hold our hands up and say, “Nothing to do with us, guv.” Clearly, we put enormous pressure on those states. Cases involving the Lord’s Resistance Army, for example, in Uganda, remain a cause célèbre—although less than they were, I suppose—and there are other cases.

Enormous pressure was put on those states, and they did what we asked, but now, because they did, they find themselves in a terrible bind. The only place that the ICC is able to act is Africa, and that is a terrible state of affairs. It cannot act in nations that are in the orbit of China—we all understand why—or of Russia, so the “stans” and the far east are out. Sri Lanka is out, obviously. India is out. Anything in the orbit of America is out. Obviously, Europe is out—we are not going to indict ourselves, are we? The United States did not sign up to the ICC originally, because it was concerned that former politicians might be arraigned in front of the ICC. It did not sign up for political reasons, and it still has not signed up for the same reasons. Of the five permanent members of the Security Council, the three most powerful have not signed up for political reasons. That takes out the great majority of the countries of the world, leaving those that are not considered to be strategically important, and—guess what?—are in Africa.

The Africans say, “This is the African criminal court, really, isn’t it? It is not an international criminal court at all.” The ICC says, “We are having a look at other cases,” but we know that it will not take action against FARC or anybody else in Colombia, for obvious reasons—because there is a peace process. It clearly will not take action, nor would I particularly want it to. Therefore, we end up with action being taken only against Africans, and even then only when political implications have been considered. In many cases, action has not been taken because of politics. Therefore, people who say that it is up to ICC officials are missing the point; it is fundamentally a political issue.

I shall not bang on forever, Mr Caton—other Members may wish to jump in—but I will say a little more. I suspect that at least one Government Member will correct me if I am wrong, but I recall that, when I arrived in this place, just before the final stage of the International Criminal Court Act 2001, the then Opposition opposed joining the ICC. It may be that they changed and voted to do so at the end, but I remember that, at the time, the argument in the Chamber was that the then Opposition—now the Government—strongly opposed it. They did so because they were concerned—I voted for and still support the ICC’s existence, but the concern was legitimate at the time—that soldiers, deployed as they are around the world, in all sorts of different places, might find themselves captured, not returned to the UK, and in front of the ICC. There was a deep concern about that.

Those fears were largely allayed, and clearly, the Government are a supporter. The fears have not come to fruition, because we are willing and able to try our own people. We show that and have actually done it, so there does not seem to be a great risk. I notice, however, that the Americans still have not signed up, so they clearly think there is a risk. There is at least one politician, famously—it would not be fair to say his name, but I think most of us know who it is—whom many lawyers have said might well be arraigned in front of the ICC. Even that one case, and the fear that others might happen in future, would stop the Americans signing up.

Such fear is significant. UK citizens are not more likely than anybody else to commit serious offences, but the concern was that it might become political, and indeed, I think that has proven to be the case, almost by default. It has not become political on purpose; it has become political because the ICC has been unable to be even-handed across the world, for strong political reasons.

I will not go through the entire history of the ICC, although I quite rightly could. However, it is worth reflecting on the principle of the ICC. I may have sounded very condemnatory of the ICC before, but the principle is entirely laudable. Obviously, it extends out of our experiences with more than one tribunal in the mid-part of the last century, just after world war two.

Photo of Gregory Campbell Gregory Campbell DUP, East Londonderry

I presume that the hon. Gentleman is about to embark on a discussion of the laudable principles that lie behind the conception of the ICC, and I agree that they are laudable. However, does he agree that principles are one thing but the practical outworking of what we have seen, which he alluded to in the earlier part of his contribution, is quite another, and that what we really need to see is a workable ICC that is trying to get itself divorced from the practical and political considerations that inhibit it from doing much of its work?

Photo of Eric Joyce Eric Joyce Labour, Falkirk

The hon. Member is absolutely bang on. His intervention was very thoughtful and considered, and he is absolutely right. The difficulty at the moment is to get past what is a very dangerous phase for the ICC. If the ICC gets it wrong and if the international community gets it wrong in respect of Kenya, the ICC will fall apart; I do not think that it will continue, in a meaningful sense, in existence. I know that there is concern among NGOs and experts, including lawyers, that if there were to be a discontinuation of the case against the President and vice-president of Kenya, that would effectively be the end of the ICC. I do not agree with that view. I will not put all the arguments as to why

I disagree with it. I simply think that that would not be the case. It would be more practically effective to find a way of dealing with the situation, which effectively means putting a case into abeyance, but I will say more on that at my conclusion. I have one or two more points to make quickly before then.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

The hon. Gentleman referred to the ICC and its credibility. The fact is that the Kenyan Government have decided to withdraw from the ICC and that there are cases pending at the court. How does he see the role for Government in trying to ensure that there will still be prosecutions, now that Kenya is no longer—at least on paper—part of the ICC?

