International Criminal Court Bill [Lords]

HC Deb 03 April 2001 vol 366 cc214-79

Order for Second Reading read.

5.22 pm

The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook)

I beg to move, That the Bill be now read a Second time.

At the outset, I remind the House that the Bill has attracted wide support and interest around the country. Non-governmental organisations from Amnesty International to the Red Cross and Save the Children have all supported it. Some of those organisations will have tuned in at 3.45 pm in order to follow the proceedings of the House. I have to say that they will have viewed with incomprehension the proceedings they have watched for the past hour and a half, which have correspondingly reduced the time available to debate this historic step on international justice.

Mr. Eric Forth (Bromley and Chislehurst)

Rubbish.

Mr. Cook

If the right hon. Gentleman wants to continue to decry the views of those organisations, I warn him that, from what I know of Bromley, it is precisely the place where many members of Amnesty International, the Red Cross and Save the Children live. I hope that those members saw the gesture that he made as he dismissed his constituents' views.

There could be no more appropriate week in which to consider the Bill on International Criminal Court ratification. Only three days ago, ex-President Milosevic was arrested. He is today in prison—a fate far better than that which befell the many thousands of victims of his wars in Croatia, Bosnia and Kosovo.

There could be no clearer case for the need to achieve international justice than that of Milosevic. We have all seen the harrowing photographs of his victims: the starved prisoners of the concentration camps in Bosnia; the families burnt when their homes were fire-bombed in waves of ethnic cleansing; the hundreds of thousands of Kosovars fleeing terror; and the corpses of the men of an entire village, whom I saw where they had fallen herded together in a farm outbuilding to be massacred by paramilitaries.

I warmly echo the statement by President Kostunica that Milosevic's arrest proves that no one is above the law. Ex-President Milosevic has been arrested for his crimes against the Serb people. I believe that it will be valuable for the Serb people to learn the scale on which Milosevic looted their country; that he made himself rich while he made them poor; and that he rigged their elections and abused the power that came with the false results.

Milosevic was not a great nationalist, but a great enemy of the Serb people. I therefore support Milosevic being charged and tried for his crimes in Serbia, but that can be no substitute for a trial of Milosevic for his atrocities against the other peoples of Yugoslavia. As soon as Milosevic has submitted to legal process for his crimes in Serbia, he must be surrendered to the tribunal in The Hague to face justice for his crimes against Bosniacs and Kosovars. I urge the Government of Serbia to make that day more certain by serving Milosevic with the indictment drawn up by the war crimes tribunal.

What makes the case of Milosevic unusual is the fact that there is an international tribunal to pursue justice throughout the former Yugoslavia. Apart from Rwanda, no other part of the globe has an international mechanism to call dictators to account.

Mr. Menzies Campbell (North-East Fife)

Does the Foreign Secretary agree that it would be entirely wrong to see proceedings against Mr. Milosevic in Serbia on the basis of allegations of corruption and fraud as in any way a substitute for his appearance in The Hague on the basis of indictments consisting of allegations against him in respect of crimes against humanity? It should not be thought, should it, that an appearance in Serbia will somehow constitute a tholing of his assize?

Mr. Cook

I entirely agree. I have said that on a number of occasions over the past three days. I think that what is happening now can serve as a useful step along the road, ensuring that more people in Serbia understand the importance of handing Milosevic over for trial in The Hague. It can, however, be only one step along a road whose end must be in The Hague, where Milosevic must stand trial for his wider atrocities.

As I was saying, it is only in the former Yugoslavia and in Rwanda that such mechanisms are available. There is no institution to bring to justice the Idi Amins or the Saddam Husseins, and there is nowhere for the victims of their crimes to seek redress before the law. That is the case for a standing international criminal court.

Both international criminal tribunals are providing a valuable remedy for crimes against humanity, but months if not years were lost in devising the structure of those tribunals and drawing up the rules of procedure. That is the case for a permanent centre of legal expertise and agreed procedures.

I began by referring to the wide support for the Bill throughout the British community of non-governmental organisations. There is also support from the legal community that is as near to being universal as is possible among lawyers. Even the Opposition have hitherto expressed enthusiastic support for the establishment of an international criminal court. The hon. Member for Chesham and Amersham (Mrs. Gillan), who speaks from the Front Bench most frequently on the issue, is on record as saying: I have mentioned our broad support for the court, support the Conservative party has offered for decades. We have always supported the principle, and shall continue to do so by helping the Minister in any way that we can."—[Official Report, 27 October 1999; Vol. 336, c. 945.] The Opposition now have an opportunity to prove how helpful they wish to be.

Mr. Gerald Howarth (Aldershot)

As the Foreign Secretary knows, I represent Aldershot, which is the home of the British Army. Perhaps he can tell us what support there is for the Bill among senior service men, and what reservations any of them may have entered, privately or otherwise.

Mr. Cook

The hon. Member for Chesham and Amersham has been helpful by asking my right hon. Friend the Secretary of State for Defence what representations he has received from the armed forces. He answered, on 16 March, "None." I refer the hon. Gentleman to that answer, which continues: The priority of the Ministry of Defence in the drafting of the … Bill and its passage through Parliament has been to ensure that members of the armed forces are fully protected from malicious or ill-founded prosecution … The armed forces have been closely involved in the consultation process. I am confident that the Bill … provides all necessary protection."—[0fficial Report, 16 March 2001; Vol. 365, c. 756W.] I hope that that reassures the hon. Gentleman.

Mr. Howarth

I am grateful to the Foreign Secretary, but can he tell us what reservations the British Government intend to enter, as, for example, the French Government have?

Mr. Cook

I remind the hon. Gentleman that there is no provision in the statute for reservations. The French Government made a declaration; we have not yet resolved the question of whether we would wish to make one, but such a declaration would of course have no legal effect.

Mr. Julian Brazier (Canterbury)

Will the Foreign Secretary give way?

Mr. Cook

I will, but then, if the hon. Gentleman will forgive me, I must make progress.

Mr. Brazier

Can the Foreign Secretary confirm that, under the treaty as it now stands, if the prosecutor, who appears to be answerable to no one and who is appointed for a fixed nine-year term, decides that a member of this country's armed forces has not been sufficiently or satisfactorily investigated by our own criminal justice system, military and civilian, that prosecutor can decide to pursue a case against that member of the British armed forces?

Mr. Cook

The hon. Gentleman is wrong in his understanding of the statute on that matter. The prosecutor can launch such a prosecution only if he or she can sustain a case that the case was dropped in order to conceal or to protect someone against whom there was a bona fide case. However, it would not be the decision only of the prosecutor. The British delegation to the Rome negotiations had written into the statute the provision that the prosecutor can launch an investigation—let alone a prosecution—only with the approval of the pre-trial chamber of judges.

Indeed, when we reported that outcome of the Rome conference in 1998, the Conservative spokesman in the other place, Lord Kingsland, described the pre-trial chamber as a great achievement which will wash out of the system any bogus allegations."—[Official Report. House of Lords, 20 July 1998; Vol. 592, c. 626.] I hope that that will be of comfort to members of the same party as Lord Kingsland.

It requires 60 countries to ratify the Rome statute before the International Criminal Court comes into existence. The passage of the Bill will put Britain in the first 60. That is important not just because we will have helped to bring the court into existence, but because those that have ratified are the only countries with a say in setting up its procedure and appointments. As a country that had ratified the statute, Britain could nominate candidates, vote in the elections of the prosecutor and judges and have a say in the adoption of the procedural rules.

Britain has a long tradition as an architect of legal innovations. The most recent example was the Lockerbie trial, where we created legal history by mounting a trial under Scottish Law in a third country. Britain has much to contribute to ensuring that the International Criminal Court gets off to the best and most sound start, but it is plainly in our own national interest to be there when the crucial decisions are taken; for our own judges to be eligible for election to the bench; and for us to have a say in who that prosecutor will be.

Mr. Donald Anderson (Swansea, East)

Would my right hon. Friend like to consider not only what a blow it would be to our national interest, but what view the other countries would take if, having played such a leading part in the formulation of the statute, we were to resile as a result of party games in this place?

Mr. Cook

My right hon. Friend helpfully brings me to a point that I wish to stress. The Bill reflects the statute negotiated at Rome. In the negotiation of that statute, the British delegation played an important role in securing the changes that we wished to see. I pay special tribute to Sir Franklin Berman, the legal adviser at the Foreign Office, who led the British delegation and who deployed his great expertise as an authority in international law to secure a number of improvements that strengthen the Rome statute.

Those included steps that widen the remit of the court. First, the definition of war crimes now applies to internal conflicts, not only to wars between states. That was a highly significant amendment to secure as there have been few wars between states in the past generation, but all too many conflicts within states. Often, such ethnic civil wars produce the most savage crimes against humanity.

Secondly, the offences before the court now include crimes of sexual violence, such as the use of mass rape as an instrument of ethnic cleansing. The British delegation was also instrumental in supporting the power of the court to try those responsible for forcing children into combat.

Mr. David Winnick (Walsall, North)

Apart from all the mass murderers since 1945, is it not a fact that, if such a court had been in existence straight after the war, many Nazi war criminals and mass murderers who carried out the most horrifying crimes on behalf of the Third Reich would have been caught and tried? Instead, many of them got to the west or to Latin America and escaped scot free.

Mr. Cook

My hon. Friend makes a valuable and important point. At that time, we did not have a standing mechanism for implementing international justice. Moreover, the time that is lost as the Security Council resolves to establish such a mechanism is valuable time in which evidence can be destroyed and those who are accused can disappear.

Dr. Julian Lewis (New Forest, East)

I am grateful to the Foreign Secretary for giving way, and I think that my intervention will not come as a complete surprise to him. I have always supported the principle of what the Government are trying to do with the court. However, could the right hon. Gentleman please advise me why—although the former Minister of State, Foreign and Commonwealth Office, the hon. Member for Neath (Mr. Hain) wrote to me to say that there was a strong possibility that the Government would be making representations to the new Government of Syria on the continued sheltering of the worst Nazi war criminal still at large, Aloȹs Brunner—in February, I was given yet another stonewalling response from the Foreign and Commonwealth Office saying that nothing had been done and that nothing was going to be done? Will the Foreign Secretary please make those representations?

Mr. Cook

I am not sure that I would accept the hon. Gentleman's characterisation of stonewalling. The issue of Mr. Brunner's existence has been raised on many occasions with the Syrian Government, most notably by France, which is the jurisdiction within which he has been convicted. On all occasions, the Syrian Government deny all knowledge of him or suggest that, in so far as they have knowledge, he is dead. If the hon. Gentleman can furnish me with fresh evidence with which I can challenge that assertion by the Syrian Government, I would be very happy to do so.

Ann Clwyd (Cynon Valley)

Will my right hon. Friend give way on that point?

Mr. Cook

I shall give way to my hon. Friend, and then I must make progress.

Ann Clwyd

My right hon. Friend is making a very important point. Although I very much welcome the establishment of the International Criminal Court, its powers will of course not be retrospective, and my right hon. Friend is making the point that very valuable time will be lost. However, United Kingdom courts already have jurisdiction over crimes—including the crimes of torture and of hijacking—that are committed outside the United Kingdom by non-nationals. Earlier, my right hon. Friend said that Saddam Hussein could not be tried by a future international criminal court for past crimes. He could, however, be tried under the other system. Why have the British courts not taken action against leading members of the Iraqi regime who are responsible for hijacking and kidnapping British citizens in Kuwait?

Mr. Cook

Of course we will pursue any practical or reasonable way of bringing Saddam Hussein to justice. Currently—perhaps regrettably—the prospect of Saddam Hussein being held to account within British jurisdiction is highly theoretical and I do not anticipate circumstances in which he would enter our jurisdiction. However, although my hon. Friend is correct that the effect of the International Criminal Court Bill is not retrospective, it will catch every crime from the moment that it comes into effect. For me, that is one of the reasons why we should make all possible speed in bringing the treaty into effect, which requires those 60 countries to ratify it. I hope that Britain will be one of them.

Mr. Andrew Mackinlay (Thurrock)

rose—

Mr. Cook

If I could ask my hon. Friend to allow me to continue, I shall undertake to give way to him later.

I was describing the gains secured by the British delegation at the Rome conference. There were other gains to be secured in the sanctions available to the court. On those, the British delegation secured two important points of principle. First, the court will have the power to order those found guilty to pay reparation to their victims. That reflects the reality that those who abuse their power to torture and murder also abuse their power to make themselves rich.

Secondly, the court will not have the option of ordering the death penalty. The Government have consistently lobbied against the death penalty in all circumstances. We therefore successfully resisted attempts by other countries to include the death penalty in the sanctions available to the court. We took the view that it would be inconsistent to lobby internationally against the death penalty while extending such a power to an international court.

Perhaps the greatest achievement of the British delegation was to secure overwhelming support for an international criminal court. At the end of several weeks of negotiations, 120 countries voted for the statute, and only seven voted against.

The Bill makes provision for the UK to meet its obligations to the International Criminal Court and therefore enables us to ratify the Rome statute. It may be for the convenience of the House if I briefly set out the principal purpose of each part of the Bill.

Part I defines the International Criminal Court by reference to the terms of the Rome statute. The Bill follows closely the provisions of that statute.

Part II provides for the arrest of suspects indicted by the International Criminal Court and puts in place an expedited procedure for their transfer to The Hague. In practice, these circumstances are likely to arise only when a national of another state who has been indicted by the International Criminal Court visits the UK.

Mr. Douglas Hogg (Sleaford and North Hykeham)

The Secretary of State has referred to the extradition procedure under part II. Will he confirm that the Bill contains no provision for the competent court considering an extradition application to review the merits of the arrest warrant, or the application to deliver?

Mr. Cook

The right hon. and learned Gentleman is correct. As I said, the Bill proposes an expedited system of transfer that follows very closely the system adopted by the previous Government for transfer in relation to the war crimes tribunal for the former Yugoslavia. It has been standing procedure to expedite transfers required by an international court. We are not dealing here with normal extradition between two countries.

Part III of the Bill enables us to give full assistance to International Criminal Court investigations—for example, by the seizure of evidence and by interviewing suspects and witnesses. There is also provision for freezing property and assets at the request of the court.

Part IV of the Bill provides for prisoners convicted by the International Criminal Court to serve their sentences in British jails. It sets out how we shall put into effect other orders of the court, such as those involving forfeiture of assets, restitution and compensation.

Part V incorporates into domestic law the offences in the statute of the International Criminal Court. Domestic courts will have jurisdiction over such crimes committed in the UK or committed by UK nationals anywhere in the world. These provisions will also apply to anyone resident in the UK, irrespective of their nationality or of the country in which the alleged crime was committed. That removes any concern that the absence of such a provision could leave Britain a safe haven for war criminals who have not yet been indicted by the International Criminal Court.

Mr. Jeremy Corbyn (Islington, North)

Does my right hon. Friend accept that there could be a serious loophole in the Bill unless there is a clear definition of the term "residence"? A person claiming to be in transit through the country could be just as big a criminal as someone who is resident here, but would escape justice.

Mr. Cook

I am deeply sceptical that our courts could be bamboozled as easily as my hon. Friend seems to suggest. The concept of residence is not novel in law, and I am sure that the courts will be confident and comfortable when it comes to dealing with it.

Mr. Mackinlay

Lord Archer of Sandwell, the former Labour Solicitor-General, took a different view of that in another place. In addition, the templates of other comparable statutes, such as the one passed in Canada, contain a provision for universal jurisdiction, rather than a residential qualification that is subject to interpretation. I hope that the Government will reconsider that in Committee.

A question has been raised about executive jurisdiction, and I want to ask my right hon. Friend why clause 21 allows the Secretary of State a discretion when it comes to surrendering a person sought by the ICC. My right hon. Friend rightly referred to the test and the pre-trial provisions, so should not a request from the ICC be acceded to, rather than subject to political discretion?

Mr. Cook

I shall respond first to my hon. Friend's question about the Secretary of State's discretion. The statute provides that that discretion is exercised only in consultation with the International Criminal Court. I hope that that will be some safeguard against my hon. Friend's anxieties.

On my hon. Friend's other point, let us be clear that we are not talking about people who have been indicted by the International Criminal Court. In any case in which people have been indicted by the International Criminal Court, the Bill will give us the authority to apprehend them and transfer them to The Hague for trial. In that sense, the International Criminal Court will have universal jurisdiction. The Bill provides for us to ensure that that jurisdiction applies in Britain.

Mr. Crispin Blunt (Reigate)

I want to take the Foreign Secretary back to the achievements of Sir Franklin Berman and his team in their negotiations. The right hon. Gentleman mentioned the pre-trial chamber of judges and said, in reply to an intervention, that it would review a decision of a prosecutor who had, in effect, gone bad and was bringing prosecutions against countries which should not be brought. Will the Foreign Secretary confirm that it also works the other way, and that when prosecutions are not brought by the prosecutor, it is possible for people to appeal to the pre-trial chamber—for example, state parties and the Security Council—to get the prosecutor to overturn the decision and proceed with a prosecution?

I should be grateful for the right hon. Gentleman's clarification, because I am not quite sure of the terms of article 15, which seems to indicate that the prosecutor and the pre-trial chamber must both decide whether there is a reasonable basis on which to proceed. It is not clear whether one can appeal to the pre-trial chamber for a prosecution to proceed when the prosecutor has decided not to do so.

Mr. Cook

I was asked about the safeguard on the prosecutor, on the basis that the prosecutor is not accountable. The pre-trial chamber is a safeguard against malicious or vexatious use of that power. Any state party can refer a matter to the International Criminal Court, and I welcome that. I can envisage circumstances in which we, as a state party, might wish to use that initiative to make a reference to the International Criminal Court. The Security Council can also make such a reference in circumstances in which it believes that the matter raises issues of threat to international peace and order.

I should like to conclude my description of the Bill. Although we are not obliged by the Rome statute to incorporate these offences into our domestic law, we believe that part V provides an important safeguard for British citizens. It means that in all circumstances Britain will be able to pursue any bona fide allegation of an offence by United Kingdom citizens through our domestic courts, rather than allowing proceedings to take their course through the International Criminal Court.

The central point of these provisions is to enable the International Criminal Court to launch prosecutions against war criminals who cannot be tried because the system of law and order in their state has collapsed or because the criminals themselves are too powerful to be held to account by their own people.

The Rome statute creates the post of an independent prosecutor who can launch both investigations and prosecutions. The independence of the prosecutor is an important point of principle which Britain fully supported. The problem with dispensing international justice through the creation of ad hoc tribunals is that agreement has to be sought every time through the Security Council. The independence of the prosecutor means that a prosecution can be initiated, even in circumstances in which one or other member of the Security Council might have sought to block it.

I stress that in creating this international remedy, there is no intention to release Governments from their obligation to maintain a domestic remedy for crimes against humanity; on the contrary, it is a fundamental principle of the Rome statute that the best place to try any crime is at the national level. The international community has not established a court so that its individual members can abdicate their responsibility to hold their citizens to account before domestic courts.

Mr. William Cash (Stone)

On the compatibility of the international and the domestic courts, where is the line drawn between the two in respect of the mental test that is applicable to a criminal act? Will offences be judged on the same basis? What remedy is to be made available for any vexatious attempts to bring people to justice when that is not justified?

Mr. Cook

I am happy to assure the hon. Gentleman that the statement of the offences in the Bill and the statement of the offences in the statute of Rome—the basis on which the court will act—are identical. In schedule 8, the issue of intent is repeatedly stated in terms of the offences. The offences, as set out there, are identical to those that will be in the statute.

