HL Deb 20 July 1998 vol 592 cc623-33

5.50 p.m.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean)

My Lords, with the leave of the House, I shall now repeat a Statement on the International Criminal Court which is being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:

"Madam Speaker, it has been the policy of this Government to back the creation of an effective International Criminal Court. I am pleased to report to the House that in Rome on Friday Britain was part of the overwhelming majority that agreed to set up such a court. It has been a paradox of our century that those who murder one person are more likely to be brought to justice than those who plot genocide against millions. The International Criminal Court will put on notice the Pol Pots and the Saddam Husseins of the future that they may be held to account personally for the crimes against humanity that they instruct others to carry out. And it will offer justice to the victims who have no means at present of bringing their suffering before any court. I ask the House to place on record my appreciation of the hard work by the British team through five weeks of difficult and intensive negotiations. The firm support given by Britain to the principle of an International Criminal Court and the leading role played by our delegation in brokering a consensus contributed to the successful outcome of the Rome conference.

"The result is a strong court with wide powers. The court will have the power to try cases of genocide, war crimes and crimes against humanity. These will include crimes of sexual violence, such as the use of mass rape as an instrument of ethnic cleansing of the kind practised in Bosnia. It will also be an offence liable to prosecution before the court to conscript children under 15 into military service.

"The British delegation played a key part to secure a definition of war crimes which embraces internal conflict, not just wars between states. This is of great importance, as most of the violence of the past two decades has arisen from internal not external conflicts. The British team also took the initiative in proposing that the court should have power to order those who are guilty to pay reparations to those who were their victims. This is a new power which is not available to the current tribunals on the former Yugoslavia and Rwanda and reflects the fact that those who abuse their power to commit crimes against others often also abuse their power to make themselves wealthy. We consistently rejected attempts by other countries to give the court the power of the death penalty and were successful in maintaining a majority against an international body having the power to order the death penalty.

"Much of the debate in the period running up to the Rome conference revolved around the independence of the prosecutor. I am pleased to report that with British support the prosecutor will have the power to initiate investigations leading to prosecution on his or her own authority. States which are party to the treaty can also refer alleged crimes for investigation, but the prosecutor can take the initiative without waiting for such a referral.

"It has been our objective from the start to secure maximum support for the International Criminal Court. To be credible such a court must command substantial support in the international community. I have to say to the House that the final vote in support of the court by 120 votes to seven exceeded our expectations. The large number voting in favour was in part a reflection of the comprehensive international presence at the Rome conference, which was helped by the financial support Britain and others provided to the costs of attendance of 50 smaller and poorer states. In order to build that overwhelming support it was necessary to meet the concerns of a number of countries who supported the International Criminal Court in principle but had reservations about its proposed procedures. In particular, it was necessary to agree that countries signing up to the court should have the right to claim immunity from prosecution from war crimes for a period of up to seven years. That immunity is time-limited; it does not extend to the rest of crimes within the remit of the court such as crimes against humanity; and it can in any event be overridden by a resolution of the Security Council. It is much more restricted than the initial bid by a number of countries which wanted an indefinite right to opt-out from any of the crimes within the remit of the court.

"I understand the regrets of those who would have preferred there to be no such reservation, but I firmly believe that it was right to make a limited compromise in order to secure wider support for the court and thereby achieve greater credibility for its authority. I am sorry that at the end of the Rome conference the United States felt unable to support the compromise proposals. I understand the concerns of the United States over the security of its servicemen who are posted abroad, but we believe that those concerns are misplaced. Britain also has a large number of servicemen in posts abroad and we and other major NATO allies are satisfied that the safeguards built in to the International Criminal Court will protect our servicemen against malicious or politically motivated prosecution. In particular, it is a clearly established principle of the court that it will be able to prosecute only when there is no remedy in national law. We are confident that we can demonstrate that there is a remedy in British and, for that matter, in United States justice for accusations made in good faith against our servicemen. The screening of cases by the pre-trial chamber of the International Criminal Court will provide a safeguard against accusations brought in bad faith. We will continue to seek, through close dialogue with our United States partners, to bring them on board for this improvement to international justice which has gained such overwhelming support from the rest of the international community.