Photo of Eric Joyce Eric Joyce Labour, Falkirk

I thank the hon. Member for his intervention. I think that the technical situation is that the case will continue even if Kenya withdraws, although my instinct is that it will be difficult to do anything in that situation. I suppose the ICC may criticise the President’s absence and then carry on with the trial. Theoretically, and it is pretty theoretical, the African nations that are considering withdrawing—I hope that they do not withdraw—would still be subject to any current cases involving them, although not to any future cases. So, for the moment the case against the President would continue. In a sense, therefore, it is academic whether Kenya has chosen to withdraw from the ICC or not, although I hope that it will come back in. I think that Kenya is making a very powerful statement, just as some other African states that are supporting Kenya’s cause at the moment are making a similarly powerful statement.

I will start to draw to a conclusion. I visited the ICC’s former chief prosecutor, Luis Moreno-Ocampo, in The Hague a couple of years ago, regarding a particular case; it is pertinent to this debate, so I hope that you will bear with me, Mr Caton. My concern at the time was that all these people being indicted were Africans, and I was concerned about one particular case. I was concerned about President al-Bashir, as a head of state, being indicted, but in particular I was concerned about a chap called Bemba, who was a Congolese leader indicted for an alleged crime in the Central African Republic. I spoke to Luis Moreno-Ocampo and I was with him for much of the day—strangely. He gave me a tutorial in how the ICC operated, and convinced me that he was doing his best and that the ICC was doing its best. It was taking a long time to get a prosecution. It has now had one successful prosecution, that of Thomas Lubanga of the Democratic Republic of Congo. Mr Moreno-Ocampo was very convincing and he convinced me that the ICC is indeed a good thing. There are clear difficulties, which the ICC recognises, in pursuing cases in the orbits of nations that do not fancy having the ICC in their own backyard, as I have described before.

Then, however, Mr Moreno-Ocampo was gone, and he has been replaced by the former Gambian Justice Minister. My instinct, although it is harsh to say it, is that, although I have no doubt she will be a very fine lawyer, that appointment in itself was a political nod—“We are only indicting Africans, so we will have an African in charge”. However, just to show the difficulty, she herself—I will not be critical of her personally but contextually—was the Justice Minister in Gambia. Gambia is not the most pure place on the planet. The last time that I was in Gambia, as we were driving to the airport there was lots of security around and we discovered that the President had just shot a whole bunch of prisoners, some of whom were political prisoners essentially. Gambia has its issues, so it seems to me that a political nod in a particular direction may have had the opposite effect to that intended. I think that the ICC recognised the need to make a political gesture, and to some degree therefore it accepts that the whole thing is a political process.

It seems to me that at the moment we tend, right across the board, to apply values straight from our desks and pop them straight down on to the desks of politicians and other leading folk in African states, without really considering the period of development that those countries are going through right now, as we speak. Just as I walked across here to Westminster Hall, I was reflecting—I am not quite sure why—on the fact that most of us would put our hands up and say, “Chemical weapons—bad thing.” However, as far as I can remember, we were developing chemical weapons into the ’80s. Chemical weapons became a bad thing in the ’90s, but I think it was still British military doctrine to use chemical weapons until just a few years before then. I remember that when I was a private soldier, troops alongside me volunteered to go to Porton Down to have chemicals put on their hands—I do not think that Porton Down was looking for a solution to the common cold—and that was in the ’80s.

We have now moved forward and we say that chemical weapons are a horror; Winston Churchill was a fan of chemical weapons, but now we say that they are a horror and it has taken us 15 or 20 years for us to get to that point. Now we say, “Here is a democracy in Africa and we expect you to uphold the same standards that we do here in all the same ways”, without trying to contextualise things. That is a tough gig, as the Africans become increasingly nationalistic, and pan-African nationalistic, if that is not too grand a phrase to use; I am not harking back to a slightly different phenomenon from 60 years ago. However, if Africans are in that zone and in many cases looking towards China rather than looking towards us, it is because there is a very strong taint of a kind of imperialist attitude.

My understanding—what I am about to say may be wrong, but I do not think that it is—is that the Kenyans have refused to accredit three diplomats; the would-be ambassadors from France, Germany and Belgium. I understand that that happened just a few days ago, and I also understand that the Tanzanians refused to accredit the new German ambassador, on account of the fact that she had invited—probably unwisely, because it was clearly a gesture on her part—the former Prime Minister, Raila Odinga, as a guest of honour for a wee party before she left. That was a clear statement, so the Tanzanians went, “That was a nice statement. Here’s another one—off you go.” So that was a neat political statement by a daft German ambassador—a former German ambassador to Kenya—but there is a lot of that going on.