Since the hon. Member for Stone (Mr. Cash) asks about vexatious prosecution, perhaps I can turn to the how the Bill and the court may affect British service personnel. I am aware of the concerns that some service personnel may end up before the International Criminal Court. Those concerns are misplaced. We took great care during the Rome conference to make sure that the service personnel of the UK—or, for that matter, of our allies—could not be exposed to politically motivated prosecutions.

In the first place, the International Criminal Court has no authority to initiate an investigation where the allegations have already been examined by the appropriate national authorities. The International Criminal Court will be a complementary jurisdiction—that is to say, it will only step in when states have proved themselves incapable of investigating, or unwilling to investigate, a crime against humanity.

Members on both sides of the House should have a robust confidence that the British legal system has adequate remedies for crimes against humanity and can satisfactorily demonstrate to the International Criminal Court that any such allegations have been properly investigated and, where appropriate, prosecuted. In short, British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.

Mr. Brazier

Will the Foreign Secretary give way?

Mr. Cook

I will on this occasion, but I say to the hon. Gentleman that we have already lost an hour and a half of this debate and others will wish to speak.

Mr. Brazier

I understand that. However, if there were to be a case involving special forces—or a covert operation in which the identity of the people concerned had to be kept secret not only for their protection but for that of their families—how would we be able to show a special prosecutor that an adequate investigation had been carried out while maintaining the veil of secrecy if allegations were made by an enemy?

Mr. Cook

It is no new legal principle that those who may be investigated may retain their anonymity. That is observed regularly in Britain and I do not see the problem there. However, the provisions on this matter in the Bill closely parallel the provisions in the statute setting up the war crimes tribunal for former Yugoslavia. The previous Government acceded to the war crimes tribunal for former Yugoslavia in the full knowledge that there were several thousand British service men in the area. I suspect that the hon. Gentleman will be aware that that included some of those to whom he has just referred.

Although the previous Government knew that those personnel were serving in former Yugoslavia and would come within the remit and scope of the war crimes tribunal, that did not prevent them—quite properly; I approve of what they did—from agreeing not only that the tribunal should be set up, but that Britain should fully co-operate with it. They were right to do so because they were confident that the circumstances would not arise in which British personnel would be exposed to a vexatious prosecution. If that were right in the case of former Yugoslavia and the British personnel on active service in difficult circumstances there, it is equally valid in respect of the Bill and the International Criminal Court.

Indeed, it is in the best interests of our armed forces that the Bill is enacted. The Bill ensures that all the International Criminal Court crimes are also offences under British law and can be investigated and prosecuted by British authorities. Without the Bill, our forces personnel would be at greater risk of prosecution before the International Criminal Court.

Nor does the creation of an international criminal court change the law under which our armed forces operate. The definitions of war crimes in the statute are already part of the well-established law of armed conflict. They are already binding on our armed forces and form part of the basic training of every British officer. Indeed, most of the wording on the crimes committed during combat is wording drawn from the Geneva Convention Acts 1957 and 1995, both of which were brought to Parliament by a Conservative Government.

I regret that the United States does not yet feel able to ratify a statute which it has signed. I fully appreciate the importance to the United States of the liberty and safety of its personnel. Britain also has many service personnel on duty abroad and, for the reasons I have given, we are confident that they are not at risk from mischievous prosecution.

We will continue, as a friend and ally, to encourage the United States to join the International Criminal Court because it will give us a mechanism to address the rogue states which concern us both. The most powerful argument is always by example and if we want to overcome the doubts within the United States, the best way to do so is to show our own confidence in the court by taking part in it.

Sir Nicholas Lyell (North-East Bedfordshire)

Supposing, heaven forbid, that we or the United States were ever in a position where we had to use nuclear weapons. Who would take the decision as to whether that offended against the ICC statute?

Mr. Cook

I am happy to reassure the right hon. and learned Gentleman that that matter was, indeed, debated in Rome. There is no offence within the Rome statute or before the International Criminal Court on the use of nuclear weapons per se, although the circumstances in which they are used are always a matter of judgment. However, that is a matter of judgment that any British Prime Minister or US President would have to exercise in the present state of international law. The statute does not make any change, nor is there any reference to nuclear weapons. The possession of nuclear weapons is not an offence.

We should ratify because the International Criminal Court will give practical expression to values and principles which I hope the whole House upholds: that those who commit crime should not go unpunished and that justice should be available to the victim through legal process. Those are strong principles, but they also have a powerful practical effect.

The reason why we have laws against theft is not primarily to punish the thief but to deter them from committing the crime. Too much blood has been spilt in recent decades by dictators confident that they would never be held to account. From now on, totalitarian regimes will know that they can be held to account for crimes against humanity. They will be no more above the rule of law than Milosevic. If the International Criminal Court deters just a single future Pol Pot, it will have justified its creation.

The other reason why every civilised society insists that crime must be punished by the rule of law is to prevent the victims or their relatives from taking the law into their own hands. In my experience, one of the greatest problems in drawing conflicts to a close is the cycle of revenge killings that perpetuate ethnic hatred. That produces a psychology in which the other ethnic community is held collectively responsible for the individual guilt of any of its members. By placing criminal responsibility where it rightly belongs—on the head of the individual—the International Criminal Court will help us break the mentality of revenge killing. It will make an important contribution to the process of reconciliation, without which there is no secure peace.

These are powerful assets. They are why the International Criminal Court is supported both abroad and at home. Not a single one of the responses to the draft Bill opposed it in principle. I hope that the House will be able tonight to show the same unity in giving a warm welcome to a Bill which offers the hope of justice to the victims of oppression and which only dictators need fear.

5.59 pm

Mr. Francis Maude (Horsham)

I agree with much of what the Foreign Secretary said, especially about the broad principles that inform the Bill. As I said when we briefly discussed the matter in the debate on the Queen's Speech in December, we support the Bill in principle. When the right hon. Gentleman first made a statement on the subject, we accepted that there was a case for establishing such a court. We expressed some initial concerns about the statute of Rome, many of which remain unresolved. We perceive some serious flaws in the Bill, but we are willing to work with the Government to resolve them, so that it reaches the statute book in a form that all will find acceptable.

We welcome, as everybody must, measures that will allow those who have committed crimes against humanity to be brought to book. That is clearly common ground. In the other place, the Bill received the constructive support of the Opposition, and we will take the same approach here. Where we agree with it, we will say so; where we believe it can be improved, we will seek to amend it, as we have already done; and where there are parts with which we simply do not agree, we will oppose them.

Let us consider the case for having a permanent International Criminal Court. The Foreign Secretary has rightly said that in recent years there have been continued breaches of international law of a most hideous kind, including ethnic cleansing in former Yugoslavia, genocide in Rwanda and mass murder in East Timor. Indeed, activities currently being sponsored by the Mugabe regime in Zimbabwe could well attract the attention of future tribunals.

It is right that, in respect of those appalling activities, ad hoc tribunals should be investigating and trying individuals—but that is happening in relation to only two of those theatres. That demonstrates the case for a permanent court. Thousands of refugees from the ethnic conflict in Rwanda have been murdered in recent years, but the mandate of the tribunal is limited to events that occurred in 1994. Crimes committed since then will not be covered by the ICC either, as its remit will not be retrospective.

Mr. Winnick

Is it not odd that someone who has been held responsible for at least half a million murders—I am referring to the person who ruled Uganda until it was liberated in the late 1970s—lives peacefully in Saudi Arabia, occasionally giving press conferences when he is allowed to do so, and the international community shows not the slightest concern about his not being brought to justice?

Mr. Maude

That is a fair point. Such instances make the case for having a permanent International Criminal Court. I do not know off hand whether Saudi Arabia has signed and ratified the Rome statute. If so, the case that the hon. Gentleman cites would be capable of remedy. If not—and the reality is that the court will not have universal coverage for some time to come—it will remain unresolved.

Mr. Mike Gapes (Ilford, South)

One reason why there will not be universal coverage is the attitude of the United States Administration. Will the right hon. Gentleman take the opportunity to urge that Administration, and the Senate, to ratify the treaty?

Mr. Maude

I will come to the American position in a while and deal explicitly with that point.

Against the clear deficiencies of the—currently two—ad hoc tribunals, we must balance the questioned effectiveness of the International Criminal Court. Serious commentators have questioned its effectiveness, and we believe that there are many deficiencies in the Bill. The case for a permanent court is founded on deterrence. It is said that the bad people who today think that they will get away with crimes against humanity will think again if they know that there is a court in permanent session with powers to pursue them wherever they are. In some cases, that may well be so, but it is not a panacea, any more than the existence of national courts guarantees that no one will commit murder in their own jurisdiction.

We must acknowledge the advantages of ad hoc tribunals, which can be flexible and are focused on a specific area, but on balance we accept that the argument for a properly working International Criminal Court, which will give a consistent form of justice, is persuasive.

Mr. Hogg

My right hon. Friend is familiar with the requirement of British law that a person may not be committed for trial unless there is prima facie evidence to support the accusation. It is clear that under the Rome statute a person can be sent for trial abroad in the absence of any test of whether there is such prima facie evidence. That makes me uneasy, and I would be grateful for my right hon. Friend's views on it.

Mr. Maude

My right hon. and learned Friend is a practising lawyer, whereas I am a long-retired one: I have put my past behind me. As I understand it, the provision for a pre-trial panel of judges—

Mr. Hogg

It is outside our jurisdiction.

Mr. Maude

That is an absolutely fair point. No doubt my right hon. and learned Friend will want to be on the Committee that considers the Bill and pursue these matters in detail.

Our serious concerns about the detailed provisions lie not with the concept of a permanent court but with the Bill as it stands. As I understand it, 139 countries have signed the statute and 29 have ratified it. As the Foreign Secretary said, the court will not be established until 60 of the signatories have ratified. There is of course a big difference between signing and ratifying. Signing is merely an expression of some intention to ratify.

This is an important consideration in the light of the question asked by the hon. Member for Ilford, South (Mr. Gapes) about the United States. States that had not signed the treaty by the end of last year would have been excluded from detailed negotiation of the Rome statute in years to come. That is explicitly why America and Israel signed up at the last minute, on 31 December 2000.

We are still a long way short of the number of ratifications needed to set up the court. Australia signed up but has not yet even begun to introduce a Bill to ratify. Japan has not even signed. Israel signed but laid down many conditions.

Mr. Robin Cook

I want to put in a good word for Japan and one or two other countries that the right hon. Gentleman has cited. Japan has not signed because it has no technical legal position to do so: it can only accede. It intends to accede, and will effectively sign and ratify at the same time. There is no lack of intention to join.

Mr. Maude

I hear what the Foreign Secretary says.

The United States has signed but has said explicitly that the statute in its current form should not be ratified. When, on the last possible day to allow the United States to remain in the negotiation process, President Clinton signed the Rome statute, he said: In signing, however, we are not abandoning our concerns about significant flaws in the treaty. In particular, we are concerned that when the court comes into existence, it will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not … The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. There is, therefore, a real concern in America.

The Foreign Secretary referred to several matters that have caused concern to commentators; he said that they were the same as those relating to the statute that set up the ad hoc tribunals, especially the international criminal tribunal in respect of Yugoslavia. However, although it is one thing to agree to provisions that apply only to an ad hoc tribunal for a particular area, which one hopes is time limited and does not involve embedding such provisions in domestic law, it is another thing to agree to provisions that are to be embedded in domestic law in such a way as to be avowedly difficult to amend, because the law would have to reflect internationally negotiated matters under an international treaty.

Mr. Corbyn

The right hon. Gentleman well describes the American wish to be part of the negotiations but not of the process. Will he go further and say that the United States ought to be part of the whole process and should not be allowed to exempt itself from it? If the US were allowed to get away with that, it would undermine the process.

Mr. Maude

The hon. Gentleman's use of language is somewhat puzzling; he refers to the US being "allowed to get away with it" and says that it should not be permitted to be exempt from the process. America is a grown-up country that can make its own decisions. If a country as committed to law and freedom as the United States is concerned that the process has what President Clinton—not some republican President—describes as "significant flaws", we at least owe the Americans the courtesy of listening to what they have to say, rather than asking questions from the comfort of Britain. Many more American than British citizens are committed overseas in their armed forces, so we should be ready to listen to their concerns.

Mr. John Bercow (Buckingham)

Although, as my right hon. Friend pointed out a moment ago, Israel is only a relatively recent signatory, on account of reservations that it entirely legitimately expressed at the 1998 Rome conference, will he confirm that the historical record shows that Israel has been an enthusiast for the concept of the ICC since the early 1950s?

Mr. Maude

I think that is correct. Israel's concerns—like those of the Opposition—do not flow from opposition to the concept of an international criminal court, but from anxiety as to how it will work in effect and about the dangers that could arise.

Mr. Tony Worthington (Clydebank and Milngavie)

The right hon. Gentleman criticised the language of my hon. Friend the Member for Islington, North (Mr. Corbyn), but my hon. Friend's question was a good one. Do Her Majesty's Opposition urge the United States Government to overcome their difficulties and sign up to this law?

Mr. Maude

Rather than urge the US Government to sign up to something about which they have—as President Clinton put it—"fundamental concerns", I would urge them to engage in the negotiating process as their signature allows them to do, in order to negotiate, over time, changes that would remove their concerns. Many of the concerns expressed by US Administrations of both colours are similar to those of the Opposition and are, I suspect, shared by countries such as Israel.

Mr. Mackinlay

What are they?

Mr. Maude

I am coming to that; the hon. Gentleman leads me neatly to my next point. The right course is to address those concerns so that the International Criminal Court will be set up in such a way that we are all comfortable with it.

Mr. Corbyn

I thank the right hon. Gentleman for giving way again on that point. Surely it is a bit off that the United States signs up to the principle in order to be part of the negotiations, but on the penultimate day the President announces that he has not the slightest intention of submitting the matter to the Congress or the Senate, and urges his successor to follow the same course. There will be a sword hanging over the whole process for ever—will the US sign up or not? If everyone says that they want the criminal court process to work effectively, should not all nations be persuaded to sign up to it? Would it not help if the House sent out the message that we think the United States ought to sign up to and ratify the statute?

Mr. Maude

I am not sure that the hon. Gentleman should be haranguing me; he should take the matter up with the Prime Minister, who could put it to President Clinton. It was President Clinton who expressed concerns.

The hon. Member for Islington, North might like to be reminded of the words of the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leicester, East (Mr. Vaz). We wish the hon. Gentleman well in his sad illness and hope that he will recover quickly. The Minister said: The Americans have said that they would like to move towards signing the statute, and we hope that a way can be found to address their concerns."—[Official Report, 27 October 1999; Vol. 336, c. 947.] Rather unusually, I find myself in agreement with the Minister. We, too, hope that a way can be found to address American concerns. Those concerns exist and we should not try to deny—

Mr. Mackinlay

What are they?

Mr. Maude

The hon. Gentleman keeps asking that question. If I had not given way to so many of his hon. Friends, I should have answered it. I shall now do so.

Our first concern is that we have not been told what declarations—if any—will be entered into by the Government. It is odd that we are being invited by the Foreign Secretary to give a Second Reading to a Bill that will give effect to the statute of Rome when the Government have not actually got around to telling Parliament what declarations they will make. The Foreign Secretary says that, of course, the declarations are of no legal effect at all. In that case, it is odd that so many countries have entered into them, describing them as interpretative declarations that will have an impact on domestic law. We are dealing with domestic legislation, not just international law. Such declarations will have an impact on how the Bill and the statute of Rome are interpreted by our domestic courts. There will be an effect on domestic law.

It is regrettable that the Bill has already gone through all its stages in the other place and we have reached Second Reading in this place, yet we have still not been told by the Foreign Secretary what declarations the Government propose to enter. It is unfortunate, to say the least, that the Foreign Secretary has not taken this opportunity to let the House into some of his thinking on the subject. Does he expect that the Government will want to enter into any declarations at all? If they do not want to do so, that is a perfectly honourable position. However, it would be nice to know; that would make a difference as to how the House may feel about the Bill. Perhaps the right hon. Gentleman would like to intervene to let the House into his ruminations on the subject. He was somewhat delphic about it earlier.

Mr. Cook

I am happy to stand by what I have already said. A declaration has no legal effect. On the general principle, we do not want to encourage international treaties that are made into a Christmas tree, hung with declarations, by those who accede to them. The great majority of countries which have signed up have made no such declarations. The right hon. Gentleman said that there were many such countries, but at present there are two. One of them is France, which made an interpretative statement; the other is New Zealand, which made a statement rejecting the French statement. In effect, the right hon. Gentleman asks us to accede to the French declaration.

Mr. Maude

The Foreign Secretary seems misinformed. My understanding is that Austria, Belgium, Belize, Finland, France, Israel, New Zealand, Norway and Spain have all entered declarations to the statute—[Interruption.] They may be relatively minor declarations; nevertheless all those countries have entered them.

Dr. Phyllis Starkey (Milton Keynes, South-West)

Perhaps it would help if the right hon. Gentleman could move from a hypothetical discussion to a real one and suggest the type of declaration that the UK might use. For example, Israel, among others, made the declaration that politically motivated accusations could not entertained. Does he suggest that we should echo that declaration? Could he tell us what "politically motivated" might mean and who would judge what it is?

Mr. Maude

I do not advocate such a declaration. I shall come to the specific declaration that I advocate when I deal with the main amendments that we want to make to the Bill.

I think I can take it from what the Foreign Secretary says that he proposes that the Government will not enter any declarations.

Mr. Cook

We have none in mind.

Mr. Maude

We can take that as a definitive statement that the Government expect the Rome statute to remain without reservations, which is effectively what declarations are. It is helpful to have that confirmed. I think that the hon. Member for Thurrock (Mr. Mackinlay) wanted to intervene.

Mr. Mackinlay

We want to know what the right hon. Gentleman's concerns are.

Mr. Maude

The hon. Gentleman has contained his curiosity very well.

Mr. Cook

If the right hon. Gentleman will allow me, I will clarify the number of declarations. As I said, only two countries have made a statement that queries the legal effect of the statute. The right hon. Gentleman is correct to say that other countries have made declarations; for example, the Austrian declaration to which he referred states that any documents making a request of the Government of Austria shall be in German. I would not rule out the possibility of our making such a declaration, but it has nothing to do with the terms of the statute.

Mr. Maude

To satisfy the curiosity of the hon. Member for Thurrock, I shall move on to our second concern, which is more specific but very deep, and I suspect that it lies behind the concerns of the United States Administration. I refer to the position of the armed forces.

We believe that the Bill does not give our armed forces the protection that they need. War by its very nature is chaotic. There are many examples of events in war in which dutiful, decent officers and men obeyed orders that unintentionally led to the loss of civilian life. There were tragic examples of that during the Kosovo bombings, when bombing orders led to the deaths of civilians. There was also the question of whether it was right to offer protection to the people of Kosovo while refusing to allow allied planes to fly at lower altitudes, which might have reduced the risk to civilians.

Of course, that does not mean that it would be right to accuse the Foreign Secretary and the Prime Minister of being war criminals, as some in Serbia have argued. Nor, of course, does it mean that Lady Thatcher was a war criminal when she ordered the retaking of the Falklands. More importantly, perhaps, it does not mean that the pilots who flew on the missions were guilty of war crimes. It would be wrong, and the British people believe that it would be wrong, if British troops were subjected to politically motivated prosecutions or threats of prosecution for carrying out their duties in distant foreign lands. Yet there is a belief that such a threat exists.

Mr. Nick Hawkins (Surrey Heath)

Does my right hon. Friend accept that those of us who represent military constituencies, as he knows I do, share the concerns expressed by the Chief of the Defence Staff when he gave evidence to the Select Committee on the Armed Forces Bill? He made it clear that although he had been advised that prosecution of a junior officer was unlikely, he could not feel that the word "unlikely" filled him with much confidence. Does my right hon. Friend agree with the Chief of the Defence Staff, as I do?