"Later this year the world will celebrate the fiftieth anniversary of the signing of the Universal Declaration of Human Rights. There can be no more fitting way for us to mark that anniversary than by this agreement which, for the first time, creates an international court to enforce the most fundamental of those rights. I hope that it will secure support in this House as overwhelmingly as it has already done in the international community".

My Lords, that concludes the Statement.

5.58 p.m.

Lord Kingsland

My Lords, I congratulate Her Majesty's Government on bringing the negotiations in Rome to a successful conclusion. In doing so, they have increased my already considerable admiration for the noble and learned Lord, Lord Archer of Sandwell. Many noble Lords will recall that on 9th June this year the noble and learned Lord initiated a debate on the Rome negotiations. Six weeks later we find that 120 countries have agreed with nearly all that he proposed—almost in the manner of a Mexican wave.

I am also very pleased for the noble and learned Lord, Lord Shawcross, who began this campaign when he was Attorney-General at the time of the Nuremberg trials. That it has at last reached fruition must give him enormous satisfaction.

There are many aspects of this agreement that represent a remarkable achievement. The Minister has referred to some of them. In particular, I emphasise the fact that the agreement will apply to internal conflicts. So many of the modern conflicts in which atrocities are committed are internal. That the law will now apply to such conflicts represents a massive advance. Those states which have signed up to this aspect of the agreement are to be warmly congratulated. I know that the United Kingdom negotiators played a leading part in that.

It is also extremely good news that the prosecutor in proceedings before the court will act entirely independently of the influence of individual states. There was a fear earlier that no prosecution could be initiated without the permission of the state on whose territory the alleged atrocity was committed or by whose nationals the atrocity was alleged to have been committed. It is a great achievement to have got round that problem.

It is also a great achievement to have put in plan a pre-trial inquiry to wash out of the system any bogus allegations. I had hoped that this pre-trial inquiry would have been sufficient to allay the fears of the United States. We all regret that that country is not participating in this.

Speaking personally, although not everybody in your Lordships' House will agree, I am pleased that the Government resisted pressure for the death penalty.

There is, however, one immense drawback and one matter which will need the most careful consideration by Her Majesty's Government over the next few years. The drawback is that there is a seven year prohibition on the instigation of any prosecution for war crimes. The great strength of the Nuremburg trial was the fact that it caught the big fish; it did not just catch the "bit part players". That is what gave the Nuremburg process its real credibility. That is what enabled Germany to reconcile itself to what happened during the war.

The great failure of the War Crimes Tribunal in Bosnia is that the big fish have not been caught. The feelings in that country are as bitter as ever about what happened. Unless the big fish can be caught in a country where these awful crimes have been committed, the major object of an international court against war crimes—which is to reconcile the victims to the awfulness of what has happened to them—will never be achieved. The failure to arraign Mr. Milosevic for what has happened on the former territory of Yugoslavia is perhaps the chief reason that there are still tensions in that area. Until we can find a way of achieving that, those tensions will continue.

I should like to ask the Minister what plans the Government now have to initiate a series of procedures which will ensure that war criminals and those who commit acts of genocide are brought to justice. Will the Security Council, for example, be given powers to require member states which are hiding or harbouring alleged war criminals to extradite them and bring them to justice? What sort of provisions will be made to ensure that witnesses can come freely to give evidence without fear of the consequences? What guarantees will there be that the trial will be fair and above board? The devil is in the detail and there is much detail to be decided before we can be confident that this new mechanism will work.

I have one final thought and it is this. The work of an international criminal court is inevitably ex post facto. The crimes have already been committed. The main aim of international society must be to prevent those crimes happening in the first place. Sometimes that requires the application of force at the right moment. The great tragedy of the former territory of Yugoslavia is that the Security Council and NATO have not had the courage and the vision to use force at the right time. We now have another opportunity to take that decision at the right time for Kosovo. I hope, following the example of the excellent work Her Majesty's Government have done in establishing an international criminal court, that they will take the lead in this matter as well.

Lord Lester of Herne Hill

My Lords, I am sorry that my noble friends Lady Williams of Crosby and Lord Avebury cannot be here to say what I am now going to say from these Benches. It gives me enormous pleasure to be able to agree both with what has been said by the Minister and what has been said by the noble Lord, Lord Kingsland. I agree with everything they have said.