During the election in Kenya, the American ambassador—everyone will have heard references to the British ambassador, which are not true—allegedly said, “Choices have consequences.” And the Kenyans went, “OK, then, so we will choose to do the thing you don’t want us to do, obviously.” The consequence was that the Americans got the person they did not want, ironically just as we got Jomo Kenyatta, who was originally not the guy we wanted. There it is—we handled it then and we handle it now.

To conclude—I have been going on rather a long time—I know that it is a difficult situation for the Government. They have to support the ICC; I have no question about that. I know that the Government are seized of the importance of maintaining the rule of law—as far as we can—but also of the importance of maintaining a strong relationship with a really important ally, for all the reasons that we all know; I will not rehearse them again. However, the fact is that there is a crux and if the crux is not properly climbed then the ICC will fall off and it will no longer be an effective and meaningful international force.

Just as a slight digression, I will say that it is possible for someone to spend five years in the ICC and then get found not guilty, as one Congolese chap did at the end of last year. So we suspend certain rules and assumptions—reasonably, because it is very hard to gather evidence—but we should remember that Jean-Pierre Bemba remains there. His trial is now in its third year and he has been there for almost six years, with no end in sight. If he is found not guilty, he will have spent seven or eight years in custody. If anyone tried do that anywhere else, we would say that that country was a dictator state. We have made allowances and allowed that to happen at the ICC. I am concerned about how long the process takes but I am not critical per se, because I know that it is very hard to gather evidence and to argue the case when we are talking about certain countries, such as the Central African Republic. In this case, it is for the politicians to make a political decision to take the matter out of the hands of administrators and to put the case against President Kenyatta and Deputy President William Ruto. That would give the Kenyans a fair crack of the whip at a time when they really need our support.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee 10:00, 9 October 2013

This is an interesting and important debate. I am chairman of the all-party parliamentary groups on Kenya and on Uganda and, as chairman or secretary of various other all-party groups, I have been much involved in all matters relating to east Africa since the 1980s. I have a strong sense that that part of the world is extremely important both in its own right and in relation not only to the United Kingdom but to the world as a whole. Economically, it is one of the fastest-growing areas in the world and, as with all countries—and I exclude none—there is a process of evolution and a necessity to ensure that justice and fairness prevail.

At the heart of all this lies the question whether domestic matters should be adjudicated by a methodology applicable through international law when the better route could well be to have them dealt with in the country in question. That important issue is illustrated by the fact that in many, many countries in the world—I do not need to set them all out, but Vietnam is a case in point—terrible things happen. There are civil wars. We had a civil war, as did the United States, and there are times when innocent people get caught up. We have a vast range of civil wars going on all over the middle east; it is a very disturbing picture. Not unnaturally, people will attribute blame to individuals who have been involved in the process, but it is an unwise person who makes assumptions about who was responsible for any particular causal event or incident.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

One concern is that if the ICC case collapses, and there is every possibility that it might, the credibility, security and safety of the witnesses that have been called come into question. Does the hon. Gentleman share my concern about those independent witnesses who may feel under threat if the case collapses?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

I certainly do. There must be a significant review of the methodology that is applied in relation to the ICC process, which can be encapsulated in an expression from Maine’s “Ancient Law” that says that justice is to be found in the interstices of procedure. It sounds grandiloquent, but it is extremely important given the incredible number of events that are taking place. We have to look at not just what is happening in countries such as Syria, where people from both sides commit atrocities all the time, but the motivation for such atrocities and the extent to which they are politically driven. Some would argue that the use of atomic weapons or chemical weapons is a matter where distinctions need to be drawn. It could also be said that all weapons of mass destruction should automatically be regarded as of one kind, which they are not.

In relation to the terrible events that took place in Kenya some years ago, the methodology that was applied in the prosecution and indictment is a matter that requires very careful consideration. There are good grounds, I believe, for taking a step back and looking at the matter again, taking into consideration the evidence and who is responsible for the conduct of the prosecution and the manner in which it is being deployed. It is also extremely important to bear in mind that the most incredible sensitivities will arise, and have arisen, which may lead to the African Union and other individual countries, many of which I am familiar with, withdrawing from the ICC.

There are several issues to be considered. One relates to justice, fairness and the question of procedures and methodology. Another relates to the impact of what is being done in relation to the African Union and individual countries there, and the extent to which they are taking a position, which, to say the least, is radical. Then there is the question whether the matter should really be dealt with in domestic courts. Is there the political impetus to prosecute a Head of State or one or two people when the evidence could as well be addressed in a domestic arena?