Mr. Maude

I am coming to precisely that point, which is of great importance. The Foreign Secretary and other Ministers can offer all the bland reassurances that we have heard from them, but the reality is that soldiers, sailors and airmen will take seriously the doubts expressed by their military leaders and will, frankly, find them more persuasive than the reassurances of politicians of any colour. These are not fanciful concerns, but Ministers have sought glibly to brush them aside, giving bland reassurances that have failed to allay them.

Mr. Cash

Clause 66, which deals with the mental element or test that I mentioned earlier, says: In interpreting and applying the provisions … the court shall take into account any relevant judgment or decision of the ICC. The number of those judgments and decisions will obviously grow in time. The clause continues: Account may also be taken of any other relevant international jurisprudence. Does my right hon. Friend agree that we need to probe that point extremely carefully as the Bill proceeds through the House, because that provision will probably be incompatible with the sort of mens rea test that we are used to in the United Kingdom?

Mr. Maude

We have specific concerns about the mental intent element allowed for in the statute for some of the offences. If my hon. Friend wants to pursue those points later in the debate or in Committee, he will be doing the House a service.

On our specific concerns about the armed forces, it is helpful to consider recent exchanges. On 7 March, the former NATO commander Admiral Eberle said: It is vital that commanders in the field should not be put in a position where they are concerned as to what is right and what is wrong at the expense of risking their own lives and those of the men they command. On the same day, two daily newspapers, The Daily Telegraph and The Guardian, carried on their front pages the concerns of several senior military officers about the Bill. The Daily Telegraph reported the concerns of senior officers, who said that commanders faced either being accused of war crimes or changing the rules of engagement to the point where the enemy could be certain of 'getting his strike in first'. It went to on to say: The International Criminal Court Bill adds to concerns expressed by the new Chief of Defence Staff, Admiral Sir Michael Boyce—and his predecessor, Gen Sir Charles Guthrie—that litigation … will diminish capability. The Guardian reported other officers' concerns, saying: 'Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals', a senior defence source warned yesterday. He added that ministers were 'very aware' of such a prospect. He said he was concerned in particular about conflicts and operations, short of a full-scale war, even—paradoxically—where British forces were engaged in support of the UN. Another senior defence source said that future rules of engagement could, for instance, prevent a British warship from attacking a hostile vessel until it was too late. On Report in the other place, my noble Friend Lord Howell read out some of those reports and voiced the concerns of senior members of the armed forces about the Bill. He said: Legitimate anxieties have been aired recently in the newspapers by members of the Armed Forces."—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 347.] The Government's response was very interesting. Baroness Scotland, the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, said: Although there has been much vaunting in the press of the concerns of the Armed Forces, the MoD has been assiduous in its duties—it has crawled all over the Rome Statute and the Bill and it is content, as are the higher echelons of each of the services. It is important to note that those words were spoken on 8 March. Baroness Scotland continued: They said that they are satisfied that the legislation should not lay the Armed Forces open to prosecution when they are undertaking their legitimate duties as directed by a democratically elected government. We all know that we can get excited about press stories and how much reliance we put on statements that we read."— [Official Report, House of Lords, 8 March 2001; Vol. 623, c. 433.]

Mr. Desmond Browne (Kilmarnock and Loudoun)

Will the right hon. Gentleman give way?

Mr. Maude

I shall finish this point first, because it is central to the matter.

As my hon. Friend the Member for Surrey Heath (Mr. Hawkins) said, the concerns had been expressed by Admiral Boyce, the recently appointed Chief of Defence Staff, in evidence to a Committee of the House only two days before Baroness Scotland was speaking. The transcript of his remarks only became available some little time later. The House should pay attention to what he said. He was asked about concerns relating to the Bill, and he said: I think we need to be very careful indeed that when the Bill is taken through Parliament, we do not put ourselves in a situation where a junior person carrying out orders which he believes to be entirely proper can subsequently find himself in front of the International Criminal Court. So far I have been told that this is unlikely to happen. Probed a little further, he said: I cannot say"—

The Minister of State, Foreign and Commonwealth Office (Mr. John Battle)

rose—

Mr. Maude

I shall finish the sentence if the Minister wants me to, because the national court would have the opportunity to investigate the case if it were pointed in that direction by the ICC. That is simply an explanation, and I accept that it may be highly unlikely that that eventuality would occur, but when the Chief of the Defence Staff was probed a little further on whether that assurance gave him sufficient comfort, he said: I cannot say that 'unlikely' fills me with huge confidence. I would be much happier with a completely unequivocal statement, but I guess that is probably the best I will get.

Mr. Gerald Howarth

Although my right hon. Friend has drawn to the House's attention the clear reservations of the Chief of the Defence Staff, he will have noted that the Foreign Secretary, in answer to my earlier intervention, said that he had received no representations from the Secretary of State for Defence.

Mr. Robin Cook

The Secretary of State had received no representations.

Mr. Howarth

We are getting to the truth that the Secretary of State for Defence had received no representations. Will my right hon. Friend say whether it is likely, therefore, that the chiefs of staff have not been talking to the Secretary of State for Defence about those very serious reservations?

Mr. Maude

If the Secretary of State for Defence says that he received no representations at any stage, we of course accept that. Perhaps the serious concerns that the Chief of the Defence Staff expressed to the Select Committee on the Armed Forces Bill were completely spontaneous. Perhaps he had not thought about such matters before, and it was the first time that they had been discussed, but somehow we all find that a tiny bit unlikely.

Dr. Starkey

rose—

Mr. Maude

I shall give way to the hon. Lady, but then I want to make progress because I know that many hon. Members wish to speak.

Dr. Starkey

I am trying to follow the right hon. Gentleman's argument, and I am in some difficulty. Will he confirm that, when members of our armed forces operate abroad, they have a code of conduct appropriate to the operation that they are undertaking, which sets out very clearly, essentially, what they are allowed and not allowed to do under international law in that situation, and that ordinary soldiers know full well that if they break those rules of engagement, they will be held to account? Will he explain why that is so very different from what he suggests?

Mr. Maude

If the hon. Lady does not understand that there is a real difference in the effect on the mind between those who frequently make instant decisions facing the prospect of disciplinary proceedings in the armed forces, or even prosecution, possibly by a domestic court, and a process that is international in character and out of the control of those who command the armed forces nationally, she should try talking to some of the officers. Indeed, she might like to talk to Admiral Boyce, just appointed by the Government as Chief of the Defence Staff, who is expressing precisely those concerns.

Mr. Browne

rose—

Mr. Maude

I shall give way if the hon. Gentleman presses me to do so, but I am keen to make progress.

Mr. Browne

I must press the right hon. Gentleman to give way. I am grateful to him for giving way, and I am listening very carefully to what he says. I understand the distinction that he makes between the temporal nature of the Yugoslav tribunal and the International Criminal Court, and it is an important distinction to make. However, the points of principle—which he seems to share, although he has not actually said so—in relation to the tribunal for the former Yugoslavia and the ICC are identical. His Government made our soldiers subject to that tribunal, which takes precedence over our national courts and is not complementary to them. Did he have those concerns when he, as a member of that Government, made our soldiers subject to that tribunal?

Mr. Maude

To be precise, I was not a member of the Government; nor was I a Member of Parliament at the time. The hon. Gentleman makes the point in the opening part of his intervention that an ad hoc tribunal, which is limited in area and in time, deserves different consideration. The statute relating to the international criminal tribunal for Yugoslavia was not embedded into domestic law, but if the ICC statute were embedded into domestic law, it would be a different matter.

Mr. Browne

What about the principle?

Mr. Maude

Those concerns are not absolute ones of principle; they have a practical effect. If a senior officer of the British armed forces says that they are real concerns, the hon. Gentleman and his colleagues on the Government Benches should at least do him, and our armed forces, the courtesy of taking those concerns seriously. That is what we shall do, which is why we shall probe and press those matters as the Bill passes through the House.

Will the Foreign Secretary categorically tell the House today that Admiral Boyce's concerns have now been completely met and that, if Admiral Boyce were to be interviewed by the Select Committee once again, he would say that he has now been given "a completely unequivocal statement"? Will the Foreign Secretary respond?

Mr. Robin Cook

I am very happy to respond to the right hon. Gentleman because it gives me the opportunity to repeat a passage of my speech that he obviously did not fully absorb when I delivered it. I told the House that British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities. That is certainly unequivocal. No one could point to anything in that statement that lacks conviction; it is a comprehensive statement.

I return to the question that my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) asked the right hon. Gentleman. He is mistaken about the war crimes tribunal. As far as I am aware, no time limit has been set for that tribunal; it can last for ever. It is confined only in its geographical coverage. That coverage contains several thousand British soldiers, and it did when the right hon. Gentleman's Government applied the war crimes tribunal to that region. Why is it wrong for us to act on the same principles on which they acted, when we have a cover that they did not provide for British troops—if they are tried before a British court, the international court does not apply. That was not the case when the Conservative Government adopted the war crimes tribunal. They did not give British personnel the safeguards that we are giving them.

Mr. Maude

The Foreign Secretary asserts that British armed forces personnel will never be tried for the reasons that he sets out, but he put that differently earlier. I was listening to his speech, and he invited the House to put its faith in the robustness of the British legal system, saying that the ICC would, as a matter of automatic trust, accept that such matters had been fully investigated and pursued domestically, so that, in practical terms, there could be no question of their being pursued by the ICC. With respect, that is not the same as providing a cast-iron guarantee, such as that sought by Admiral Boyce, that that will not arise. It is still in the category of being highly unlikely.

If the Foreign Secretary is willing to make the robust assertion that no armed forces personnel can be pursued in the ICC in that way, perhaps he would like to tell that to the very active QC, Geoffrey Robertson, who pursues such matters vigorously and has said: We have to be prepared, in theory"— I accept that he said, "in theory"— to have our soldiers tried by the ICC. That is the point. Of course it is highly unlikely, in theory, that that will happen, but if the Foreign Secretary wants to tell the House that it will be impossible for British armed forces to be pursued in that way, let him agree to amendments that would make it impossible. If he is so confident, let him amend the Bill to make it impossible. That will provide the sort of reassurances sought by the senior officers whose concerns have been clearly articulated.

Mr. Brazier

My right hon. Friend makes a very powerful case. Will he make it clear to the House that if we find the Government unwilling to accept the amendments that he will move in Committee, and if the Third Reading debate takes place before the election, we shall feel obliged to vote against the Bill on Third Reading?

Mr. Maude

I am coming on to that.

Mr. Worthington

rose—

Dr. Starkey

rose—

Mr. Maude

I shall not give way again because I have given way a great deal. I have been speaking for quite some time, and many hon. Members wish to contribute to this important debate.

I shall deal with the four specific amendments with which we are particularly concerned. They are necessary for the Bill to become acceptable, and we shall want to vote against the Bill's Third Reading if they are not accepted.

Mr. Denis MacShane (Rotherham)

Excellent. Tell the court's supporters.

Mr. Maude

It is interesting that the hon. Gentleman says "Excellent". That shows that, if anyone is playing political games, it is not Conservative Members. We have repeatedly and consistently said that we are in favour of the proposal, but it is spectacularly helpful of the hon. Gentleman to point out to the House and to the public that one party—the Labour party—is relentlessly playing electoral politics with the issue. We have taken a consistent and principled stance, and we shall continue to do so.

Mr. Worthington

rose—

Mr. Corbyn

rose—

Mr. Maude

No, I shall not give way. I have given way a great deal and I now wish to make progress.

Lest it be thought that it is only the Conservatives who have expressed concerns, Labour Members might like to reflect on the view of Lord Shore of Stepney. He said: We are putting ourselves unnecessarily in the dock by accepting a number of these foolishly agreed clauses in the convention."—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 360.]

Mr. Robin Cook

rose—

Mr. Maude

Before I deal briefly with the amendments that have to be made, I shall give way to the Foreign Secretary. I must then make progress.

Mr. Cook

The right hon. Gentleman owes it to the House to put right the quote that he attributed to Geoffrey Robertson, whom I know well. The right hon. Gentleman quoted Mr. Robertson as saying: We have to be prepared, in theory, to have our soldiers tried". The right hon. Gentleman should share with the House the full quote. Mr. Robertson, in fact, said: It is entirely fanciful to imagine that a Briton against whom there is evidence of war crimes would not be prosecuted under our own military procedures. We have to be prepared, in theory, to have our soldiers tried, but"— this is what he added— in practice, it will never happen. The right hon. Gentleman did not give us that bit.

Mr. Maude

If the Foreign Secretary is absolutely confident that that will never happen, let him agree to amendments to the Bill that will guarantee that it will never happen. If he agrees that, he will have our support. As it is, we have relayed the concerns felt by those who take responsibility for the command of the armed forces, and they have not been reassured. If the Foreign Secretary agrees to our amendments, we will be willing to support the Bill on Third Reading.

Sir Nicholas Lyell

I hope that the Foreign Secretary will listen to this point. Is my right hon. Friend aware that Mark Littman QC, who is a highly respected international lawyer, took a view that is worthy of serious respect, even though I do not agree with it? He took the view that the Government acted unlawfully in the bombing of the former Yugoslavia—

Mr. MacShane

Him and other loonies.

Sir Nicholas Lyell

Mr. Littman took the view that the Government acted unlawfully in the bombing of the former Yugoslavia and Belgrade in the circumstances that arose over Kosovo. If the international prosecutor took that view, what would prevent members of the Government—

Mr. Crispin Blunt (Reigate)

On a point of order, Madam Deputy Speaker. I apologise to my right hon. and learned Friend, but is it in order for an hon. Member to call another hon. Member a loony?

Madam Deputy Speaker (Mrs. Sylvia Heal)

That is not the kind of language that one would expect from hon. Members.

Sir Nicholas Lyell

Although I hope to be called to speak, I was asking my right hon. Friend the Member for Horsham (Mr. Maude) a question. A serious lawyer suggests that the British and United States Governments acted contrary to international law and that what they did might have been a war crime because quite a lot of civilians were killed. Could the Government have been prosecuted? We need an answer to that question before we drive the Bill through.

Mr. Maude

It is extremely revealing that the Foreign Secretary introduced the Bill in a portentous and high-minded way. Since then, however, we have been bombarded with fatuous interventions from a sedentary position from his Parliamentary Private Secretary.

Mr. MacShane

I am not the PPS.

Mr. Maude

Perhaps the hon. Gentleman is even lowlier than that. He has derided the real concerns that many serious people—much more serious than him—have about this important Bill. Others outside will have noted the extraordinary spirit of levity with which he has approached the debate.

My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) asks an important question and it deserves an answer from the Government. I hope that Ministers will respond properly to that concern later.

Mr. Mackinlay

rose—

Mr. Maude

No, I shall not give way, even though it is tempting to take an intervention from the hon. Gentleman. I shall proceed to the conclusion of my speech.

We believe that four amendments must be made to the Bill. First, there should be a seven-year opt-out as the French have taken and as is provided for under article 124 of the Rome statute. When it comes to the robust defence of the national interest, perhaps we sometimes have something to learn from the French. They deliberately took that option to ensure that there would be no hazard to their armed forces.

Secondly, the Secretary of State should have discretion over the issuing of warrants from the ICC. That could be accomplished by the Government making the appropriate interpretative declaration to the statute. It is important to ensure that a vindictive prosecution pursued for the settling of political scores cannot be undertaken in that way.

Thirdly, the legal test for what a military commander "should have known"—as set out in clause 65—needs revising. It is extremely subjective and that gives most concern in relation to the protection of our armed forces. When the issue was raised in the other place, we were told that the Bill must reflect the exact words of the statute of Rome, but that cannot be correct. In relation to this specific provision, the Canadian Government and Parliament have a different form of wording, which imposes a tougher test—a higher test for the mental element, which is one of the concerns that my hon. Friend the Member for Stone (Mr. Cash) mentioned. They talk about a test of criminal negligence and about a commander who would be criminally negligent if he did not know the facts that put civilians at risk.

Fourthly, the Government should amend the Bill to ensure that, if the statute is ratified, the declarations that the Government intend to make—if they make any—should be laid before both Houses of Parliament. I understand that there is the possibility that declarations and subsequent renegotiations may create new criminal offences in domestic law and it is right that those should be properly debated by the House before they pass into our law.

That is the very minimum that must be put into the Bill to protect our armed forces from vexatious and malicious prosecutions by rogue states. Let us be under no illusion about that. Let us remind ourselves of the immense power that the court will have and that it needs to have if it is to pursue the high objectives that have been claimed for it.

We support the principle of the Bill on Second Reading, but, as I have said, for us to be able to support it on Third Reading, the Government will need to show a great deal more flexibility and a great deal more readiness to meet the proper concerns that many people have raised than they have done hitherto. We look forward to that happening in Committee.

6.49 pm

Mr. Tony Worthington (Clydebank and Milngavie)

I am astonished and delighted to be called so early in the debate; I have just finished writing my speech.

We have just listened to a strange contribution. The right hon. Member for Horsham (Mr. Maude) said that he supported the Bill, without showing the slightest enthusiasm for it. Every difficulty was considered in the context of an Army commander. This Bill is of great importance and we should greet it with enthusiasm.

I congratulate my right hon. Friend the Foreign Secretary and his team. I am certain that our presence at the Rome conference and our contribution towards the Rome statute were important factors in reaching this solution. I doubt whether the outcome would have been the same under the right hon. Member for Horsham.

The Bill is welcome. Many of our predecessors here and in the other place have been persistent in their efforts to reach this day. A gap in our justice system is gradually being filled—we are trying to end the cliché that it is easy for the greatest mass murderers to get away with their crimes when single murderers are convicted. I like what Kofi Annan said about people all over the world wanting to know that humanity can strike back. Tyrants and demagogues have unacceptably exerted their power without running the slightest risk that they might have to face up to justice. I congratulate my right hon. Friend on the Bill. We have to accept that it is not perfect. It will not create a perfect International Criminal Court, but it is crucial that we do not allow the best to drive out the good. If we do not embrace the Bill, we will not get an ICC. It is an important step.

Other significant improvements in recent years include the two tribunals for Rwanda and the former Yugoslavia. Their establishment is a great achievement, and the previous Government must take some credit for that. Offenders are appearing before them and being convicted. They are powerful examples of international co-operation. I could not believe it when the Conservatives said that they want to set up the ICC, but only if it does not apply to us. They do not want anyone from Britain to be subject to its control. We cannot give that unconditional undertaking. We have to hope that no one from Britain will be involved in it—we can ensure that that happens by investigating and prosecuting in our courts.

Dr. Julian Lewis

The hon. Gentleman probably knows that I have always been sympathetic to the principle behind the Bill. However, one matter puzzles me. What happens if a British service man is prosecuted and acquitted in this country, but the ICC prosecutor is not satisfied with that result? Will he be able to draw the service man into the process, or is he safe from such prosecution?

Mr. Worthington

That is an important question, which the hon. Gentleman asks with respect. He wants to know that people will not be subject to vexatious inquiry. I am satisfied from what I have read that if we go about an investigation in good faith, no individual has the power to take further action. Any additional inquiry—never mind a prosecution—would be subject to a court of judges. Those safeguards were negotiated in Rome.