Perhaps I may begin by expressing gratitude to the Government for having made this Statement to both Houses. In a very crowded parliamentary timetable it seems to me to show a civilised sense of priorities that on this historic day both Houses of Parliament have been informed.

As the Minister said, this is an historic occasion, particularly opportune during the year of the 50th anniversary of the Universal Declaration of Human Rights, 100 years after the International Red Cross first proposed that there should be an international criminal court. We had thought, after the Second World War and Nuremburg, that we would put behind us gross violations of human rights, crimes against humanity. But, as the Secretary-General of the United Nations reminded us: Our time—this decade even—has shown us that man's capacity for evil knows no limits". That is the importance, I think, of setting up this independent new powerful International Criminal Court.

I should like to pay tribute to the hard work done by an outstanding British negotiating team in Rome, including two remarkable members of the Government's legal service, the Foreign Office legal adviser, Sir Franklin Berman QC and Mr. Christopher Muttukumaru, the former legal adviser of the Ministry of Defence. I should like to pay tribute also to the tireless efforts of human rights NGOs which have pushed and prodded governments over these past many years.

I think that the statute is a fair and reasonable compromise and I agree with the Government as to why it is necessary to reach that compromise to obtain the widest possible consent among the countries of the world. It is regrettable that among the handful of countries that have not signed should be three great democracies: one of the oldest, the United States; the largest, India; and one of the smallest, Israel. It is particularly regrettable because none of those countries has anything to fear or to hide in relation to this jurisdiction.

The United States taught the rest of the world a great deal about the principles of due process and the rule of law. India has a great independent judicial system, as has Israel. Indeed, many Jews were among those who after the Second World War fought tirelessly for the creation of an international criminal court. I therefore very much echo the words of an editorial in today's Financial Times expressing the hope that the super-power of the United States—and I would add India and Israel—seeing itself as a guardian of the world's conscience should think again otherwise, in the case of the United States, it could jeopardise its claim to the high moral ground in international affairs.

Perhaps I may say that it was useful to have been able to obtain a copy of the statute on the Internet this morning. It is a fascinating document. I hope that the Government will ensure that hard copies are made available with an explanatory memorandum before there is full parliamentary scrutiny and debate.

I should like to ask one or two questions. The first is on the timetable for ratification. I gather that 60 states need to ratify before the statute can come into force. Will the Government do everything they can to ensure that there is no unreasonable delay in ratification either by us or by the rest of the world? Secondly, does the Minister agree that the role of national courts is of critical importance, as well as that of the International Criminal Court, in providing effective domestic remedies so that there is no hiding place for those who commit crimes against humanity or war crimes? Does the Minister think that the example set by Denmark in prosecuting alleged war criminals accused of crimes in former Yugoslavia is a model that might be emulated elsewhere?

Will the requirement in the statute that a state must have consented to the court's jurisdiction be a serious hindrance to the universality of its jurisdiction?

Finally, perhaps I may say a word about the judges. Obviously the quality of the 15 judges is crucial. The statute uses fine language about the quality of the judges. They must be of high moral character, impartiality and integrity, with qualifications required for appointment to high judicial office in their own countries, and so forth. The statute says the right thing. Will the Government do whatever they reasonably can to ensure that the 15 judges will be of the highest quality so that we have a court of which the world can be proud and in which we can all have confidence?

Baroness Symons of Vernham Dean

My Lords, I thank the noble Lords, Lord Kingsland and Lord Lester of Herne Hill, for their support for the Statement. I endorse what the noble Lord, Lord Kingsland, said about my noble and learned friend Lord Archer of Sandwell and the 9th June debate. I also thank both noble Lords for the warm words they spoke about the civil servants who have laboured hard in the past five weeks in Rome to secure an agreement, sometimes against tricky odds. The agreement was consistent with the negotiating remit that the Government had set them. It was a difficult remit which we are pleased to see they were able to meet in large measure.