I was shadow Attorney-General for several years, and have always had certain reservations, to say the least, about the assumptions that lie behind some human rights trials. I will not enlarge on that, but what I will say is that with the massive number of conflicts and potential conflicts in the middle east—in countries such as Egypt, Libya, Syria and Tunisia—Somalia and elsewhere in Africa, a complete analysis of the whole matter is required. In addition, some of the most significant countries, not only numerically but in terms of power and influence, are not members of the ICC. How can we have a system of justice that is based on differentiation between those countries that are not involved in the process because they have not signed up, and others that are? There are so many interwoven complexities that it makes me seriously wonder about the whole question of justiciability and the methodology that lies at the heart not only of the procedures but of the underlying consequences of the ICC system.

I do not want to say any more, because I want everyone to stand back and ask themselves some central questions. The Minister, for whom I have the highest regard, has a very difficult task here. I have raised the matter with the Foreign Office, both after and in the run-up to elections, because I was concerned about the politicisation of what could be regarded as a matter of domestic legal process. Justice and fairness are key, and how we arrive at that, and whether the ICC can do so in this case and in many others, is a very big question. I will rest my argument there, but I shall continue to pursue such questions, because I believe that fundamental issues arise for not only us, but many other countries.

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs) 10:10, 9 October 2013

It is a pleasure to serve under your chairmanship, Mr Caton. I commend my hon. Friend Eric Joyce for calling this debate, which has been very interesting. The speeches and interventions have added to our consideration and understanding of an intensely difficult issue. Although I will be seeking to find out the Minister’s position in due course, I do not envy his having to respond on so difficult an area, but such difficult questions are those faced in government. This reflective debate will assist us in analysing the difficult questions that international politics currently involves.

From what my hon. Friend said, he clearly understands about the security and the importance of Kenya. He has great respect for the Kenyan people, who are looking at the issue extremely closely. I know from communications I have received that the matter is of profound import. We have also heard from Mr Cash, who has a particular role in the all-party group on Kenya.

Kenya always provokes interest because of our long-standing link with it and its people, and because of its significance in what, at the moment, is an important part of north Africa. Some of the biggest political issues on the planet are being played out in complex geographical areas across north Africa, with cultures, faiths and economies colliding and causing enormous issues. We must grapple with those issues if we are to make progress. Kenya, whose relationship with the UK is massively significant, is hugely important in that regard, for instance in addressing the difficulties in Somalia and the horn of Africa. That cause has been carried out at great cost to the people of Kenya over several years, most recently, of course, in Nairobi. The country is strategically important, and we all want it to be a strong international player.

Before I turn to Kenya’s membership of the ICC, I want to refer, as other Members have, to the dreadful recent attack in the Westgate shopping centre. Right across the world, the focus has been on Kenya because of what happened there. The confirmed death toll was 61 civilians and six security officers, and Britons were among those killed. Our thoughts are with all those affected by these tragic events. We must of course support the Kenyan Government in showing leadership in dealing with a problem that, as I have said, transcends the borders and boundaries of countries across the world, but is a specific issue across north Africa.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Does the hon. Gentleman accept that there is a massive dilemma in what he says? On the one hand, we want to support the Government of Kenya, but on the other hand, are we to encourage the prosecution of the Kenyan Head of State in the International Criminal Court? That is the simple dilemma, but it is not only a dilemma: the question is whether justice and fairness are at the root of the matter. In my opinion, that is as yet uncertain and, in fact, I am deeply worried about it.

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs)

The hon. Gentleman makes an excellent intervention, and puts the difficult question very well. It is, however, important to remember that Kenya has chosen to be a member of the International Criminal Court. If it withdraws, it will leave an international institution that it chose to join. As we have already heard, several countries have refused to join the International Criminal Court. If we are a member of an institution, we have to accept that it has rules that it must apply to its members without fear or favour. The reason why we need to support the Kenyan Government is that they face the very difficult situation caused by the Westgate shopping centre attack, but equally, the fact is that Kenya chose to be a member of the International Criminal Court and, as a consequence of decisions made in Kenya, the court has been seized of the case and is proceeding with it.

To return to the Westgate shopping mall, rigorous inquiries are taking place, and must continue to do so, into the circumstances leading to the attacks. We need to support the Kenyan Government in their taking steps to bring those involved to justice and to ensure that such an incident does not recur. We must also, however, conduct rigorous inquiries into the perpetrators of the violence that followed the 2007 election, because we cannot take action in one area, but not in another, and I therefore turn to the Kenyan Government’s possible attempts to withdraw from the ICC.