We must make progress and it is only by establishing the ICC that we will get the procedures right. We will not do that if we stand outside the process. I had no great hopes of satisfactory prosecutions in the two tribunals for Rwanda and the former Yugoslavia. However, they are an inspiration to us, as was the Scottish prosecution of the Lockerbie incident. People who would not otherwise have been prosecuted for a mass murder have, because of international co-operation, been convicted. I recently returned from a visit to Cambodia with the International Development Committee, and I am pleased to hear that steps are being taken to establish an international court to prosecute those who committed the atrocities under Pol Pot. That is also an inspiration. Such actions mark the way forward.

The way to make progress and to get the answers that we want is by making an enthusiastic commitment to the cause rather than by doing what the Conservatives suggest. The major value of the ICC is its preventive or deterrent effect. We hope that people will be deterred by the knowledge that their crimes will be punished. Indeed, the Conservatives have always argued about the power of deterrence for domestic crime. If it works in a national context, it should work in an international setting.

I am enthusiastic about the Bill, and my comments must be taken in that light. I should like retrospection explained in more detail. Why will the ICC consider only offences that occur once it has been established? Idi Amin was mentioned; I am puzzled as to why his crimes will not be subject to the ICC. I accept the principle of retrospection if an act was not a crime when it was committed and the person involved did not know that he was breaking the law. However, I find it difficult to accept that principle if people are mass murderers and criminals in many other ways. Why is the ICC not a legitimate technique to bring them to justice? Why will they not be subject to it?

The hon. Member for New Forest, East (Dr. Lewis) recently visited Sierra Leone, where he will have seen the consequences of heinous crimes against humanity. It is unacceptable that it is not possible to bring Foday Sankoh's followers to justice for their crimes against the children of Sierra Leone. Those were crimes any time, any place. I am puzzled that people cannot be prosecuted because the law cannot be applied retrospectively. Perhaps I have not read enough about it, but I think that others will wonder why the criminality of Idi Amin and Foday Sankoh are not subject to the ICC.

The Act and the court will be imperfect. However, we must press on. One major imperfection is that different states will not be equal before the law. The countries that are currently subject to international action are Rwanda and the former Yugoslavia. They are not big, powerful countries. The people who will be prosecuted are not likely to be on the winning side in a dispute. It will not enhance the court's legitimacy if the only people prosecuted are small fry and losers. Some actions, such as those by Russia in Chechnya, have been criticised. The actions of the Chinese in Tiananmen square have been criticised, and in some countries, the scale of the bombing of civilians would constitute a war crime. However, powerful countries such as America would not be prosecuted for them.

The court's partiality is therefore a huge imperfection, but we gain more by establishing an International Criminal Court than by delaying. Its existence would have helped us with the problems that President Pinochet posed. Fifty or 60 years ago, establishing the Nuremberg trials was right; so is setting up the International Criminal Court.

We must begin by reducing the problems. The court is a weapon against wickedness, not the solution. We must build up a culture of justice with which to replace the current culture of immunity. The establishment of the Yugoslav tribunal must give Milosevic some palpitations. Now that the rotten core has fallen, it will not be long before Mladic and Karadzic are taken, too.

The imperfections are substantial, and one of the major problems is the attitude of the United States. The only good action that Clinton took in his last days in office was signing the relevant statute. However, there is no optimism that the new presidency will do anything other than run away from the International Criminal Court. American attitudes to international activity are a genuine problem. I hope that the Americans have been taken aback by the universal expressions of disgust about their attitude to Kyoto, but I doubt it. Their attitude to the International Criminal Court is also disturbing. Donald Rumsfeld, the US Defence Secretary said: American leadership in the world could be the first casualty of the Court". What does that mean? Does he mean that leadership stems from activities of which the court would disapprove? Does he believe that the United States would be subject to vexatious complaints? The statute's framework provides protection against that. Rumsfeld's comments are so antagonistic that it is difficult to ascertain the progress that can be made. That seriously weakens the court.

Ann Clwyd

On this occasion, I want to defend the United States, which had an ambassador for war crimes; other countries should follow suit. One of his roles was negotiating an agreement with Cambodia, which my hon. Friend mentioned, and persuading that country to set up a war crimes tribunal there.

Secondly, the United States funds Indict, an organisation that I chair and that exists to bring Iraqi war criminals to justice. We have collected evidence—and continue to do so—that we have submitted to the Attorney-General for prosecutions that can take place in this country. The United States should be complimented on that.

Mr. Worthington

I compliment the United States on that, and I stress that there are many Americans whose internationalism hon. Members want to encourage. However, it would be wrong to deny that we were depressed by recent comments from the United States.

We must press ahead with the International Criminal Court. Who remembers who was President of the United States at the time of the Nuremberg trials? [HON. MEMBERS: "Truman."] I know that it was Truman, but his words at the time do not matter; the establishment of the Nuremberg trials matters. We must set up the International Criminal Court and thus establish a framework for the compliance of countries such as America and China, which are not currently involved in it.

I was pleased that the right hon. Member for Horsham said that he would approach the Committee stage constructively. I hope that that will happen. I recently endured the Committee stage of the International Development Bill. All hon. Members supported it and our Committee stage should therefore have been useful—but it was not.

Mrs. Cheryl Gillan (Chesham and Amersham)

It is interesting to know that the hon. Gentleman does not believe that the Committee proceedings on the International Development Bill were useful. For hon. Members' information, five new clauses were not even debated because we ran out of time. I was not aware of any truly constructive contributions from Labour Members; Conservative Members made them all.

Mr. Worthington

If hon. Members examine the record of proceedings, they will realise that it is difficult to interrupt a monologue. We had to endure a monologue from the hon. Lady. Her approach was not constructive, and she gave us no opportunity to make suggestions.

I concede that there should be many opportunities to consider the details of the Bill and for Members of all parties to make constructive suggestions. If the hon. Lady leads for the Opposition in Committee, I hope that she will approach the Bill in that spirit. She will then realise that Labour Members can contribute constructively if they are allowed to do so.

We should greet this important measure enthusiastically. It is being introduced at the end of the Parliament, and I am proud of our achievement. Let us get the proceedings under way and then make the necessary improvements.

7.6 pm

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)

My party supports the Bill warmly and unequivocally. I have long taken a great interest in the extension of the effectiveness of jurisdiction over crimes that are committed internationally. Within 12 months of becoming a Member of Parliament, I introduced a little-remembered measure, the Tokyo Convention Bill, to enable the then Labour Government to ratify that convention and thus deal with crimes, including hijacking committed on board aircraft. It is therefore satisfying not only that such a major and historic step forward in extending international criminal jurisdiction over war crimes was agreed in the 1998 statute of Rome, but that we are among the first to try to implement it.

I want briefly to mention the position of the United States, in which I have a peculiar personal interest. The United States has not always been reluctant to get involved in establishing an international criminal jurisdiction to deal with war crimes and crimes against humanity. In the last years of the second world war, the American Administration took on Churchill as Prime Minister and Viscount Simon as Lord Chancellor, who sought to deal with the top Nazis by simply lining them up and shooting them as a political act. Led by John J. McLoy, who was assistant Secretary for War, and Judge Sam Rosenman, the American Government took the view that it was important to bring those criminals to justice. They argued intensively with the British Government for two years. It was not until the San Francisco conference that Anthony Eden was finally forced to agree. I have a particular interest in that, because my late American father-in-law, who was later the president of the American Law Institute, was the counsel to Jack McLoy, who came to this country and drew up the documents that were ultimately ratified in San Francisco.

I therefore ask the Americans to look to their history and see what an important role they played in establishing this approach to dealing with the scourge of the 20th century—the horrors of crimes committed in war, which have violated the Geneva conventions and whose perpetrators have not always been effectively brought to justice.

The American Administration—both the present Administration and that of President Clinton before it—have felt some inhibitions about the process—perhaps for political reasons, but also because Americans have been brought up in a climate of constitutionalism, which makes them keen to ensure that any steps they take do not result in a denial of due process to their own citizens. However, it has to be said that by taking their present stance on this matter, they have done little to protect American citizens—a point that has been well made by at least as many authoritative lawyers in the United States as have been cited on the other side of the argument by the official Opposition.

States that adhere to the statute of Rome will be at liberty to prosecute American citizens under their own domestic arrangements, whether or not the United States decides to adhere to the system. Indeed, if the United States does not adhere, under the terms of the statute it will be open to the International Criminal Court to prosecute American citizens who have committed international criminal offences. It is therefore hard to see the argument that lies behind the current American position.

I much prefer the argument deployed by the Foreign Secretary when he opened the debate: that by adhering to the system, ratifying the statute and enacting the provisions that incorporate into our domestic law crimes under the statute, we enable ourselves to deal with such matters within our own jurisdiction. That is the same broad principle that was cited in support of the incorporation of the European convention on human rights into our law. It is better to have rights secured by our domestic law, so that such crimes can be handled by our domestic courts—and it seems to me that that argument applies as much in the United States as it does in our own different constitutional situation. Moreover, there is no reason to believe that the countries that have come together to draft the statute, with such regard to process, will create a system that offers less protection than the due process of law enjoyed by citizens of the United States within that country. Surely this country is right to be among those that seek to bring the provisions into early effect. We must recognise that the great doubt that people in this country have had about the efficacy of international law has stemmed largely from an awareness of the impotence of international law in the face of the most monstrous crimes in history committed in the last century—its impotence to do more than denounce the offences, and its failure to bring to justice the Pol Pots, the Idi Amins, the Saddam Husseins and the others whose names will reverberate throughout history for the monstrosities that they have been guilty of perpetrating.

This development must be welcomed in broad terms, and it is right that the British Government should seek to lose no time in bringing it into operative effect. In passing, however, I would like to say a little about the process domestically. A number of people in both Houses of Parliament, including myself, have taken the view that Westminster's procedures for the scrutiny of treaties have been deficient. The speech by the right hon. Member for Horsham (Mr. Maude) to some extent demonstrated the need for different procedures, because by using this adversarial forum he was able to make a number of assertions that would not stand up to the kind of scrutiny to which they ought to have been subjected before the Bill was brought before us.

If we had automatic pre-legislative scrutiny of treaties, I believe that the right hon. Gentleman would not have been able to cite The Daily Telegraph's unnamed authorities as evidence in support of his views. If Admiral Boyce, to whom he alluded, had raised a serious objection, it could have been scrutinised and argued about specifically in Committee.

Mr. Maude

I was not relying on the report in The Daily Telegraph; I was using it to show that when that remark was quoted, that was all the evidence that we had, because the transcript of the evidence given to the Committee was not available. The Minister in the other place brushed everything aside as mere reports, but it turned out that at the same time, the Chief of the Defence Staff had expressed serious concerns before a Committee of this House investigating another Bill. Despite that, Ministers were pooh-poohing such suggestions and saying, "There's nothing to worry about; the military are happy about this." That was simply not true.

Mr. Maclennan

I do not think that the right hon. Gentleman is invalidating my point by referring to Admiral Boyce in that way. He may even be fortifying my case for better and more direct scrutiny of the concerns of such people. A remark made in that way, which was clearly not central to the considerations of the Committee in which it was made, was not capable of being examined or answered either by the members of the Committee or by the Government, who, if the military had general concerns, had no doubt considered such matters with them in the consultative process.

Mr. Corbyn

The right hon. Gentleman has hit the nail on the head. Does he agree that one of the great problems is that not only does this House have no right to pre-scrutinise treaties, but it has no say whatever over treaties, only over the consequential legislation? Does he not accept that that is a serious flaw in our democratic process?

Mr. Maclennan

I accept that. I do not argue against the idea that the treaty-making power—the prerogative power—goes effectively unscrutinised, save by the grace and favour of Her Majesty's Ministers. In a modern democracy, that seems wholly unsuitable.

I must acknowledge that there has been some modest movement in the right direction in the past year. In its second report of the Session 1999–2000, the Procedure Committee sought to ensure that if a treaty was laid under the Ponsonby rules, it would be referred to the appropriate Select Committee of the House—appropriate, that is, in the opinion of the Government. Twenty-one days were to be set aside to give consideration to the treaty. We have, therefore, made a modest step in the right direction, although I do not believe that it is nearly enough. I was sorry that the Liaison Committee in another place decided that, owing to resource constraints—which, of course, I understand—it would not at this time set up a comparable Committee, although there are certainly experts in matters such as these in the other place.

If we had had that kind of scrutiny, it would not have been possible for the Opposition to seek to throw dust in the jurymen's eyes in the way that they did, in the long and wholly unpersuasive speech by the right hon. Member for Horsham. He lost sight of the overall objective in raising his concerns in a rather non-specific way. Some of his points had already been answered by the Foreign Secretary. His concern about our military personnel being whisked off to the International Criminal Court by a prosecutor acting irrationally not only seemed fanciful but appear to have been provided for by the fact that the ICC could not proceed in such a case if the matter was being acted on in this country. Such circumstances would block the ICC taking any action.

I look forward to the Bill going into Committee, where I have no doubt that we shall hear in greater detail some of the arguments that have been deployed in rather general terms today. However, we should not allow such matters to deflect us from the substantial step forward that this provision represents for the international community. Many of the decisions taken in the work leading up to the agreement of the statute in 1998 were wise ones. They built on the substantive public international law that existed: it was not a legislative process in that sense.

The procedural arrangements, in whose establishment the British Government played a major part, seem calculated to give reassurance that, although there will be differences in the way in which we conduct criminal trials—there will be no guarantee of a jury, for example—the rule of law will operate. Extensive effectiveness will be achieved as a result of these measures.

This is one of the most important Bills that I have encountered in my 35 years in the House—I celebrated my anniversary on Saturday. In my youth, I was very idealistic about the extension of world peace through world law. I remember reading at that time a famous book by Emery Reeves, called "The Anatomy of Peace". Since then, I have felt more and more that that was a hopeless aspiration. The Bill to some extent rekindles the aspiration towards a deterrence to the kinds of acts that have scarred the previous century, and which I hope will be a diminishing experience in international society in the century in which we now live.

7.24 pm

Mr. Andrew Mackinlay (Thurrock)

Before I come to the Second Reading of the Bill, I note that the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) alluded to his 35 years in the House. I suspect that his speech might be his last substantive contribution in this Chamber, although perhaps not in this palace. I hope that he will be resurrected in the gentle pastures of another place. Despite the fact that he started out as a Labour Member of Parliament, and went to lead the Social Democratic party before becoming a Liberal Democrat, I would like to place it on record that, during the two Parliaments in which I have been in the House, he has been a Member for whom I have had admiration. I also appreciate his never-ceasing courtesy and friendship.

I welcome the Bill and recognise how important it is, but I am frustrated that it has taken so long to reach Second Reading. The Canadian Parliament secured Royal Assent for the equivalent legislation last June. I studied the Canadian legislation and introduced my own Bill, modelled on the Canadian law, some months ago. That process showed me that there was greater clarity in the Canadian law than there is in our Bill.

Before the Bill goes into Committee, perhaps the Minister will revisit the Canadian legislation. I shall give a small example of how it helps in terms of clarity and reassurance. Part of it states: In proceedings for an offence under this Act the accused may rely on any justification, excuse or defence available under the laws of Canada or under international law at the time of the alleged offence or at the time of the proceedings. We do not have a comparable clause, no doubt because our draftspersons considered it unnecessary. It is often useful to have such a declaration in a Bill, and a similar provision might have gone some way towards assuaging the concerns expressed by Her Majesty's Opposition.

This is a profoundly important occasion. If we look back over the past 100 years, we see that legislators here and in other democratic Parliaments have tried—they failed, but they tried—to build up, in a fragile way, some international jurisprudence and international tribunals to combat the appalling atrocities of genocide, war crimes and so on. In that context, reference was made to the Nuremberg trials.

I am something of an amateur student of the first world war, and it is interesting that the guiding light for the proposals that we are now discussing was one of the good aspects of the much-discredited treaty of Versailles, articles 228 to 230 of which provided for an international court to deal with war crimes. Eighty years ago next month, trials were opened in the Supreme Court at Leipzig, as a consequence of the treaty, to deal with war crimes. It is true that the trials took place under a German court, but the British team of observers gave them a clean bill of health.

I mention those trials not only for anecdotal reasons but because they were conducted domestically, and the international observers—including the British—thought that they were conducted fairly and appropriately. Our primary intention must be to ensure that the trials of those who commit war crimes and atrocities are heard in domestic courts. That was achieved, to some extent, 80 years ago.

A significant British jurist who was part of our representation at Leipzig wrote: 'In my view the object of the War Criminals' Trials at Leipzig was to establish a principle, to put on record before history that might is not right, and that men whose sole conception of the duty they owe to their country is to inflict torture upon others, may be put on their trial. As a result of the Leipzig Trials the fact is now on record that German soldiers and sailors have been put into prison by their own countrymen, who acted through no slavish coercion by a successful enemy, but because their consciences were outraged by evidence which their honesty forced them to admit. History will pay far more attention to sentences on German soldiers and sailors of six or ten months' imprisonment, passed by a German Court, than it would to far longer sentences passed by 'military tribunals' of the 'Allied and Associated powers'. That is a true principle and it should be our primary objective. Trials must take place in domestic courts, but we must have the international court as a safety net in case of failure so that despots and people who fail to recognise wrongdoing can be arraigned before the international community.

Mr. Andrew Rowe (Faversham and Mid-Kent)

I am listening carefully to what the hon. Gentleman has to say and I derive from it the comforting thought that, possibly under the new court, we shall depart from the principle that war criminals are always thrown up by the losers, but seldom by the victors. Does he share my budding optimism?

Mr. Mackinlay

That is absolutely correct. It leads me, very appropriately, to a matter that the shadow Foreign Secretary and my right hon. Friend the Foreign Secretary debated. With the greatest of courtesy, I think that both did not so much get it wrong as miss the point.

The shadow Foreign Secretary kept coaxing my right hon. Friend to give an undertaking to reassure those whom he described as our senior military officers—he did not name them—that British soldiers would never be brought before the court. I was somewhat disappointed that my right hon. Friend said that there is no need to make such a declaration as a codicil to our ratification, claiming that it simply would not happen. In a way, that is wrong and slightly foolish. It is wrong because, if we are confident about our position, we should ultimately be prepared to be tested by institutions by which we expect everyone else to abide.

I could cite recent cases, but that might create controversy, so I shall give two historical examples: the massacre at Amritsar, which most people recognise was wholly unjustified, was carried out on the orders of British officers, and no prosecution in the British courts followed the sacking of Cork city by Crown forces 80 years ago. If an international court or institution had existed then, it could have said to the United Kingdom Government, "You have failed, for political reasons, to recognise that Crown forces engaged in wrongdoing. If we have the opportunity, we shall arraign those responsible before the International Criminal Court."

Those examples show why the United States is unhappy about the court. The massacre at My Lai, in which Lieutenant Calley ordered and committed such atrocious murders, is within the memory of every Member in the Chamber. Although he went through some form of trial in the United States following massive public pressure, it became a charade. We must recognise that even in what we consider to be proud democracies with good court structures, people sometimes fail for political reasons.

We can never say that we will always be able to do that which is right. Therefore, we should submit ourselves to the international court, recognising that, even in our case, politicians, generals or subordinate officers could be subject to it in extreme circumstances, and rightly so.

Mr. Brazier

The hon. Gentleman takes considerable interest in the armed forces. When people put on the Queen's uniform, they accept obedience to their civilian masters. If someone is answerable to a British court martial, he is tried by his peers—people who understand the pressures that he was under. If he goes before a jury, he is tried by his civilian peers. The point about the international court is that legal specialists with no military experience will be able to second-guess a British legal investigative process that may have concluded that neither of those two forums would ever have convicted the man.

Mr. Mackinlay

The point is that the veracity of our courts martial system must be subject to a litmus test of fairness. If we have in place some pretty good ground rules for courts martial, the International Criminal Court will not come banging on the door of the Foreign Secretary or the Secretary of State for Defence, saying, "We want this officer." We would be able to show that matters were being thoroughly pursued and prosecuted and that appropriate sentences would be passed.