I thank the noble Lord, Lord Kingsland, for what he said about the negotiations on the internal conflicts and the independent prosecutor. We all feel that they were important points to have secured. The noble Lord mentioned the seven-year period—I think that he used the word "prohibition"—as something of a drawback. I would not describe it as a prohibition but more as an opt-out. States "may", in ratifying the statute, opt out of the court's jurisdiction for seven years, but that period is not renewable. After that, so long as they do not withdraw completely from the treaty, states parties will have to accept the court's jurisdiction with regard to all crimes included in the statute. That was an important point, because we did not want cherry-picking of the treaty.

I take the point that for some the seven-year opt-out will be a disappointment. It was a concession made during negotiations, because it was felt important to secure the maximum number of countries agreeing to the treaty. It was a different negotiation from the one which some countries had wanted, which was to be able to specify with which parts of the treaty they would comply and with which parts they would not comply. Her Majesty's Government felt that that compromise was worth making.

The noble Lord also spoke about the drawbacks in the way in which some war crimes have been dealt with as regards the former Yugoslavia. Her Majesty's Government do not believe that the ICTY has been a failure just because it cannot get hold of some of those whom we would like to see prosecuted. We are pleased with the progress that the tribunal is making, because since last summer a steady stream of indictees has been transferred to the tribunal. One contested verdict has already been handed down; seven indictees are currently being tried; and 13 more are awaiting trial. Trials are proceeding more rapidly now that the UK-funded courtroom is in operation.

The noble Lord, Lord Lester, raised a number of interesting and important points and said some nice things about our negotiators in Rome. I shall try to cover the points that he made. Of course we are concerned about the fact that the US and other important countries were not able to support the treaty. As I explained in the Statement, the US is anxious about the vulnerability of its servicemen. The UK has worked hard with the US to try to address those concerns. We are confident that the US has sufficient safeguards within the terms of the agreement. One of the matters that was important was the point that the noble Lord brought out about the position of domestic law. The main safeguard is the provision that the court could not act against our nationals or indeed against US nationals unless we or they were unwilling or unable to mount a national investigation.

We hope that the US will realise that there are comprehensive and sufficient safeguards. We in the UK will work hard to try to persuade the US to sign up to the agreement. There are also other countries—we are sorry that India and Israel are among them—which were unable to support the final package. Of course their support is highly desirable. We shall continue to urge them not to stand in the way of the rest of the world going forward on this issue. We hope that when they see the way that the international court operates many of their fears will be allayed.

The noble Lord asked also about the quality of judges. The judges are an important issue. It is one of the points upon which the leader of our delegation, Sir Franklin Berman, concentrated. He chaired the working group on that issue. We believe that we ensured a useful agreement on that point. At least half of the judges will have criminal trial experience. That is an important point. There are also provisions to ensure that only judges of the highest calibre are nominated for election. The elections must take place on merit. We hope that some good women judges may be among those whose merits are recognised.

I shall say a few words about the court being less effective than it might be because of the countries that have not signed up to the treaty. The court will be able to act if the state in which the alleged crime was committed or the state of the accused's nationality is a party to the agreement. That is an important factor: both points are important here. Some states wanted the court to have automatic jurisdiction over crimes taking place anywhere in the world, but there is a problem of legal principle in creating a court with jurisdiction over states which have not signed up to its jurisdiction. Nevertheless, as I have said, we hope that we shall persuade those states that felt unable to sign up at the moment that it is in their best interests to do so. We shall go forward on that basis. I thank both noble Lords for the warm support that they gave the Statement.

6.17 p.m.

Lord Archer of Sandwell

My Lords, will my noble friend accept on behalf of the Government and the negotiating team my congratulations on the positive role that they have taken and on augmenting the respect that they have built up over the past 18 months among the NGO community? Will she get a message to the US Government that not only has it cast a shadow over a significant milestone in human affairs, but it has forfeited the respect in which it was previously held by the NGO community? Will she tell the US Government that those of us in this country who have, for a long time, regarded ourselves as friends of the US, find it difficult to say anything in its defence on this matter, and that unless it joins the régime it will find itself in some dubious company?