We must reflect on the violence in 2007, when, as we have heard, more than 1,000 people were killed and 600,000 people were displaced. The investigations into the violence culminated in the ICC bringing charges, including against the Kenyan President, of crimes against humanity and of orchestrating ethnic violence. For that reason, charges have been brought against President Uhuru Kenyatta and Deputy President William Ruto.

Photo of Eric Joyce Eric Joyce Labour, Falkirk

I do not dispute my hon. Friend’s earnestness and his argument, but can he imagine a situation in which the UK Prime Minister is held responsible by the ICC for some terrible cataclysm? Does he think that we would agree to send the UK Prime Minister to The Hague?

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs)

That would be massively controversial, but we are a member of an international institution. We are discussing international problems, and the world has to deal with more and more internationally connected issues every day: events in Africa profoundly affect our constituencies in the UK. Far from this being a time for us to withdraw from international action, we should be more involved. If we submit ourselves as a nation to the authority of the International Criminal Court, we must accept that that court has jurisdiction. Such an issue would be difficult and many in the United Kingdom would not want to accept the court’s jurisdiction, but if we have submitted to the court through legislation, as has been mentioned, we must accept the consequences. We cannot duck out when it gets difficult; we must accept that such difficult issues need to be addressed, as they should be by the nations involved.

It is a difficult problem of that sort—nobody pretends that it is not difficult—that we now have to address. The Parliament of Kenya is dealing with the difficulty that, in the hypothetical case mentioned by my hon. Friend, might apply in the United Kingdom. The two politicians are not the only individuals facing charges. I understand that the ICC has also issued an arrest warrant for a journalist called Walter Barasa for offering bribes to prosecution witnesses in the trial of Deputy President William Ruto. However, I believe that this trial is the first time that sitting leaders have been tried before the Court.

In September 2013—last month—Kenyan MPs, having tabled a motion, voted to pull out of the ICC, and a Bill is likely to be introduced. The withdrawal will still have to pass through Parliament and could take more than a year to come into effect. The ICC will in the meantime continue with the trials of the President and the Deputy President, but if Kenya does pull out, no charges will be able to be brought in this way in the future.

I listened very carefully to the hon. Member for Falkirk and I am aware, of course, of the perception that exists in Africa, linked to the United Kingdom’s role on the continent—its “imperialist past”. Although I respect the hon. Gentleman’s views, I cannot agree with him in this case. I have to say to him that this is about the creation of international institutions and dealing with the very difficult issues to which the hon. Member for Stone referred. We talk about what is happening in Syria, Egypt, Somalia, and Mali. All these matters have in some way involved international capacity and interventions, whether they be military or non-military interventions, in different places at different times. The process of dealing with the problems has been one of using international institutions, because these are international problems.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

I am getting slightly worried; in fact, I am getting very worried about the line of route of the hon. Gentleman’s argument. I referred to civil wars and the total chaos that there is in the middle east and in parts of north Africa. Is he seriously suggesting that, ultimately, all these matters, because they have an international dimension, should, given the competing claims and counter-claims made by people who are engaged in political processes, be dealt with in an international court? We would spend all our time, and without any beneficial result, arguing about the legal questions, which are essentially political, tragic as they may be. I do ask the question.

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs)

I was not specifically, in the context in which I was speaking, talking about the International Criminal Court. I was talking about international problems being dealt with through international institutions. The

United Nations and the Security Council of the United Nations are the most obvious example. I was making the general point that international institutions and countries, working together, need to deal with international problems, which manifest themselves within individual countries.

We know that in north Africa, for example, many of the things that have caused major problems in the region have involved groups of people crossing borders at different times. Those borders are often ill defined and not policed in any way. Mali would be one example, and Somalia and Kenya are another. I am talking about a collective approach, through organisations such as the United Nations, and a progression of that. I am saying that, in particular cases, the use of the International Criminal Court is appropriate. For that reason, when countries choose to join the ICC process, it is appropriate that we, as a country that has also submitted itself to that process, support the process.

I think that we need to respect the role of the ICC and international principles of justice and democracy and apply those principles in the future, so I would be extremely concerned about the implications of Kenya withdrawing from the ICC if Kenya were to withdraw, because that would be a step away from dealing with very difficult, shared problems in a collective way. It would be a step backwards, because it would be a step towards more isolation. Ultimately, that would bring about a lower level of capacity to solve the problems that we want to address.