Mr. Blunt

That is an extremely important point. The hon. Gentleman refers to a test that must be satisfied and what he considers to be the entirely reasonable actions of our courts martial. He described as a charade the trial of the officer involved at My Lai. I am sure that that was not the view in the United States. Judges will be elected by a majority following a secret ballot of the states that are parties to the convention, and their view of what is a charade or a fair trial may be different from his.

Mr. Mackinlay

In the My Lai example, it is generally held that the court proceedings, the decisions and the executive action of the President of the United States were perverse: the President of the United States—under executive action, not judicial authority—allowed the guy to go home. Clearly, that would not be permissible, and the beauty of the ICC is that it would counteract the judgment of Presidents or Prime Ministers in acting so wrongly.

That leads me to my next point, which was not discussed by the shadow Foreign Secretary and my right hon. Friend the Foreign Secretary. The historical importance of the legislation will relate not so much to the commander in the field as to Presidents, Prime Ministers, Foreign Ministers and Defence Ministers, who will have to pay regard to proportionality. The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) referred to the use of atomic weapons, but nothing will be changed by the measure. Surely we believe that regard should always be paid to proportionality.

My hon. Friend the Member for Linlithgow (Mr. Dalyell), who is not in his place, has been exercised about the Falklands conflict. I do not always agree with either his historical analysis or his conclusions, but I remember him probing on an unanswered question. Had the aircraft carrier gone down in the South Atlantic, Prime Minister Thatcher would have faced political and military defeat and it has been suggested that using battlefield nuclear weapons on Punta Arenas against Argentina was at least contemplated. I do not want to debate whether that necessarily happened, but some good people think that the possibility was at least explored.

That is where the legislation is important. It will temper the ability of Prime Ministers to use weapons out of all proportion and scale to the situation to save their political bacon. Its long-term effect will be to make people exercise their political views much more cautiously when committing armed forces to conflict.

Mr. Gerald Howarth

If the Bill is enacted, might not a sword hang over a future British Prime Minister? Might not that Prime Minister hesitate before deploying weapons that could protect British troops' lives? Surely the first responsibility of Members of Parliament is to protect our troops, whom we send into battle on our behalf.

Mr. Mackinlay

That has always been so. At present, mercifully, our Governments—Labour and Conservative—have regard to the existing rules of war. If we took the hon. Gentleman's argument, if I can term it thus—he advanced it in the form of a question—to its logical conclusion, we would not agree to existing Geneva conventions and codes of war.

We are, after all, merely building on an arrangement that already exists. We are talking about something that is fragile and inadequate, but we are adding an extra building block to the conduct of international relations and the conduct of war, while reminding politicians and commanders that they must have regard to proportionality. Of course there will always be collateral damage—innocent people will be killed in any war—but politicians and commanders must have greater regard, or at least continuing regard, to balance.

I am surprised that one matter has not been raised—I shall raise it now. I recognise that no easy decisions were involved in the controversial area of the bombing of Dresden, and Nuremberg. Historians will debate the issues for decades. It could clearly be argued that there were military objectives for the bombing and overriding reasons for it to happen, and it is equally clear that many people take the opposite view, but I do not believe that the head of Bomber Command or Winston Churchill could or would have been brought before the international court, because it was obviously a grey area. We are talking about despots, who will use weapons of mass destruction—or genocide—without regard to what represents at least some semblance of justification in terms of the war objective.

Mr. Howarth

rose—

Mr. Blunt

rose—

Mr. Mackinlay

I shall give way to the hon. Member for Aldershot (Mr. Howarth) first, and then give way to his commander.

Mr. Howarth

I am grateful to the hon. Gentleman.

The hon. Gentleman says that he dismisses out of hand the idea that the court might have indicted Sir Arthur Harris or Winston Churchill: he says that it is inconceivable that it would have done so in the circumstances. I put it to him, however, that he cannot give the House, our armed forces and the people of this country that absolute certainty, because the court will have a life and a momentum of its own.

Mr. Mackinlay

I can tell the hon. Gentleman and the House that if the had legislation existed, Bomber Harris, Winston Churchill and other commanders would simply have had to contemplate a bit earlier in order to feel confident that, if challenged, they could advance a justification for what had been a very painful decision. We are, as it were, cautioning politicians and commanders that they must take account of certain considerations.

Mr. Blunt

Will the hon. Gentleman give way?

Mr. Mackinlay

Yes, but for the last time; otherwise I might tax the patience of the House, and I have one or two more things to say.

Mr. Blunt

The hon. Gentleman said a moment ago "We are talking about despotic regimes." What he must consider, however, is not just Dresden as a matter of history, but Baghdad as a matter of current events. He must consider circumstances in which the United States and the United Kingdom are on their own in taking actions that will be judged by judges elected through a secret ballot of the majority of the states participating in the treaty.

Mr. Mackinlay

That is indeed how the court will be constituted, but I invite the hon. Gentleman to consider this: unfortunately, the rulers of even the regimes that he and I would consider to be despotic have considered themselves to be legitimate. If the big players such as the United Kingdom and France are not prepared ultimately to submit themselves to an international court, how on earth can we expect the baddies of this world to do so?

As in so many instances, we must say that we are confident enough about our rules for decision-making and our concept of justice to be prepared to submit ourselves to a judicial regime, so that we can exert leverage on regimes we do not like and cause them to submit themselves to this system, or—I shall return to this point—at least persuade them to hold courts in their own jurisdictions when there has been flagrant disregard of, for instance, the rules of war.

Clause 65 lays down explicitly the rules to which commanders must have regard. I expect that they appear in other statutes, but they are useful here as an aide-mémoire for politicians and commanders. The Secretary of State for Defence is not present, but if he were I would have a go at him. In the past year I asked a parliamentary question about Sierra Leone: I wanted to know how many irregulars had used United Nations uniforms or insignia to deceive the Sierra Leone forces or, indeed, British forces. The Secretary of State was very dismissive, as can be seen in Hansard, and I was a bit put out. I am pleased to note from article 8, on page 72, that making improper use of a flag of truce, or of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury is now considered to he a serious international offence. That is an important step forward: the provision will be on our statute, and enshrined in law.

Mr. Gerald Howarth

Where is that?

Mr. Mackinlay

It is on page 72. I will show the hon. Gentleman where it is later.

Let me say something about a matter on which I intervened on the Foreign Secretary earlier. I understand that, under the Criminal Justice Act 1988, the House accepted that there should be universal jurisdiction in respect of cases of torture, enabling United Kingdom authorities to feel the collars of those who might be transient—passing through; just touching the soil—to take them into custody and to prosecute them for torture. Regardless of whether such people are United Kingdom citizens and regardless of whether they are resident, the fact that they are within our jurisdiction enables us both to arrest and to prosecute them. We have not, however, applied the same test in this Bill, and I know that that was questioned by some noble Lords.

I think we should make it abundantly clear that if it is in our capacity to arrest anyone who is guilty of war crimes, genocide or the other matters to which the Bill relates, and to hand that person to our domestic courts where he or she could be tried under the Bill, we should do so. There should not be this blurred, vexatious appeal provision, which is open to misinterpretation—the test of whether such people are resident.

Mr. Worthington

I am glad that my hon. Friend has raised this issue. As he probably knows, the Canadians have used the test of presence in the country rather than residence. Would it have been possible to define Pinochet as a resident? He was certainly present. I think that we should explore the matter in Committee.

Mr. Mackinlay

I have probably missed the most obvious example. Pinochet was present in our country, but he was not necessarily resident according to United Kingdom case law. I hope that we will revisit the issue in Committee to make it watertight, and to ensure that we fulfil both the spirit and the letter of our obligations.

I am proud to have been involved in the debate. I think that when we look back on it in 20 or 25 years the workings of the International Criminal Court will still be embryonic, or at least in their infancy, but we may feel that this evening we took a great step forward that has been denied to other generations. We have tried to create an international criminal court, and to ensure that the despots and wicked people who have killed and maimed whole generations—sometimes whole nations—and have brought good people to war cannot feel that there is a hiding place for them anywhere in the globe.

7.50 pm

Sir Nicholas Lyell (North-East Bedfordshire)

I am glad to speak in the debate. The Bill has a noble objective. Every hon. Member would be anxious to see the all too many dictators, international war criminals and perpetrators of genocide brought to justice. In so far as the Bill facilitates that and achieves the bringing to justice of those whom we would all recognise as serious war criminals, it will have our support. In raising a number of serious questions, I do not wish to resile from my support for that noble objective, but there are serious questions about a Bill that hands international jurisdiction to the world at large in circumstances where we who have very high standards and do everything to maintain them—even if we sometimes fail—lose control. That is why I understand clearly the worries that the United States has. Perhaps I am expressing some of those concerns when I express my serious concerns about the Bill, and my hope that we can make sufficient improvements to it in Committee to overcome them.

For obvious and genuine reasons, the concern tends to be articulated most spiritedly in relation to our own armed forces and to those of the United States. The possibility that they might find themselves arraigned before the International Criminal Court in circumstances that we would think were thoroughly unjust is a genuine concern. The question of whether the Bill complies with article 6 of the European convention on human rights—someone's right to a fair trial in all its aspects—needs to be crawled over in Committee, but I want to deal with the bigger issues of war and peace.

When one is dealing with international war and peace, one is dealing with very difficult issues. Terrible decisions have to be made in the context of international law. Although perhaps 90 per cent. of international law is universal, the most crucial 10 per cent. is often on the margin.

I was Solicitor-General at the time of the Iraq war, when we were bombing Iraq in a formidable way. I was Attorney-General when we were over-flying subsequently and doing many of the things that we are still doing in Iraq. I could sympathise with the present Government when they had to deal with the difficult questions of Kosovo and of international law that underlay the bombing of Yugoslavia in the recent Kosovo war.

I mentioned in my intervention on my right hon. Friend the Member for Horsham (Mr. Maude), the shadow Foreign Secretary, the views of Mr. Mark Littman QC. Although on balance I do not agree with those views—he condemned what we did in the bombing of Yugoslavia as disproportionate and consequently contrary to international law—it is a genuinely difficult question on which it would be possible for international tribunals to hold different opinions.

When it comes to the use of nuclear weapons, one is on very difficult ground indeed, particularly internationally. Let me focus on that point in the context of the way in which the international community views nuclear weapons. About five years ago, the General Assembly of the United Nations raised a question before the International Court of Justice at The Hague. I personally argued the United Kingdom case before that court.

The General Assembly, backing up the World Health Organisation, which I fear had suffered from a bit of entryism, although the General Assembly cannot be accused of that, questioned the legality of the use of nuclear weapons in any circumstance whatever, whereas we in the House today know perfectly well that the ability at least to use nuclear weapons was an absolute essential in the maintenance of peace between about 1950 and the collapse of the former Soviet Union.

The General Assembly said that nuclear weapons could never be used. The judgment of the international court left the door open to the possibility of their use in proper defensive circumstances—it is difficult to construe, but it did leave that door open—but what would be the position if we did have to consider using them? Heaven forbid that we should ever again have to consider using them in the context of Hiroshima and Nagasaki, but if we look carefully at page 72 of the Bill and at paragraph 2(b)(iv) and (v) of article 8, we will ask ourselves whether we were entitled to use nuclear weapons in those circumstances. That is a genuine question.

Mr. Mackinlay

That point has exercised me a lot. The right hon. and learned Gentleman is an advocate and has no doubt provided defence for people in the past. The defence of the United Kingdom and United States in relation to the use of atomic weapons is based on proportionality: invading the land mass of Japan would have involved a colossal and disproportionate loss of allied soldiers' lives, and there was an obligation to minimise the loss of our service men. That was the defence, and it would be accepted as a reasonable defence. For the record, I do not want people necessarily to think that I am defending the use of nuclear weapons, but I can understand the defence. It is legitimate. It is not a grey area. The bomb was a weapon and one has an obligation to use a weapon to minimise one's losses of service men in war.

Sir Nicholas Lyell

The hon. Gentleman, in second world war terms, makes a powerful case, but we may be talking about very different circumstances. Consider how the International Criminal Court is made up. At the moment, 137 state parties are signatories. I understand from my hon. Friend the Member for Reigate (Mr. Blunt) that there are about 170 members of the United Nations General Assembly, so the great majority of the General Assembly—the body that is opposed to the use of nuclear weapons at all—elect the judges. They elect 18 judges and the prosecutor by secret ballot. It is therefore possible that they will elect judges and a prosecutor who have a no doubt absolutely bona fide genuine dislike of a number of things on the international scene, including nuclear weapons. They may have a strong view about the attitude that we are taking to Iraq at the moment. We know that our attitude to Iraq is controversial in international terms, although we believe it to be right. The possibility is wide open that those who prosecute and those judges might take a very different view of the bombing of Yugoslavia: they might consider it disproportionate.

In those circumstances, look at the position of the soldier, sailor or airman, which is what has been concerning our senior officers, including Admiral Boyce. We tend to use our armed forces as surrogates for our politicians in these matters. There will be those who will see the decision of our Prime Minister in Yugoslavia in a very different light—and who would have seen the decision of our then Prime Minister, Margaret Thatcher, on the Belgrano incident in a very different light. I have no hesitation in saying—I was Parliamentary Private Secretary to the Attorney-General and had a close insight into the matter—that the Belgrano was an extremely dangerous warship even if it was very old-fashioned. It was tragic that it was manned by a very large number of inexperienced young men who lost their lives, but it had to be dealt with. The fact that we had an extremely modern submarine that could do that without posing too great a danger did not mean that we were not justified in doing it. An international tribunal might have taken an entirely different view on the matter had the commanding officer of the submarine, the senior officers or a senior British politician involved in the decision come before it. Those issues are bound to haunt us. Although the hon. Member for Thurrock (Mr. Mackinlay) was right that we should consider those issues, they are also bound to haunt those who take such decisions.

Mr. Gapes

I am not quite clear where the right hon. and learned Gentleman's argument is leading. I suspect that it may be leading to the conclusion that we should tear up our obligations under the Geneva conventions, reject the non-proliferation treaty and adopt a unilateralist view of the world that does not take into account international law in any form because it might be inconvenient for us. I hope that that is not what he is suggesting.

Sir Nicholas Lyell

Indeed it is not—and I noticed the hon. Member for Thurrock worrying about the same thing. I believe very strongly in obedience to international law, and for 10 years I was personally responsible for doing everything that I could to ensure that our Government obeyed international law. I also believe that, in that period, they did obey international law. However, it is a matter of who judges and of whether one is judged by an independent and impartial tribunal that does not have a political agenda. I merely flag that up as a warning, which could be overstated. Nevertheless, we have to think very carefully about what would happen in relation to such issues should they be considered by the international court.

Let us consider the role of the prosecutor. Who will control the prosecutor? The answer is that the prosecutor will be controlled partly by the pre-trial judges. In theory, ultimately, the Security Council will also have some control over the prosecutor. However, whereas in this dangerous world the Security Council cannot do anything positive without unanimity because each member has a veto, in this case, although the United Kingdom, the United States, France and perhaps every other Security Council member—except, hypothetically, let us say Russia or China—believed that a prosecution on which the international court was minded to proceed was really quite disproportionate and inappropriate, they could not stop it unless every member at least withheld its veto. Therefore, that degree of control which has been a very important part of the working of the Security Council in the 50-plus years since the United Nations was established does not work in quite the same way in this case.

I am anxious that we may have to take decisions in matters of war and peace in which our service personnel and our politicians may find themselves subject to prosecution by the international court in circumstances in which we know that that would not be appropriate, and that that might prevent the taking of very necessary and difficult decisions in the international sphere—in relation to Iraq, for example—that we would otherwise take. I can quite see that that is an underlying worry for the United States that we shall have to tussle through and consider very carefully indeed. Those are the main points that I wished to flag up as warnings in relation to the Bill.

Senator Pinochet was mentioned earlier in the debate. I always felt that the people to try Senator Pinochet, if they thought it right, were the Chileans. That is now the position. He is in Chile, and that is correct. However, there is a difference between the European convention on extradition and that proposed in the Bill. In the European convention on extradition, the Home Secretary has a residual right not to surrender someone, for whatever reason he considers proper. Of course, if, in the Home Secretary's view, someone is rightly accused under international law, he would not exercise that right to prevent extradition.

The Bill provides for no such residual right and residual power. It is therefore possible that our armed forces and those to whom our country entrusts those very difficult decisions—the Government of the day—could find themselves subject to courts in inappropriate circumstances. I believe most profoundly that that detracts not one iota from our duty to obey international law. To the extent that the Bill will heighten the realisation that we must obey international law, it will do good. However, if it were to inhibit us in the next 50 years from taking the desperately difficult decisions that have affected war and peace in the past 50 years, so that the member states that elected the judiciary and the prosecutor but did not have to carry the heat and burden of the day were to inhibit necessary, dangerous and difficult decisions, it might do long-term damage.

I hate to pour a little cold water on a Bill that has such noble objectives, but the objective of this House is to ask the difficult questions in the hope that they can be satisfactorily answered.

8.6 pm

Mrs. Louise Ellman (Liverpool, Riverside)

On 27 January 2001, a very important event took place in Central Hall in London. That event was the commemoration of the very first national Holocaust memorial day. Those who were present at that very moving and very serious event will have been struck by the way in which the event itself underlined the reason for having a Holocaust memorial day in the United Kingdom. It was about remembering and learning from the lessons of the Holocaust; remembering other horrific acts of genocide, such as Rwanda, Cambodia and Kosovo; and reinforcing the importance of individual responsibility. When the Prime Minister, in his contribution to that ceremony, referred very graphically to a scene from the very powerful film "Schindler's List", the importance of that individual responsibility was highlighted.

I think that it is very appropriate that this Government—the same Government who instituted national Holocaust memorial day—are seeking in the very same year to ratify the International Criminal Court, and to do so as one of the first 60 signatories which are required to enable the court to go into action.

It seems that we have not learned very much in the past 50 years, during which there have been more than 250 conflicts and more than 86 million civilians have died. In the 1970s, 2 million people—40 per cent. of the population of Cambodia—were killed by the Khmer Rouge in the killing fields of Cambodia. We know of other atrocities, some of which have already been mentioned in this debate.

We need an International Criminal Court. Currently, no international body can hold individuals, rather than states, to account. The idea for a court of this nature is not new. Indeed, we have to be persistent in pursuing and securing justice. In the 20th century—from the treaty of Versailles to the formulation by the League of Nations, in 1937, of the protocol establishing an International Criminal Court, to the tribunals of Nuremberg and Tokyo—some progress has been made. It was President Truman who described the Nuremberg tribunal as The first International Criminal assize in history". There have been ad hoc tribunals for the former Yugoslavia and Rwanda, and the Geneva conventions have been accepted. However, the basis for the Bill was established in some detail 50 years ago, when the United Nations General Assembly adopted the conventions on genocide and invited the International Law Commission to study the establishment of an international judicial organisation to deal with genocide. That was in December 1948. Now, in April 2001, we are here on this historic night in the House of Commons Chamber, debating the legislation that will assist that court to go into action.

Our discussions tonight flow from the Rome statute signed in July 1998, which the United Kingdom signed in November of that year. According to the most recent information available on the UN website today, 139 nations have signed the protocol establishing the ICC, and 29 states have ratified it.

If this country adds its name to the ICC's ratification at this critical time, we will be one of the first 60 countries to do so. That will mean that we have played a crucial part in setting up that international court.

It is important that the court be set up, and that that is accomplished speedily. It would be a permanent standing court, dealing with the most heinous of crimes—genocide, war crimes, and crimes against humanity. It would not suffer from the selectivity and difficulties encountered by the ad hoc tribunals that we have at present, good as their work has been.

The ICC would enshrine in an international court the principle of individual responsibility. It would establish the principle that individuals cannot hide behind the orders of a superior. There would be no immunity for anyone found to have acted in a horrendous way. In the words of Robert Jackson, chief prosecutor at the Nuremberg international tribunal: The idea that a state commits crimes is a fiction. Crimes are committed only by persons. We forget that at our peril. If we are truly concerned about individual responsibility and accountability, we must never the forget the responsibility of individuals for what they do.

The Bill will also encourage states to take their own actions to deal with horrendous crimes. The principle of complementarity enshrined in the Bill is important, as is the principle of automatic jurisdiction. The provisions making British domestic law compatible with what is to be implemented internationally are extremely important. All those factors taken together make it more likely that states will take their responsibilities seriously.

Setting up an International Criminal Court such as that described in the Bill in a proper and considered way will not only bring to account those who have committed heinous crimes but will act as a deterrent to the potential criminals of the future—the future Pol Pots—and perhaps the future actions of Saddam Hussein.

Various hon. Members have spoken about the possible difficulties that could arise from the ICC's proceedings, and I take them very seriously. For those of us who really care about international justice and about bringing those who commit atrocities to account, it is equally important that we look at the detail of what we are doing. It would not be acceptable for the ICC to be right in principle but to fail in practice, and we must not allow that to happen.

I therefore agree that it is very important that there should be proper scrutiny of the detail of the Bill and of the provisions for the International Criminal Court. It is important that the pre-trial chamber properly assesses cases before they go to trial. It is important too that three judges will have to decide that there are substantial grounds to take a case to the ICC before that case can proceed.

It is essential that the prosecutor should be independent and that he or she can be removed if it is thought that he or she is not acting in a proper or impartial manner. It is important that the prosecutor should be able to defer to states that are able and willing to conduct their own investigations. It matters too that the Security Council can defer investigation for 12 months if the prosecution stands in the way of international peace and security.

Those and other points matter, and it is of the utmost importance that the detail of the court's proceedings are considered properly, but that must be done in the spirit of wanting the court to succeed. We must be determined that the court will be set up as soon as possible, and that it will be efficient. It must be accepted by everyone as having the highest standards.

Elected Governments do many things. They make policy—as is happening tonight—and set a moral lead. By pressing ahead with setting up the International Criminal Court now, this Government are doing both. As Kofi Annan said:

In the prospect of an international court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. Only when no state, junta or army anywhere can abuse human rights with impunity will the innocents of distant wars and conflicts know that they too may sleep under the cover of justice. They will know that they too have rights, and that those who violate those rights will be punished. Setting up the International Criminal Court is a major step forward for humanity. For the United Kingdom to make that happen in the same year that it instituted national holocaust memorial day will give this country an important place in history. I feel proud to have been able to play a very small part in enabling that to happen.

8.18 pm

Mr. Martin Bell (Tatton)

I shall, as always, be extremely brief. I have listened to the debate with great interest and, when it got partisan, not a little dismay. If ever an issue required seriousness, this is it.

In some three hours, I have heard no mention of the quality of justice that the International Criminal Court will dispense, nor of the safeguards that it will offer to the accused. It is important that someone should make the case—and I am willing to do so—for the rights of accused alleged war criminals. That is especially true if people such as Milosevic, Mladic or Karadzic appear before the court. In cases such as that, a miasma of perceived guilt will attach to the accused.

Such matters are difficult. Nuremberg passed the test, but I am not sure that the criminal tribunal in The Hague passes it, and that is the model on which the ICC is to be based.

I speak from experience. Inevitably, I have been closer to war crimes than most hon. Members. I know the pile of ash and bone that is left when a family is burned alive in its home, and the son and father have tried in vain to defend their relatives. I know what mass graves look like, and I know the stench of death. I know the tatters of clothing and bloodstains that mark scenes of mass execution.

I have given evidence and depositions to prosecution and defence lawyers at the Hague. In every case from the first Tadic case onwards, the defence lawyers felt that the scales of justice were weighted against them—more or less perceptibly, but in every case. I testified in the case of Tihomir Blaskic two years ago. Blaskic was the senior colonel commanding the HVO Bosnian Croat forces in the Lasva valley in central Bosnia during the vicious side war between Muslims and Croats in 1993 to 1994.

I gave evidence for the defence; I believed that there was no proper command and control, and that the Ahmici massacre, of which Blaskic was accused, was the work of freelance forces beyond his control. He was, however, convicted to a virtual life sentence. Now we know from documents found in the palace of the late President Tujman that he was indeed outside the command loop at the time. I trust that his appeal will succeed. Blaskic was one of many who was held for years before being tried. Are we proposing that the International Criminal Court have the same dilatory processes of justice? I hope not.

There is also a problem with the judges. They will come, as they must, from many countries and diverse judicial systems. They will be at the peak of their careers and, we hope, at the peak of their powers. In fact, many of them are quite elderly. In a case that may last a year and a half, one may have to drop out for reasons of ill health and then the defendant will have the right to have the whole case heard again. Blaskic chose not to, and he may well wish that he had, because one of the judges was simply not there for the taking of half the evidence at his trial. If that is the kind of system that the ICC will adopt, I think that we should consider very carefully the rights of the accused, however notorious they may be.

I get the impression that the international criminal tribunal at The Hague dispenses victors' justice. It is a prosecutor's court; it is, in some sense, a political court. I am afraid that when the new court is established and various high-profile cases come before it, as they come before the tribunal at The Hague, the ICC will then be under pressure to convict. It will cost hundreds of millions, maybe thousands of millions of dollars of United Nations money. In the absence of such convictions people will ask why that money is being spent and say that the court is ineffective. We must protect the rights of the accused and, above all, set up a court that will not feed on a diet of convictions.

8.23 pm

Ms Oona King (Bethnal Green and Bow)

I believe that it is difficult to exaggerate the Bill's importance. It seeks to outlaw crimes against humanity, not just at one time or place, as some of the international tribunals have sought to do, but at any time or place. In other words, it seeks to ensure that no one is above the law, no matter where they live or who they are.

The International Criminal Court will be a permanent court based at The Hague, with responsibility for trying individuals for genocide, crimes against humanity and war crimes. It will come into effect when 60 states ratify the 1998 Rome statute. To date, 139 states have signed the statute and 29 have ratified it. I will be delighted if the United Kingdom is one of the first 60 to ratify it, as I am sure it will be, following the passage of the Bill.

The Government have played a pivotal role in the creation of the ICC. Notwithstanding the remarks of my friend the hon. Member for Tatton (Mr. Bell), I believe that the ICC will, for the first time, provide the means by which justice may be brought to victims and murderers may be brought to justice. We have not had those means before with an enforceable mechanism.

The ICC will deter potential war criminals and, I hope, contribute towards an end to the culture of impunity. It will also, for the first time, bring conflict within nation states into the jurisdiction of an international court. It will recognise crimes of sexual violence, which had gone unrecognised until very recently, and will go further towards prohibiting the use of child soldiers.

It is important to place the ICC within an historical context. In the last speech that I gave on the ICC in this Chamber, I noted that the first real codification of war crimes was the 1884 Geneva convention. The House of Commons research paper, as ever, is extremely far-reaching in its gathering of evidence. It cites a war crimes tribunal in Greece in 405 BC that held individuals to account. More recently—in 1474—a panel of 28 judges of the Holy Roman Empire stripped one Peter von Hagenbach of his knighthood and sentenced him to death for his role in ordering the murder, rape and mutilation of citizens of the Upper Rhine. These war crimes were committed by men under his command, and his defence, back in 1474—that he was following orders from his superior, the Duke of Burgundy—was rejected.

Despite the passage of 500 years, we remain at a fairly rudimentary stage of institution-building. That is what the ICC seeks to do. In fact, had Peter von Hagenbach committed his war crimes in the 1970s instead of the 1470s, he would probably have got away with murder, just as Pol Pot did. That is why I trust that all Members of the House support the principles behind the Bill. I certainly do, particularly in the light of my visits to Rwanda and Cambodia. Those countries vividly illustrate how genocide and conflict today take place within countries as much as between countries. The corollary is that most victims of war crimes today are civilians, not military personnel. As we have heard, in the last 50 years, more than 86 million civilians have died in more than 250 conflicts.

Many people might be surprised that we have a plethora of laws prohibiting war crimes. I described them in some detail previously in the Chamber, so I will not list them again; suffice it to say that it is not the laws we lack, but the means to enforce them. The 1948 genocide convention took 50 years to muster its first success. If a week is a long time in politics, it is a lifetime in warfare. One need look no further than the meticulous plans that were laid relating to the genocide in Rwanda, which sought to achieve a murder rate of 1,000 civilians per 20 minutes, to see that we have not a minute to lose. There must be an urgency brought to the Bill and I am delighted that the Government have found time for it, given the pressure of the legislative timetable.

I was pleased to hear the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) say that this is one of the most important Bills he has had the honour to debate in this House in the 35 years he has been a Member. I concur with his judgment and believe that the Bill is so important that we must get it absolutely right.

I wish to turn to some of the problems inherent in the Bill. The first is universal jurisdiction. The greatest concerns are about clauses 51 and 23, which allow Executive discretion. The Bill, as amended in the Lords, limits British jurisdiction to ICC crimes committed on British territory or committed abroad by UK nationals, or to those who are deemed, under the Bill, to be resident in the UK.

The use of the term "resident" means that non-nationals accused of genocide, crimes against humanity and war crimes will still be able to visit friends, seek medical advice or go shopping in the UK without fear of prosecution, because they would not be resident here. Other countries have sought to avoid this loophole; Belgium, Canada, Germany, New Zealand and South Africa have all decided on forms of universal jurisdiction to hold those accused under the statute to account. I would hope that we might be able to look at this in Committee and reduce the legal confusion by adopting the concept of "presence" instead of residence, as Canada has done. The definition of residence will add confusion and could undermine the intent of the Bill.

I should like to cite an example. In the Democratic Republic of the Congo—a country in which I take a great deal of interest—over 1 million people have died since 1998 in a war that has sucked in the armies of more than six neighbouring countries and left the population prey to a number of crimes against humanity. Many of those crimes have been perpetrated by foreign mercenaries. The ICC might have no jurisdiction over the offender because, for example, neither the Congo nor the perpetrator's state of nationality had accepted ICC jurisdiction, or because the Congo had not accepted jurisdiction and the nationality of the offender could not be established. If that offender came to the UK, why should he or she not be at risk of prosecution?

The case for universal jurisdiction is particularly striking when a British national falls victim to a crime against humanity committed abroad by a foreign national. On 28 December last year, Charlotte Wilson—a Voluntary Services Overseas teacher—was ambushed and murdered by a Burundian Hutu rebel group. The culprit of that crime, conceivably, could flee to the United Kingdom. I say that because, in my constituency, I have come across people who are alleged to have been war criminals in Rwanda and Bangladesh but have not faced prosecution. They could find a safe haven and be able to escape justice, even when their victims include a British citizen.

I urge the Minister to reconsider accepting the principle of universal jurisdiction. We have already done that in the case of torture and when a person commits grave breaches of the Geneva conventions. I hope that the Bill will treat equally all those who are present on UK territory, whether nationals or non-nationals, visitors or residents.

I am also concerned about the large degree of Executive discretion in the Bill. There are a number of clauses that provide a Cabinet member with the discretion to take or not to take a certain course of action. I have concerns that this could result in a failure to fulfil the obligations under the Rome statue.

I want to underline what the hon. Member for Tatton said about the quality of justice. We must ensure that justice is done on both sides and try to avoid the historical pattern: justice for the victors and an absolute lack of justice for the vanquished.

Conservative Members have asked the Foreign Secretary to legislate so that British armed forces can never, in theory or practice, be brought before the ICC. That is a worrying position to take, because it implies that we want a criminal court only if somebody promises us that we will never be brought before it. In theory, British service people will never be brought before it, because any bona fide allegation will be investigated by British authorities. That does not mean that they will not be held accountable for their actions. Surely they would not want that. There is already accountability, and a code that can be invoked if they break it.

It is also unlikely in practice that members of the British armed forces could be brought before the court.

Mr. Gerald Howarth

The hon. Lady cannot make that assertion. She can say that any of our forces brought before our domestic courts will certainly get a fair trial, and that our judges, sharing the same culture, will understand the circumstances, but she cannot guarantee that the ICC will not seek to second-guess the decisions of the United Kingdom courts and take a wholly different view.

Ms King

This is exactly the point: if we are able to show that we have had a thorough investigation, the ICC has no jurisdiction over our armed forces. Does not the hon. Gentleman understand the concept of complementarity around which the proposal is based?

Mr. Blunt

The hon. Lady should consult article 20, paragraph 3(b) of which refers to trials in the United Kingdom that otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. It is the ICC that will have to interpret that article.

Ms King

The hon. Gentleman has to recognise that the Government, and the previous Conservative Government, in signing the conventions, have accepted the jurisdiction of people who may not be British. We should uphold the rule of law and recognise the many built-in mechanisms that would prevent British service people from being brought before the ICC—for example, the role of the Security Council—unless we committed genocide by accident, say—and if we did, frankly, we should indeed be subject to the court. How can we command any respect if we argue, as Conservative Members appear to be arguing, that we want the law to apply, but not to us?

Mr. Bercow

The hon. Lady, whose sincerity and conviction I respect, is clearly content to accept the soothing bromides of the Foreign Secretary, but I for one, as someone who is sympathetic to the establishment of the ICC, am not. I invite her to envisage a scenario in which the Government of the day contend that they have conducted a genuine and thoroughgoing investigation into allegations of abuses committed by our armed forces, but the main Opposition party of the day contends that the investigation was defective, whereupon the ICC invokes that fact in support of its decision to bring proceedings.

Ms King

That would be a court case. I do not follow the logic of the hon. Gentleman's argument. I cannot envisage circumstances in which, for example, the British Government conducted their own investigation, the ICC felt that we were not able to prove that the investigation was sufficiently thorough or unbiased and, on top of all that, the Security Council had no wish to impede the case's progress to the ICC. We must not expect that our armed forces will be protected no matter what; they will be protected because their behaviour, on the whole, reaches the highest standards in the world. On the whole, our armed forces do not go around perpetrating crimes against humanity. However, if they do, I hope that they will not be free from the jurisdiction of the ICC.

In conclusion, I underline the importance of the Bill in establishing a permanent and—I hope—universal jurisdiction for punishing the perpetrators of the world's most heinous crimes. Considering the blood-splattered history of the previous century, surely this is the building block we need. It will take us forward and prevent the recurrence of what has happened in the past. It will make the slogan "never again" a reality.

8.41 pm

Dr. Julian LewisEast) (New Forest,

It is a great pleasure to follow the hon. Member for Bethnal Green and Bow (Ms King). I well remember the excellent Adjournment debate that she introduced in October 1999, when I had the pleasure of participating and endorsing most of what she said. Contrary to what some people might think, there is much consensus on the issue across the Floor.

The war crimes aspect causes most concern, where it shades into the conduct of military activity in future conflicts and the way in which military personnel might be held to account. However, I want to leave that point until the end of my remarks and concentrate on the aspects of genocide and crimes against humanity, for which there are at least six good reasons why one needs an International Criminal Court—if satisfactory procedures for operating it can be agreed. The first reason is to punish past killers; the second is to deter future killers; the third is to embarrass those who shelter killers; the fourth is to force countries to put the killers in their midst on trial; the fifth is to prove beyond doubt that the killings actually took place; and the sixth is to bring out aspects of the truth that might otherwise remain hidden.

I shall deal briefly with those reasons in turn—beginning with punishment. I make no bones about the fact that I believe in the virtue of retribution for its own sake. That is an unfashionable statement, but if the concept of punishment or retribution means anything at all in the 21st century, it should certainly apply to the crimes we are talking about—genocide and crimes against humanity. Those are crimes whereby whole swathes of people are eliminated on a group basis. People who have done nothing whatever to incur the hatred, disdain or dislike of the people who attack them are nevertheless liquidated without semblance of pity or mercy. Even if it would not deter one future criminal from the acts committed by mass murderers in the past, every mass murderer whom it is in our power to punish should be punished because it is a matter of natural justice; the blood of the victims cries out for punishment to be carried out.

I shall briefly refer to three examples. I hope that the House will forgive me if I go back to the period about which I know most—the second world war. The first example is Josef Mengele, the angel of death of Auschwitz, who, we now know, died in Brazil. We also know that he was so confident of not being punished that for many years he lived openly under his own name and his family in Germany were in communication with him. That tells us that if the authorities in Germany had had a real will to track down Mengele and bring him to justice, they could easily have done so. It is not for me to speculate why they did not.

The second example is Walter Rauff, the man who invented mobile gas vans. They sometimes had a red cross on the side, but Jews were herded into them and exhaust gases were automatically funnelled into the back so that as the van drove off they were asphyxiated in the most excruciating manner. There are fascinating documents in the archives about the care and attention with which German firms that are still trading today designed those devilish contraptions—to make sure that the "waste materials" and other substances derived from the "process" would not impede the operation of the van. Walter Rauff also lived openly in south America for many years, even being interviewed by magazines, but he was never brought to justice. I like to think that, for all the reasons that I enumerated, an International Criminal Court would have made it much more difficult for him to escape the fate that he richly deserved.

The third case is one that I mentioned briefly in an intervention on the Foreign Secretary—that of Aloïs Brunner, Adolf Eichmann's right-hand man, who was personally responsible for organising the death of more than 40,000 Austrian civilians, more than 40,000 Greek civilians, more than 20,000 French civilians and many Slovaks. He was known, at least by the 1980s, to be living in Syria under the name of Georg Fischer, as an honoured guest of, and an adviser to, the Syrian Government. I have raised the matter in the House on at least half a dozen occasions, in July 1998, July and October 1999 and in March and June 2000.

On 20 June 2000 I thought that I was making progress. I asked the then Minister of State at the Foreign and Commonwealth Office, the hon. Member for Neath (Mr. Hain), whether one contribution towards the building of trust between Syria and Israel would be for the new Syrian regime to clear up the mystery of its long-term sheltering in Damascus of the architect of the holocaust in wartime France and elsewhere, Aloïs Brunner. I asked whether the Government would make representations to the Syrian regime indicating that it could not expect to be taken seriously in the search for peace as long as a war criminal of that magnitude was sheltered.

The Minister replied that he would look into the matter and write to me. Eventually, he wrote to me in August of that year, and I was much encouraged by what he wrote because there had been a change of regime in Syria. He said that, with the passing of President Hafez al-Assad, more information "might become available" about Brunner. He said also that it might he possible for the Government to make representations once the new leadership in Syria had "settled in".

It was with some confidence, therefore, that I asked another question on 27 February this year. I asked what representations had been made to the Syrian regime about the sheltering of that dreadful man, only to be told by the present Minister of State, the hon. Member for Leicester, East (Mr. Vaz): We have not made representations to the Syrian Government about Aloïs Brunner. There is general agreement that he is almost certainly dead. Inquiries in recent years by the French and German Governments and by journalists have failed to produce evidence of his whereabouts."—[Official Report, 27 February 2001; Vol. 364, c. 584W.] We heard the Foreign Secretary say this afternoon that if I had fresh evidence, he might consider making representations.