Photo of Eric Joyce Eric Joyce Labour, Falkirk

I thank the hon. Gentleman for giving way again; this will be my last intervention. Kenya will not be isolated, because all the African Union countries will come out of the ICC and it will fall apart. Who knows what will happen soon? I hope that it does not happen, but the risk is that the Kenyans, the Ugandans, the Tanzanians, the Rwandans—most of the African states—will, very sadly and against their own instincts, come out en masse. That is the great risk.

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs)

The real challenge is that if African countries did that collectively, that would lead to a rupture in the relationship between African countries and other countries, which would be deeply worrying and sad.

Photo of Eric Joyce Eric Joyce Labour, Falkirk

Countries that are not members, such as America.

Photo of Ian Lucas Ian Lucas Shadow Minister (Foreign and Commonwealth Affairs)

Well, the United Kingdom is a member and has a very long-standing commitment to the ICC. For that reason, this is a difficult time; people are working through a difficult issue. That is why we should be supporting the ICC at this time, rather than saying that when the going gets tough, we opt out. In those circumstances, the institution will never make any progress. What is needed is for the process to continue and for dialogue to continue. We must support the development of international institutions. Having agreed to set up the ICC and having become a member, if we do not support it when the pressure is on, the institution will never make any progress. It is clear that if that is the case, we will have one less weapon in our armoury to deal with the hugely difficult international problems that we face.

I know that there is a great deal of concern and worry about the ICC proceedings relating to Kenya and that that is affecting our relationship with Kenya. It was inevitable that that would be the case. It is cast into even sharper relief by what has happened in Nairobi in the last month. The hon. Member for Stone has, legitimately and properly, pointed out the practical concerns that are presented by the dilemma that the Government face.

I shall therefore ask the Minister a few questions that he can consider in his response to the debate. First, what does he consider would be the implications of Kenya withdrawing from the ICC? What is his assessment of the position more broadly of African countries on the question of the ICC proceedings against Kenya at the moment and what steps they might take in the months ahead? What specific discussions has he had concerning the operation of the ICC process, and what steps has he taken to try to resolve the dilemmas that we have discussed?

I know that this is a very difficult problem for the UK Government. I know that they will address the problem with rigour, but I do think that engagement is extremely important in the time ahead. We need to remember that Kenya has in the past chosen to be a member of the ICC and it is for that reason that the Court is seized of this issue in the first place.

Photo of Mark Simmonds Mark Simmonds The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs 10:29, 9 October 2013

It is a pleasure to be under your chairmanship and guidance this morning, Mr Caton. I congratulate Eric Joyce on securing this important debate, and on his continued interest in and knowledge of Africa, and Kenya in particular. I thank him for referring to the importance of having a detailed knowledge and understanding of the significant bilateral relationship, historically and today, between the United Kingdom and Kenya. I also thank my hon. Friend Mr Cash, who has significant knowledge and experience of east Africa and Kenya, and who shows a continuing energetic commitment to improving the lives of those who live in Africa. My hon. Friend and the hon. Members for Falkirk, and for Wrexham (Ian Lucas), powerfully articulated the complexities and sensitivities of the issue.

I will endeavour to address all the points that have been raised. First, I will take stock, as the hon. Member for Wrexham did, of our wider bilateral relationship, particularly in the aftermath of the horrific terrorist attack on the Westgate shopping centre in Nairobi on 21 September. I am sure that the whole House will join me in re-emphasising our deep sympathy and profound condolences to the Kenyan Government and people, and to the other countries affected by that abhorrent act. As the Prime Minister has said, it was a sickening and despicable act of appalling brutality.

Hon. Members may have spotted that yesterday my right hon. Friend the Foreign Secretary laid before Parliament a written statement setting out the UK Government’s response to the crisis. On the day of the attack, the Prime Minister spoke to President Kenyatta, and I spoke to the Kenyan Foreign Minister, Amina Mohamed, to express the UK’s solidarity and to offer assistance. The UK has provided assistance at the scene in identifying victims and collecting forensic evidence. We have also provided medical supplies and rations to the Aga Khan university hospital, where many of the wounded were taken.

We are determined to work with Kenya on the shared challenge of addressing regional terrorism and building stability in Somalia. The close co-operation and understanding that underpin the UK response to the Westgate attack is a reminder that the UK and Kenya share many priorities and interests. The relationship between the countries today is one of partnership, shared mutual interests and shared concerns, through being members of the Commonwealth, through strong commercial security and through personal ties. The UK is the largest commercial investor in Kenya and the second-largest trading partner, with bilateral trade worth more than £1 billion a year. Thirty thousand British nationals reside in Kenya, and 180,000 British nationals visit Kenya every year. Kenya is also one of the largest bilateral recipients of DFID aid, with the UK contributing £135 million annually in support of Kenya Vision 2030. Our projects tackle conflict, increase stability and improve education and health care.