My question in February was timely because, at the beginning of March, a French court thought enough of the possibility that Brunner was still alive and being sheltered in Syria to sentence him, in absentia, to life imprisonment. If the French Government can organise a trial to sentence a missing murderer to life imprisonment, I am disappointed—to put it mildly—that our own Foreign Office seems to have set its face against doing anything, even at the modest level of making representations to the new Syrian Government, especially when the former Minister of State suggested that he was minded to do so.

Perhaps the background is that some professional diplomats in the Foreign Office think that it is not such a good idea to stir up feelings that might upset our relationship with the new Syrian Government, by pursuing that terrible criminal. Even if he is dead—he would only be 88, and plenty of people of that age are still going strong today, including my father—it is important that the record is set straight if Syria, under its new regime, is to be taken seriously in the comity of international society.

Mr. Winnick

The hon. Gentleman is right about Brunner, and we know Brunner's record. However, is he aware that I initiated a debate in the late 1980s about a notorious Nazi war criminal, who was responsible for murder by exhaust fumes before the gas chambers existed? That mass murderer was living in Chile under his own name. In replying to that debate on behalf of the then Government, Malcolm Rifkind made it clear that, although he was obviously concerned, he would make no representations. So the hon. Gentleman is saying nothing unique; I am afraid that successive British Governments have taken that line.

Dr. Lewis

I thank the hon. Gentleman sincerely for making that point. I hope that he acknowledges that in no sense am I trying to be party political. I strongly suggest that, in both those cases, the Government of the day received official diplomatic advice on what was, or was not, a wise course to follow. The hon. Gentleman may have been out of the Chamber when I referred to Walter Rauff, whom I assume is the criminal that he mentions, and I entirely endorse the sentiments that he expresses.

People such as Rauff, Mengele and Brunner deserve punishment in their own right; it is fit and meet that they should be punished, but there are many more positive reasons to support the principle of the International Criminal Court. For example, it will deter people in future now that Milosevic has been taken into custody, although not yet for trial in that court, it is true. Nevertheless, the principle is illustrated that a head of state who wants to wage aggressive and barbaric campaigns against civilians can no longer shelter behind the idea that, whoever else carries the can for the orders that he gives, he will be immune.

The ICC will embarrass countries into taking action that they otherwise would not take. That point has been sufficiently illustrated already. For example, would the Latin American countries have harboured so many terrible Nazi criminals for so long if a court had been available to put pressure on them to give up those criminals? Would so many Nazis have been aided by countries and organisations, and even some parts of the Catholic Church, to escape the retribution that they so richly deserved?

Would members of the SS Galicien division have been allowed into Britain, or having been allowed to enter—perhaps relatively innocently, although I find that hard to credit—would they have been allowed to settle here when questions were being asked about the wartime conduct of so many of the division's members? As a Labour Member said previously, would Idi Amin have found it so easy to continue to have sanctuary in Saudi Arabia?

The fourth reason that I mentioned was to force other countries to try criminals in their midst. Once again, the recent arrest of Milosevic shows the benefit of that.

I should like to spend a moment on the fifth reason, which is to prove that killings actually took place. We know only too well the evil of historical revisionism and of the activities of the Holocaust review organisations and of propagandists such as David Irving, Ernst Zündel in Canada and Fred Leuchter in America—who purported to produce a "scientific" report that the gas chambers had not really been gas chambers at all.

I was deeply impressed by the foresight of the late Lord Bernstein and the late Alfred Hitchcock. When the death camps were opened at the end of world war two, they anticipated that the horror was on such a scale that future generations might fail to believe that it had ever occurred, so they produced the unforgettable film "A Painful Reminder". They visited the camps before the bodies were all buried and they took, with the widest-angled shots possible, a comprehensive cinematographic record of what was found, so that it would become as difficult as possible to deny that the atrocities had taken place.

The final reason is to bring out aspects of the truth other than the fact that killings had taken place. I was reminded of that by an article in The Times today under the heading "I funded Bosnian war, says Milosevic". It reports that Milosevic had conceded for the first time that he had covertly funded the Bosnian and Croatian Serb armies. When he was asked to account for all the money that had disappeared, he said that the details should be kept a state secret, since the money went to finance Serb rebellions against the secession from Yugoslavia of Croatia and Bosnia, as well as to Serbian security troops and 'anti-terrorist forces'. The funds, not included in official budget figures, were designed to circumvent the international embargo against Yugoslavia, he added. When we consider the period when our Foreign Office believed that Milosevic was acting as a brake on the activities of Karadzic, how extraordinarily useful it is to learn that those of us who suspected all along that Milosevic was fomenting and supporting such activities were correct.

Even before I deal with the issue of war crimes, there are some other problems with the concept of the court. Those problems have been alluded to and I shall run through them in short order. The first is the concept of "victor's justice". That term has been applied to the Nuremberg tribunals, but no one would deny that the 20 volumes of detailed evidence of Nazi crimes that was gathered at Nuremberg are anything other than an historical source of the first significance. The record of the Nuremberg tribunals makes it extremely difficult to deny the nature of the Nazi regime—and, after a gap of 50 or more years, there would be no shortage of people who would try to do that if they thought that the evidence was not against them.

There is also the argument about the "clean hands" of those sitting on the tribunals. It is true, for example, that Stalin had a judge sitting at Nuremberg. However, the fact that we cannot bring everyone to justice does not mean that we should not bring to justice those people who are capable of being put on trial.

Perhaps a more serious objection relates to the issue of enforcement. Some criminals are too strong to be brought to trial. However, the idea is at least put in the back of their minds that, if one day in future they lose power, they may then be pursued and be held accountable for their actions. The court is still worth while from that point of view.

Problems of access, such as to the atrocities in Afghanistan and Chechnya, have been touched upon, but who would have thought that the time would ever come when dictators such as Todor Zhivkov in Bulgaria or Erich Honecker in East Germany had to face the consequences of their disgraceful activities? That time did come and the court will make it more probable that it will come for other people.

There is little disagreement about the court in respect of the issues of civilian atrocities, genocide and crimes against humanity. The real concern applies to whether normal military action or honest mistakes made during normal military action could end up being defined as war crimes. I sympathise with the doubts expressed by my hon. Friends on the Back Benches. We only have to consider the way in which some recent legislation abuses the concept of human rights to realise that people fear that the definition of a war crime could be stretched too far and thus undermine the principles that the court is being established to support.

Mr. Hawkins

My hon. Friend touches on an important matter. Does he agree that members of all political parties in this House and in the other place often express amazement at the frequency with which the decisions of successive British Governments are challenged in the European Court of Human Rights? Does he also agree that, despite the best intentions, there is a great danger that something that we would regard as legitimate might be ascribed by a rogue state, which is nevertheless a nominal signatory to the new statute, as a war crime and could result in lawful actions by our armed forces being brought before the new court?

Dr. Lewis

That is precisely my point, although my hon. Friend puts it more succinctly. I hope that Labour Members can tell from the sincerity of my positive approach to the Bill that my reservation is also sincere. My hon. Friend articulates my concern well.

It is often said that the road to hell is paved with good intentions. There is also a danger that the devil makes work for idle hands. The argument is finely balanced. There are advantages to a standing court: for example, it helps to avoid disputes over whether trials are held retrospectively, which is one of the criticisms of Nuremberg. The disadvantage is that people might be tempted to run to a standing court with complaints that would not be entertained if it meant establishing an ad hoc court to consider a specific problem. I am inclined to think that the balance is in favour of a standing court.

On military action and warfare, there is a long and sad history of attempts to outlaw aspects of war by international law. The Washington naval treaty and the Geneva gas protocol of the 1920s were subsequently flouted. It was deterrence that prevented gas from being used by the combatants in the second world war. The experiences of the Jewish people who fell under Nazi control—including my relatives and those of the hon. Member for Bethnal Green and Bow (Ms King)—prove that it was used against the helpless. Similarly, in 1939, at the outset of the second world war, our bombers were instructed not to bomb land targets for fear of collateral civilian casualties. They bombed ships only at sea. In a real war, such restrictions soon go out of the window. My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) has ably made the point that the principle of nuclear deterrence could be challenged.

I have a final question, to which I would appreciate a response. What happens if the United Kingdom tries and acquits a member of our armed forces who has been accused of a war crime? Is that the end of the matter, or can the ICC decide that it is not satisfied with the verdict and that it will intervene?

My hon. Friend the Member for Reigate (Mr. Blunt) drew my attention to article 17 of the Rome statute, which states: the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; or

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute". I do not need to point out that the insertion of the word "genuinely" into both paragraphs begs many questions.

Conservative Members do not want killers to escape justice, or people who commit crimes against humanity to laugh in the face of world opinion, as they have done in the past. However, in our pursuit of thoroughly admirable aims, we do not wish innocent service men to be brought before an international court simply because the processes in our democratic society, whereby they have been found not guilty, are deemed insufficient by that court.

9.6 pm

Mr. Jeremy Corbyn (Islington, North)

I shall be brief because some hon. Members spoke at length and thus prevented others from taking part in the debate.

Although I welcome the principle of the International Criminal Court, as I welcome many other conventions and processes that were introduced in the past century, we must be objective about the practical effect. For example, the League of Nations was promoted by a courageous American President, Woodrow Wilson, and eventually rejected by the United States Congress and Senate. It collapsed partly through non-adherence and partly because of non-US participation.

In giving the Bill a Second Reading, we should convey the strong message that we support the principle of the International Criminal Court absolutely, and that we ask for no exemptions or opt-outs. The US position appears to be a willingness to sign the basic protocol in order to participate in the negotiations, and a determination to ensure that it has no jurisdiction over any US citizen. That is unacceptable.

Conservative Members have gone on at length about the potential for a case against members of the British armed forces. Obviously, we hope that circumstances would not arise whereby such a case could be made. However, signing up to an international court process means acceptance of its jurisdiction over oneself as well as everybody else. Embarrassing and difficult though that might be, it is what international treaties are all about.

My hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington) asked why the process could not be applied retrospectively. That is a serious gap in the measure. The only international legal processes that have had any effect in recent years are the Nuremberg tribunals after the second world war, the tribunals on Rwanda and the former Yugoslavia, and the more limited tribunal on genocide in Cambodia. Many other cases deserve such international tribunals. I do not understand why at least selective retrospection cannot be applied to specific areas of conflict. For example, someone has to be responsible for the horrors in Afghanistan, where hundreds of thousands of people have died in the past 25 years. The methods that are used to deal with the conflict in Chechnya should also be the subject of a tribunal. Other examples include the conflicts in Congo and in Latin American countries.

The process has been hastened by the actions of Spanish Judge Garzon in his successful attempt to have Pinochet arrested in London. It is unfortunate that Pinochet was not extradited to Spain, but returned to Chile on the Home Secretary's decision, which was based on medical advice. That advice was curiously overturned by a military hospital in Chile, which decided that he was fit to face trial.

Unfortunately, the process in Chile is far from over. Pinochet has been trying exactly the same tactics of evasion, delay and endless supposedly medical arguments, and he now seeks the diminution of charges against him. I am sure that the Members who were so keen not to extradite him to Spain on the ground that he should face prosecution in Chile will be concerned that he may still be evading prosecution in Chile in the future.

I visited Chile in December; my visit is recorded in the Register of Members' Interests. I witnessed the hope and the fear of Pinochet's victims, and their concern that he should face some kind of process. People told me then that they wished that there had been an international process not only against the military dictatorship in Chile between 1973 and 1990, but against all the dictators in the southern cone—Argentina, Uruguay and Chile—for their persecution of so many people in that part of Latin America.

If ever there was a case for a special process, it has to be the investigation of Operation Condor, and all the horrors that went with it. However, I suspect that there will be no such international process, because it would be too embarrassing to too many people. The causes of injustice, as well as the symptoms—such as the military power that leads to the injustice later—have to be addressed. Those causes have to be the imbalance between rich and poor, the unaccountable power of the military, the interference of multinational companies in other countries, and the corruption of the political process. Any process relating to the examination of Operation Condor, for example, would obviously seek to indict generals in all those countries of Latin America, but it would also seek to examine the role of multinational corporations, of the Central Intelligence Agency, and of Henry Kissinger, whom I saw wandering around the House only two weeks ago. He would be in a good position to tell us about the covert operations of the United States at that time.

Much has been said about state parties, and the need for a prosecution system against them. When the Minister replies, will he tell us whether he has any expectation that the ICC process will give any hope to the people of Colombia, for example? The number who have already died in the various conflicts there far exceeds the death toll of any other conflict in Central or South America in recent times. The death rate in Colombia is still accelerating, as a combination of militias, armed forces, drugs barons and unauthorised gangs engage in civil war. The losers, as ever, are the poorest people in the poorest part of that country. We should look more carefully at the reasons for conflict in the first place: the grab for land, minerals or power, which so often leads to injustice and the reigns of terror that result in the death of so many people.

There are two specific areas of the Bill that I would like the Minister to deal with when he replies to the debate. The first concerns clause 23(4), which says: The Secretary of State may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings (or further proceedings) under this Part shall not be taken against a person covered by subsection (1) or (2).

I cannot understand why subsection (4) is in the Bill, and I hope that it can be removed in Committee or on Report. It seems suspiciously like an attempt to limit the jurisdiction of the ICC over this country. If we deplore other countries seeking opt-outs from particular parts of the provisions, we should not be seeking opt-outs ourselves. The whole point of having an International Criminal Court process is that one accepts the principle in its entirety.

The second area of concern, which my hon. Friend the Member for Bethnal Green and Bow (Ms King) mentioned, is the definition of ordinary residence in the United Kingdom. I intervened on the Foreign Secretary earlier to ask about this, and he thought that there was not a problem. I invite him to look again at that part of the Bill. I have read some legal opinions on the matter, and it seems to me that there is the most enormous problem with that issue, which really should be addressed. Instead of applying the difficult criterion of residence or non-residence—anyone who has dealt with immigration law will be aware of the niceties of the terms "residence" and "non-residence"—we should apply the criterion that anyone present in this country at any one time who is indicted by the ICC should be subject to its jurisdiction within this country.

The process that brought about the development of the International Criminal Court is based on the horror at the genocide that has taken place in so many parts of the world and at the millions of people who have died in conflicts. Although we obviously want an International Criminal Court process that can bring to justice the perpetrators of such crimes, we also want to ensure that it is not a political victors' court. I pay tribute to the hon. Member for Tatton (Mr. Bell) for making that point. It must be a court that will genuinely try people without being subject to huge campaigns of outside pressure to gain convictions at all costs. It must be seen to be an objective and trustworthy place in which decisions can be made. I hope that we shall agree to that tonight.

I return to the point with which I started. I urge the House to consider the causes of human rights abuses round the world and the need for sufficient expenditure by member states of the United Nations and its agencies to ensure that the processes of the International Criminal Court are carried out. Last week I attended the United Nations Commission on Human Rights in Geneva on behalf of Liberation, a non-governmental organisation in this country. We heard an excellent speech by Mary Robinson, followed by one by Archbishop Desmond Tutu. Tragically, Mary Robinson is not seeking reappointment as the UN High Commissioner for Human Rights—[HON. MEMBERS: "She is."] She has changed her mind. Excellent! I was not aware of that.

However, Mary Robinson made the point very effectively in her speech that if the UN is serious about human rights, it must give her and her office the resources, the staff and the finances to do the job. It is no good going round the world hand-wringing about human rights abuses if we do not give the international agencies the necessary support and authority to deal with them. I hope that the House will give the Bill a Second Reading tonight, but I believe that there are at least two serious flaws in it that I hope will be corrected in Committee or on Report. I also hope that we do not go down the road followed by US Presidents such as Bill Clinton and George W. Bush and by the Conservative party, who say, "This should apply to everybody but me." That will be impossible if we are to go forward with any kind of process of international justice and international law.

9.18 pm

Mr. Crispin Blunt (Reigate)

This is an extremely important debate, and I echo the remarks of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) in that respect. The hon. Member for Tatton (Mr. Bell) deplored the air of partisanship that had occurred in the debate; I deplore that as well. It was regrettable that the hon. Member for Rotherham (Mr. MacShane) considered it a matter for party political advantage that Conservative Members might oppose the Bill on Third Reading owing to the practicalities and problems inherent in it.

This is an immensely important measure. The wider case for it was made extremely eloquently by my hon. Friend the Member for New Forest, East (Dr. Lewis), and I pay tribute to him for an excellent speech. The hon. Member for Liverpool, Riverside (Mrs. Ellman) made an extremely pertinent point. She said that it was absolutely essential that the court should work. If it fails to work, we run the risk of undermining the stability of international relationships. The consequences would be as serious as that, and that is why this is such an important measure. The Bill has the capacity to undermine the willingness of the states that have policed the world since 1945 to carry on bearing that burden and undertaking that role.

If the Bill works as we would like it to work, it may take us forward to a new order of international relations in which proper justice—the true justice that is blind—is administered to those who have carried out such crimes and is applied fairly and freely across the world. In that sense, the efforts behind the establishment of the criminal court and its incorporation in our criminal justice system are much to be welcomed. However, we must consider the background.

In 1951, the United Kingdom undertook to sign up to the European convention on human rights, but it was never expected that our armed forces would be subject to it in the way that they are now. We are in such a position that I and, I am glad to say, my party have come to the view that such is the effect on our armed forces that it is necessary to seek a derogation from the terms of the convention, just as the French were able to do when they signed up to the treaty much later than us. Although the intentions behind the measure are fine, we must be able to tell our armed forces rather more than how it should be implemented. By and large, they will be the means by which the United Kingdom, as a member of the United Nations Security Council, fulfils the role and responsibility that it has taken on in international relations and in policing agreements put in place by the UN.

We have our own interest in international stability, which will always be important to the United Kingdom. Ours is a nation of 60 million people, so it will remain important whatever happens in future. The effect on this country of such a measure will be out of all proportion to that on other countries, so we must be able to tell our armed forces that we know what we are letting them in for. That is why the concerns of the Chief of the Defence Staff, which have been virtually expressed on the record, have to be taken seriously.

To put the matter in detailed focus for hon. Members, I shall relate the experience of a soldier in my old regiment, the 13th/18th Hussars, who happened to be my driver when I was a squadron commander in the late 1980s. I met him again in Bosnia when I was a special adviser to Sir Malcolm Rifkind when he was Secretary of State for Defence. A few weeks earlier, that soldier had been involved in a firefight in which he had chosen to fire on Croatian Bosnians who were engaging with his troop of armoured cars.

Through such actions, the British forces in Bosnia had achieved a reputation as ones that the bandits did not mess with. That reputation did not adhere to the other forces taking part in the UN operation, because they were not as resolute, not as well-trained and not as prepared at junior non-commissioned officer level to take decisions such as that taken by that soldier. If the Bill is not implemented in the way that we all desire, the consequence will be that our armed forces will lose the will to engage in such operations. The Chief of the Defence Staff has expressed concerns, and how the Bill works is fundamental.

Mr. Browne

I am much obliged to the hon. Gentleman for giving way. So that we can understand the environment in which the events that he is describing took place, can he explain whether that soldier was under the jurisdiction of the tribunal for the former Yugoslavia when he made those decisions? Was he prevented from making the right decisions by being subject to the tribunal's jurisdiction?

Mr. Blunt

Of course, the answer is no. He was subject to that jurisdiction, but I know him and I would not imagine for a moment that he knew either that he was subject to a tribunal or the exact detail of what would happen to him in The Hague if things went wrong. That is another issue, but it leads me to how we teach soldiers the laws of war. That process has to be gone through to bring home to them the consequences of their actions. The more complicated we make that process, and the more detail there is, the more concern we cause the chain of command in relation to people being prepared to take responsibility, and to act in circumstances in which an instant judgment must be made about whether such action is proper.

Mr. Menzies Campbell

Does the hon. Gentleman think his driver was aware that he was subject to the terms of the Geneva convention? If he was, is there any evidence to suggest that British forces in Bosnia or Kosovo have felt in any way inhibited by their responsibility to adhere to the terms of the convention?

Mr. Blunt

I hope that he was. I probably taught him the lessons in the course of military training. However, to an extent the right hon. and learned Gentleman is right: in the terms of the Geneva convention and the laws of war, the actions that he took, according to his judgment, were correct.

That is what will happen if the court works as we want it to work, but I fear that the way in which it is set up may mean that it will not. The state of Israel has declared its concerns about the way in which the treaty had been set up. Part of its declaration states: At the 1998 Rome conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool. Given the terms of the treaty, I must say that I believe Israel may have a point. We should consider the way in which the judges will be elected. In that context, I urge hon. Members to note the detail of what is in the treaty, and what was agreed in the Rome statute.

The 18 judges will be elected on the basis of one state, one vote. I refer to states that are signatories to the statute, have acceded to it and have ratified it. That would put states such as Mali and Trinidad and Tobago on the same footing as others as large as the United States of America—if, that is, the United States were to become involved in the treaty. A state in the position of the state of Israel, having received the treatment that it has received at the hands of the General Assembly of the United Nations, can be expected to have concerns about the sort of people who will be elected, by secret ballot, as judges to decide these matters.

Once the judges are in place in a permanent institution, that institution—as other hon. Members have said—will be under pressure to act, and to produce work to do. We have seen, both in the institutions of the European Union and in those of the European convention on human rights, judge-made law and the pushing back of its boundaries. Given the nature of the judges who might be elected to serve on the ICC, exactly the same might happen.

Mr. Browne

I am interested by the hon. Gentleman's use of the phrase, "produce work to do". He will know that in the last 50 years of the last century, 860 million people died in conflicts throughout the world. Like other hon. Members, I suspect that, far from the tribunal looking for work to do, work will be queueing up to be done. The notion that the tribunal will go around the world for political reasons looking for work to do is fanciful, is it not?

Mr. Blunt

I hope so, but what if the institution does not work in the way that we intend? What way of protecting the interests of the armed forces is open to us? I am afraid that the House must take account of such considerations. It must consider whether the 170 or 180 states belonging to the United Nations that could accede to the statute could produce an agenda that was against the interests of the permanent members of the Security Council—against, perhaps, the interests of the United States and the United Kingdom—such as the agenda that currently operates in the skies over Iraq.

I should have thought that a large majority in the United Nations would say that the actions of our pilots in bombing Baghdad amount prima facie to a war crime. If the Prime Minister, the Foreign Secretary or the Secretary of State for Defence were not going to be put on trial in the UK, the International Criminal Court, if it had a majority of judges so willed, would seek leave to put a case. That is my concern. Potentially, the way in which the institution is set up will not act in the interests of global stability.

Labour Members have properly advanced the argument that it is right to have an international system of justice and that it is not right for the United Kingdom to say that we should have an opt-out. The hon. Member for Clydebank and Milngavie (Mr. Worthington) made those points clearly. To an extent, he is right. We will subject ourselves, if the Bill becomes law, to the jurisdiction of the ICC. That is why it is so important, when we act to limit the sovereignty of our action and the ability to conduct our affairs as we would want, that we are confident that the institutions that we are setting up will meet our needs. In the end, our needs are met through nations such as the United States, Great Britain, France, Germany—the great democracies of the world now—having the ability, to an extent, to influence and to police world affairs, as they have in the past.

The United Kingdom and the United States have a proud record of protecting the interests of liberty and freedom in the decades since 1945. The issue is that, in the new world order to be policed by the ICC under the mechanisms set up in the Rome statute, there is a threat to our willingness to go on making the contribution in security terms. The threat has been made explicit in the United States, and I believe that the Senate will never ratify the statute. To an extent, that will undermine its whole effectiveness. The fact that we cannot get the United States to agree to the statute punches a huge hole through it. Of course, it was always going to be enormously difficult, with the traditions and history of the United States, to get the United States Senate to agree to the statute, but I do not believe that the set-up for the election of the judges, who in the end will make the decision, was ever going to be acceptable to the United States.

Within the statute, greater account should have been given to the size and importance of countries. After all, that is why the United Nations Security Council was set up with five permanent members in 1945—it recognised the realities of the security issues of the day. I do not believe, on the amount of attention that I have been able to give to the statute and to the proceedings before us, that we can be satisfied that it does that. I regret that, so far, I have not been able to give the matter the attention that it deserves. I hope to have the opportunity to do so in Committee.

9.35 pm

Mrs. Cheryl Gillan (Chesham and Amersham)

In December 1948, the United Nations Assembly first discussed the idea of an international criminal court. There is no doubt that tonight's debate is another small step on the road to achieving that aim—a road that has already taken well over 50 years. If it takes us a few weeks longer, it is understandable.

There has been so much interest in the debate that not all hon. Members have been able to speak in it. However, Opposition and Government Front Benchers took many interventions, as did other speakers. I know that my hon. Friend the Member for Aldershot (Mr. Howarth) and the hon. Members for Kilmarnock and Loudoun (Mr. Browne) and for Ilford, South (Mr. Gapes)—to name just three hon. Members—are disappointed that they have not been able to speak, and we are sorry that we have not been able to hear their speeches.

There is no doubt that there is great interest in the Bill's safe passage, if that is the will of the House. I shall speak only briefly—which will please the hon. Member for Clydebank and Milngavie (Mr. Worthington), who so kindly criticised the way in which I handled another Bill in Committee—because I want to give the Minister an opportunity to answer the many questions that have been asked. We shall be able to raise other issues in Committee.

When the Foreign Secretary opened the debate, hon. Members—perhaps inevitably, in the context of this Bill—thought of the Balkans, particularly now that Milosevic has been arrested and there are discussions on the point at which he should be sent to The Hague to face trial for the hideous crimes against humanity for which he is widely believed to be responsible. We want Milosevic to be arraigned at The Hague before too much time has passed, but we must, as I hope the Foreign Secretary will agree, respect the decisions of those who have to live most immediately with the consequences, and of course we wish them well.

The Foreign Secretary also quite rightly pointed out the greater and wider interest in the Bill among non-governmental organisations, including Amnesty International. I am sorry that the right hon. Gentleman was slightly waspish in his view of the Opposition's attitude and support for the Bill. At the same time, however. I join him in paying tribute to the legal team, under the leadership of Sir Franklin Berman, who negotiated on behalf of the United Kingdom. The Foreign Secretary said that our concerns were misplaced. He will therefore undoubtedly ensure that all our concerns are dealt with fully in Committee.

In reply to the Foreign Secretary, my right hon. Friend the Member for Horsham (Mr. Maude) quite rightly reiterated the Opposition's broad support for the principle of the Bill and offered constructive support in working with the Government. He also raised the issues that are on everyone's lips and on which assurances and clarification are sought. Those issues were certainly raised in the speeches that we have heard today.

The hon. Member for Clydebank and Milngavie must agree with us on some of those issues, as he said that this is not a perfect Bill and that it will be an imperfect court. He also made the point that if we do not embrace the Bill, we will never have an international criminal court, but I take issue with him on that. Although he seemed to believe that any criticism of the Bill must be wrong, he asked various questions about it. He asked, for example, for further explanation of the powers of retrospection. I look forward to the amendments that he said he may table.

The hon. Member for Clydebank and Milngavie also expressed reservations about the United States' position—a theme that was taken up by other Members. Although he said that signing up to the statute was the only good thing that Clinton had done, he also said that the reservations that Clinton added to his signature were very disturbing.

Sadly, the hon. Member for Cynon Valley (Ann Clwyd)—who has left the Chamber—was unable to speak in the debate, although she intervened to point out that the United States had an ambassador for war crimes. I hope that she will be able to serve on the Committee because I think that she could make a contribution to the Bill's passage.

The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) gave his usual support to the Government and then turned to attack Conservative Members—no surprises there. However, he raised the important issue of the scrutiny of treaties in this place and the Ponsonby rules I hope that he will have the opportunity to raise that issue in Committee if he is fortunate enough to be a member. He also said that, in his 45 years in the House—[HON. MEMBERS: "It is 35".] My goodness, a week is a long time in politics! He said that this is the most important legislation that the House has considered in the 35 years in which he has been an hon. Member.

I should like to pay a small tribute to the right hon. Gentleman. This evening's speech may have been his last contribution to this House on a substantial piece of business—although he may have other opportunities, as the Government have another year to run. He has always brought a serious and courteous tone to debates, which I, for one, have appreciated. When he finally leaves this place, he will be much missed on all sides.

I offer my apologies to the hon. Member for Thurrock (Mr. Mackinlay) as I was not in the Chamber for the totality of his contribution. However, I heard a small part of it, and I share his frustration that it took so long to get the Bill to Second Reading. He displayed his great knowledge of the Canadian legislation and its passage through that country's House. He felt that the Bill was a profoundly important piece of legislation. He has sustained a great interest in these matters over a long time, and he will make a valuable contribution to our deliberations on the Bill.

My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) speaks from great experience. He drew on the example of the Belgrano to explore what might have happened to our Prime Minister of the time and to members of the armed services if the Bill, as drafted, had obtained at that time. He raised issues about nuclear weapons that need to be discussed, and asked the important question about who judges. He also touched on the role of the prosecutor. My right hon. and learned Friend reflected the feelings of all Conservative Members when he said that he did not want to pour cold water on the noble aims of the Bill, but he noted that detailed examination was necessary when such complex and serious legislation is involved.

The hon. Member for Liverpool, Riverside (Mrs. Ellman) confirmed that 139 countries had signed up to the statute, but that only 29 have ratified it so far. She echoed the aim expressed by many hon. Members that Britain should be among the first 60 countries to ratify the ICC. She quoted Kofi Annan—quite rightly so—but in so doing stole my thunder, and I shall not repeat the observation in question. The attention that she gave to national Holocaust day will be appreciated in the Chamber, and by a wider audience as well.

The hon. Member for Tatton (Mr. Bell) raised some uniquely important matters that must be discussed in Committee. He talked about the unique problems that may face the accused, and about those people's rights—an element that has been sadly lacking in debates to date on the ICC. He raised the spectre of the political court and of the pressures for a conviction in high-profile cases. He also spoke about the quality of justice—or, indeed, of mercy—and I feel sure that it would be valuable to explore more issues along those lines.

The hon. Member for Bethnal Green and Bow (Ms King) has made speeches on this subject before. Indeed, I was in the Chamber when she secured her Adjournment debate on 27 October 1999. She wants to pay particular attention to the concept of residence introduced by a Minister in another place, which she believes is causing confusion. She also used powerful examples from Rwanda, on which she is a great and acknowledged expert. She challenged our attempts to protect the armed forces, and I look forward to pursuing those arguments in Committee.

My hon. Friend the Member for New Forest, East (Dr. Lewis) made his usual cogent and well-argued contribution. His was a powerful speech, which relied on his great and extensive knowledge of the second world war. He wanted to know what would happen if the UK tried a member of the armed services in the UK, and he inquired about the consequences of the results of such a trial.

The hon. Member for Islington, North (Mr. Corbyn) went on about Colombia, and again raised the issue of the definition of the phrase "ordinarily resident" as applied to the UK. He admitted that the Bill contains serious flaws that must be corrected in Committee.

Finally, my hon. Friend the Member for Reigate (Mr. Blunt) gave the House the benefit of knowledge gathered during a distinguished Army career. He spoke about the consequences of the Bill for the armed forces.

Finally, I would like to restate the points that were made in good faith by my right hon. Friend the Member for Horsham, on examination of the Bill. So far, we believe that there should be four amendments—the seven-year opt-out provided for under article 124; the discretion for the Secretary of State over the issuing of warrants from the ICC through an interpretive declaration; the revision of the legal test under clause 65 for what a military commander ought to have known; and an amendment to ensure that if the Bill becomes law and ratification takes place, the declarations from the Government must be laid before both Houses of Parliament.

Despite some of the more immature asides from Labour Members, I believe that we have made progress tonight. In anticipation of a responsive dialogue with the Government on our attempts to protect our armed forces and to show that we wish the Bill well, we will not vote against it on Second Reading. However, I give due warning that we are not rubber-stamping this process and that if the safeguards that we ask for are not put in place, we will be unable, sadly, to support the Bill on Third Reading.

9.46 pm

The Minister of State, Foreign and Commonwealth Office (Mr. John Battle)

We will be able to look back on tonight as the night that we introduced a Bill proposing putting the full weight of the House of Commons behind the establishment of the International Criminal Court. That will be a giant step forward for universal human rights and the rule of international law. For the first time, there will be a truly international body to try individuals responsible for the worst crimes known to humankind.

It is a night that we can be proud of, and we can be proud of the pivotal contribution of the United Kingdom legal team to the creation of the ICC in the first place. The statute is an international agreement that results from a protracted negotiation. It is in the nature of international agreements that we cannot get all that we want. Nevertheless, the Bill is in good shape and the International Criminal Court is shaping up.

Our aim in Rome was, above all, to secure an effective court that enjoyed the maximum international support. That was achieved to an extent that exceeded our expectations. Even better, support for the court has been maintained and has even grown since Rome. More than two thirds of the international community has signed the ICC statute and we are encouraging all countries to do so. We are pleased that the United States is a signatory and we hope that it will in time also ratify the statute. We will continue to encourage all those who have not signed to do so.

I know that many right hon. and hon. Members will be disappointed at being unable to take part in the debate. I think that for the first time in my 14 years, we have had a reflective and thoughtful debate on both sides of the Chamber. We have had a good turnout, with Members queueing to contribute. It is a pity that we do not have more time, but tonight's proceedings have reflected the seriousness with which the House is taking the matter. This is an international step forward.

Detailed questions have been asked and I will do my best to respond to them in the brief time available to me. The right hon. Member for Horsham (Mr. Maude) referred to the relationship between the international criminal courts that the previous Government set up in Rwanda and Yugoslavia. I remind the right hon. Gentleman that the provisions were embedded in domestic law. Two Orders in Council were passed under the previous Government in 1996 in accordance with the United Nations Act 1946.

I do not have time to go through all the right hon. Gentleman's amendments in detail, but he mentioned clause 65. Command responsibility is a well-established principle of international law that reflects the hierarchical structure of disciplined forces, but the language of clause 65 is taken directly from the ICC statute. There is nothing new or difficult in the language, but to exclude it or adopt different language would mean that a criminal responsibility could be prosecuted by the ICC but not by our domestic courts. In other words, ironically, it would increase the possibility of our service personnel being brought before the ICC. It is important for the protection of the armed forces that the test for command responsibility, under the statute and the Bill, remains the same. I look forward to the detail of any amendment that may be tabled on this point.

My hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington) said that it was important to welcome the Bill warmly and to be enthusiastic about it. He mentioned retrospection, and I shall refer to that later. He said also that we should be building a culture of justice against a culture of impunity; that was a good summary of the Bill.

I pay tribute to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). This may have been his last speech in the House and he said that the Bill was one of the most important that he had debated in his 35 years here. He always makes thoughtful and reflective speeches, with his legal expertise on these matters, and we thank him for his contribution. He mentioned that he introduced the Tokyo Convention Bill, which started these debates some years ago.

My hon. Friend the Member for Thurrock (Mr. Mackinlay) brought a wide-ranging historical perspective to the debate and showed that the purpose of the court will be to fulfil the historic ambition of United Nations of nearly 50 years ago. We are getting there. He mentioned residence, and I shall return to that point.

The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) spoke of the noble objectives of the Bill, and that has been an important part of the debate. We must not lose sight of the primary objectives. We must try to get the details right, but keep the objectives in mind. We are continuing to deal with difficult questions and terrible decisions in the context of international law, but we must get this international agreement up and running.

My hon. Friend the Member for Liverpool, Riverside (Mrs. Ellman) reminded us that we must learn from the Holocaust, and from events in Rwanda, Cambodia and elsewhere. She also injected a note of urgency. The purpose of our activity tonight, and of taking the Bill into Committee, is that we are seeking to be one of the first 60 signatories to help to shape the court and to be involved in the process of saying who the judges are and what its procedures are—but we must be at the table.

Mr. Blunt

The Minister has just said that we want to be one of the first 60 signatories in order to have a say in who the judges are. Will he confirm that we will have no more say than any or the other initial signatories?

Mr. Battle

If we are not one of the 60, we will not have a say at all. I sensed a worrying theme in the hon. Gentleman's speech and interventions; he was worried about foreign judges, rather than about getting the court up and running.

The hon. Member for Tatton (Mr. Bell) raised a serious question about the rights of the accused. We will return to the matter in Committee, but part 6 and clauses 55 and 67 provide safeguards for the accused.

My hon. Friend the Member for Bethnal Green and Bow (Ms King), who has participated in such debates before, used a helpful phrase—"international institution-building". We are doing the best we can in the circumstances. I will return to the questions of universal jurisdiction and discretion that she mentioned.

My hon. Friend the Member for Islington, North (Mr. Corbyn) has campaigned to tackle human rights abuses for some years and I know that he sees the Bill as a step forward. It will give hope to people whose human rights are abused. Incidentally, we can both welcome the fact that the UN High Commissioner has applied to extend her term for a further year.

The question of residence came up in several speeches, along with that of universal jurisdiction. We have a long-established practice of taking universal jurisdiction only as part of international law. The problem is that the statute does not require universal jurisdiction, so we do not think that we should go it alone and unilaterally say that we will do it all if the court will not do it. We could debate that in further detail, but the principle is that we would not stand in the way of extradition to another state, as provided for in the Bill, or of transfer to the ICC, but we cannot set ourselves up as a substitute court and go further than is proposed in the statute.

The concept of residence has clear links to UK law, including the War Crimes Act 1991 and the Sex Offenders Act 1997. There is a term in our law that is not the same as "presence" in the Canadian law.

Conservative Members stress their concerns about the armed forces. There is a fundamental misunderstanding, because we do not believe that the Bill poses a threat to our armed forces, and it will have no impact on their existing rules of engagement. The ICC makes no changes to the fundamental laws of war under which our forces operate, and which I assume are part of their training.

I remind the House that the former head of the British Army legal services, Major-General Tony Rogers, wrote: When carrying out attacks on military objectives, we are already under a treaty obligation not to cause disproportionate incidental loss and damage to civilian populations. The Geneva Conventions have been put to the test recently. I am lot aware we had any difficulties complying with our treaty obligations during the Gulf War of 1991 or the Kosovo war of 1999. The fear that the Bill would expose our services is unjustified.

The Bill is no threat to our armed forces and it will make a real difference to the lives of potential victims. If we are seriously concerned about the court's effectiveness, the best way forward is to pass robust legislation, get the statute ratified quickly and call on other states to do the same, giving the court our full backing.

The former prosecutor for the international tribunals in Yugoslavia and Rwanda, Judge Richard Goldstone, said: I have no doubt that the fears are without justification at all. Firstly the war crimes defined in the Rome Statute are really the most serious war crimes intentionally continued. In the second place … the ICC … will not have jurisdiction at all … over a British citizen if the British military and civil courts investigate in good faith any allegations made. Our own law will cover the situation.

We have a real opportunity to lead the way in setting up an international framework that will deliver and hold to account those individuals worldwide who are responsible for the worst crimes against humanity. Hitherto, there has been nowhere to bring to justice the Idi Amins, Pol Pots and Saddam Husseins, and there has been nowhere for the survivors of crimes against humanity to seek redress. We owe it to the history of the House and our parliamentary democracy to contribute actively and positively to putting the court in place.

Question put and agreed to.

Bill accordingly read a Second time.