I have read what the hon. Member for Falkirk said in a similar debate that he secured in March. In that debate, he highlighted the fact that we have a strong defence and security relationship. The British Army trains 10,000 British soldiers in Kenya every year, which benefits not only the UK but the Kenyan defence forces and the wider economy. We want that co-operation to continue and develop for the mutual benefit of the UK and Kenya.

Before I move on to specifics about the International Criminal Court, I will address a couple of points that arose in interventions on David Simpson rightly raised the importance of trying to reduce, if not eradicate, corruption in Kenya. Department for International Development programmes are involved in supporting greater transparency and accountability at national and county level. The hon. Member for Falkirk mentioned the Mau Mau settlement. It is important to understand that that did not constitute reparation; it was a settlement of claims that recognised the pain and suffering experienced by people on all sides during those events many years ago.

At the heart of our relationship with Kenya is counter-terrorism engagement, through which we assist Kenya in defending itself and countering cross-border security threats, many of which stem from Kenya’s leading role in the African Union Mission in Somalia. Kenya made significant sacrifices during that mission in its attempts to secure peace and stability in Somalia, and we recognise and welcome the significant contributions that Kenya and others have made.

I turn to the issue at the heart of the debate, namely the International Criminal Court. I think it would be helpful if I briefly set out what the ICC is about and why it is so important before I address some of the complexities and sensitivities involved in the issue that we are talking about. The UK and Kenya are among the 122 countries that are signatories to the ICC’s founding Rome statute. Of those countries, 34 are African states; that is the biggest bloc anywhere in the world. As the hon. Member for Wrexham pointed out, we strongly support the ICC’s work around the world as an impartial, independent guardian of the rule of law. It is a court of last resort for the most serious crimes, including genocide, war crimes and crimes against humanity. It takes up cases only when national authorities are unable or unwilling to do so. It provides no immunity for those in positions of power, even Heads of State—a point that has been made powerfully. That universality is one of its strengths. It plays a vital role in ending impunity, holding perpetrators to account and delivering justice for victims.

In July, my right hon. Friend the Foreign Secretary launched the Government’s ICC strategy, which sets out our thinking on how we can ensure that the ICC retains its independence—that is vital—delivers justice, increases its membership, builds more support for its decisions from states and the UN Security Council, gains wider regional support and completes its work more efficiently.

As I have said, the ICC will take on cases only where national authorities lack the capabilities or the will to undertake prosecutions, as was the case in Kenya. The UK is committed to helping to provide training and mentoring to national authorities to help them develop their own laws and systems.

The hon. Member for Falkirk powerfully highlighted the common perception that the ICC is anti-Africa, and I want to address that point. In Africa, the Court is working tirelessly to deliver justice for millions of Africans who endured appalling treatment at the hands of fellow Africans. African states have been some of the most important supporters of the creation and effective functioning of the ICC. African states played an active role in the negotiations that led to the establishment of the Court, and 22 African countries were among the founding ratifiers of the Rome statute. Interestingly, the first and most recent states to ratify the Rome statute, Senegal and Côte d’Ivoire, were African. The majority of African Union member states—34 African states—are now ICC state parties. It is important to recognise that Africans are among the highest level of ICC officials, and they serve as judges and prosecutors at the Court.

The ICC investigates situations, not people, and only after situations have been investigated do prosecutions occur. Suggestions that the ICC focuses solely on Africa do not tell the full story. Preliminary investigations are already under way in cases outside Africa, including in Afghanistan, Colombia, Georgia and Honduras. The majority of cases brought against Africans have been lodged with the ICC by Africans.

I turn to specifics that all hon. Members raised about the ICC and Kenya. Of course I accept that the topic is controversial and sensitive, and creates difficulties for the Kenyan Government, but after the appalling post-election violence in 2007-08, many believe that justice is essential for national reconciliation and healing, and that the trials must continue to give the victims and the accused access to justice. We should remind ourselves of the numbers involved. I underline the figures that hon. Members have mentioned: more than 1,000 people were killed; 3,000 people suffered serious sexual violence; and more than 600,000 people were displaced. We strongly welcome the Kenyan Government’s co-operation with the Court and urge them to continue to co-operate, as they have pledged to do.

The UK Government recognise that President Kenyatta and Deputy President Ruto have constitutional obligations and important responsibilities at home, as the Westgate attack illustrated so graphically. We therefore believe that the Court’s decision to alternate the trials of the President and Deputy President, to ensure conformity with the Kenyan constitution, and to agree a short delay to allow Deputy President Ruto to take part in the Kenyan Government’s response to Westgate, showed welcome pragmatism.

The hon. Member for Wrexham raised the issue of witness intimidation. We remain deeply concerned by reports of witness intimidation, and call on all state parties to assist the Court in preventing it. That would mean Kenya responding to the arrest warrant the Court issued last week.

The hon. Gentleman also raised the issue of the Kenyan Parliament’s vote in support of a motion to withdraw from the Rome statute. We must be clear: it is for Kenya, as a sovereign country, to decide whether to withdraw. We, of course, very much hope that it does not. Withdrawing from the Rome statute would not remove Kenya’s obligation to co-operate with the Court on the current investigation, as the hon. Members for Falkirk, and for Wrexham, pointed out. The UK Government support the process, but we are clear that it must be recognised that defendants remain innocent until proven guilty. It is for a competent court—in this case the ICC—not the UK or any Government or individual, to pass judgment. The strength of the Court lies in its independence, and its processes are, rightly, independent of the UK. I do not share the analysis of the hon. Member for Falkirk that the Court process is political, not judicial; it is very clearly a judicial process. We are determined to ensure that the UK’s support for international justice and the ICC does not jeopardise our wider bilateral relations with Kenya.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Is the Minister entirely satisfied that the methodology and process adopted in respect of President Kenyatta and Mr Ruto has been followed in what one would objectively regard as the appropriate manner?

Photo of Mark Simmonds Mark Simmonds The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs

As I said earlier, the ICC only takes up matters when the country in question does not put in place the requisite judicial process to allow relevant prosecutions or investigations to take place. Specifically, the Waki commission, to which the hon. Member for Falkirk referred, gave the Kenyan authorities time to put in place the necessary and appropriate structures to deal with the judicial process, as it relates to the terrible atrocities that occurred in 2007-08. It is only because the Kenyan authorities did not do that at the time that the matter was referred to the ICC.

There are seven cases before the ICC, including the Kenyan issue. Of the other six, four were referred to the Court by Africans themselves, and two were referred by the UN Security Council. The hon. Member for Falkirk raised the issue of the speculation that the African Union summit could result in some states withdrawing from the Rome statute. He will not be surprised to hear that I will not engage in speculation, but I shall make two points. Although there is a perception that the ICC is focused only on Africa, there is a broad range of views, as there would be in the UK, across the African Union. Only a couple of days ago, 130 groups from across Africa called for not only sustained but greater co-operation with the ICC. He will not be surprised to hear that we urge African states to continue their support for the Court, and encourage those African states not party to the Rome statue to consider ratification or accession and other ways that they can support the Court’s work. African support and expertise continues to be vital to enable the Court to fulfil its mandate of delivering justice for victims and tackling impunity.

I am the first to acknowledge that the Court is a young institution. The UK is among those, not only in Africa, but elsewhere, who would like to see improvements. My hon. Friend the Member for Stone made a powerful point about other countries around the world that are not signatories to the Rome statute, and the terrible atrocities in Syria, which we have seen on our television screens. I am sure that he is aware of the UK Government’s position: those who perpetrated those horrific crimes should face justice.

Before I conclude, I shall reflect for a moment on the Kenyan elections in March. The Kenyan people and politicians need to be congratulated on the peaceful nature of the elections, which was in stark contrast to the violence which marred the election in 2007-08. That demonstrated the determination of the Kenyan people to express their democratic right to elect a Government of their choosing in an environment free from violence and intimidation. Kenyans should be proud of that significant achievement. The UK played a role in supporting the democratic process, including by providing £16 million to support free and peaceful elections. The UK position has been consistent and clear: it is for the Kenyan people to elect their leaders and for the courts to resolve any disputes that stem from the election process.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Is the Minister willing to continue this dialogue after the debate, in light of my remarks regarding my uncertainties about the manner in which the ICC goes about a lot of its business?

Photo of Mark Simmonds Mark Simmonds The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs

As always, I am happy to talk to my hon. Friend about his views. I will of course be pleased to hear how he thinks the ICC could work better.

The UK-Kenyan relationship is significant, and we want it to continue to develop. We want trade to grow. We want more UK companies to invest in Kenya and more Kenyan entrepreneurs and businesses to invest in the UK. We want to strengthen our partnership in a range of areas, from counter-terrorism co-operation to defence matters, as well as help, through Department for International Development programmes, to alleviate poverty, build capacity and assist those in Kenya who are less fortunate than all of us here today. However, the UK also supports the ICC. We acknowledge, respect and welcome President Kenyatta’s pledge to respect Kenya’s international commitments and to continue co-operation with the ICC.