Baroness Symons of Vernham Dean

My Lords, I am delighted to accept my noble and learned friend's congratulations. I shall ensure that those to whom they are properly due read the appropriate passages in Hansard. My noble and learned friend then went on to say some pretty trenchant things about the US. I hope that I have explained the concerns of the US with regard to the treaty. They are genuinely felt. We do not believe that they are necessary. We believe that the treaty covers the genuine concerns felt by the US. The more constructive way to go forward on this is by persuasion rather than confrontation. We shall speak to the US as a good friend of justice throughout the world. We hope that the US will gain confidence by seeing how many countries can ratify the treaty, and that in due course it will be persuaded to take the same view as the UK Government.

Lord Renton

My Lords, I, too, wish to pay tribute to the Government and those who have helped them in this great matter. It did not surprise me that the Minister mentioned the noble and learned Lord, Lord Archer of Sandwell. He is an old friend and has played a valuable part. I wish to endorse a question that he put about the United States. Is it not strange that the United States, which played such a vital part in establishing the United Nations and in attempting to uphold international law, should not be willing on this occasion to take a positive step towards upholding it?

Perhaps I may ask two questions about enforcement. First, I am glad that the prosecutor is to be an independent person. But he will need to have an enforcement agency, just as the Crown Prosecution Service in this country relies upon the police as an enforcement agency. I give that as an example. What enforcement agency will be at the disposal of the prosecutor bringing cases to this court?

My second question is on enforcement by the court of its own decisions. That may be too complicated a question for the noble Baroness to answer, but it is important that we know how the decisions of this criminal court are to be enforced, otherwise its jurisdiction will be not be effective.

Baroness Symons of Vernham Dean

My Lords, I thank the noble Lord again for his kind remarks.

I recognise the concern in your Lordships' House about the United States not being willing to sign up at present to the provisions of the treaty. Having talked through these matters, the negotiators believe that the remaining differences with the United States are relatively few and that the gaps in the negotiating positions are already narrower than they were; and we must hope that they continue to close even further.

Of course we hope that the United States will see that the safeguards in the statute are comprehensive and sufficient and that it will be willing to work hard towards the goal that we believe is so important. Even if that proves impossible, we confidently expect that the court will persuade doubters by the way in which it works in practice; and that international support for the court will grow progressively when countries which have not found it possible to sign up at this stage see the way in which it works.

The noble Lord asked a number of questions about enforcement. The court will be backed up. Three of the five Permanent Members of the Security Council support the treaty. I make that point because in the end these issues may well come back to the General Assembly of States Parties to consider enforcement if enforcement is for any reason flouted by any of the states parties to the treaty. There will of course be recourse to the states parties through the General Assembly.

However, perhaps I may say this to the noble Lord. I shall arrange for the document on the treaty, which is very detailed, not only to be available on the Internet, as the noble Lord, Lord Lester, said it was—and these days the Foreign Office is looking much more modern than it used to—but also ensure that a hard copy goes into the Library of the House. I hope that the noble Lord will then be able to look at a number of detailed provisions in the hard copy that I shall make available in the Library of the House.

Lord Kennet

My Lords, I join with others in congratulating the Minister on what she has said. It is remarkable, and a matter for general rejoicing, that on two successive sitting days my noble friend has been able to introduce measures of one kind or another which distinctly and successfully take mankind further from the routine horrors of war. While there is still some way to go, it is an achievement.

I know that the issues of landmines and this court have been close to the heart of the Foreign Secretary and his team since the election and before. I have two questions. First, can the noble Baroness cross the t's and dot the i's about the arrest of suspected alleged war criminals who happen to be nationals of non-signatory countries? Is that absolute? If all the signatories and the full court agree that a person should be tried, and would be tried were he not American, Indian or Israeli, for instance, is there nothing more to be done about it? As a subsidiary question, let us suppose that a crime has been committed by a Trobriand Islander on the soil of the United States, Israel or India. Is there nothing to be done about it?

Secondly, when does the moratorium, the seven-year amnesty, the advance pardon—whatever we like to call it—begin? Has it begun already? Can it by any chance be interpreted to have begun a year or two ago, because that would be convenient and shorten an absurd interregnum? Alternatively, must we await some further decision before it begins?

Baroness Symons of Vernham Dean

My Lords, I thank my noble friend. It has been a great pleasure to introduce legislation last Friday and to make the Statement today. The Statement is consistent with what the Government said in their pre-election manifesto. I hope that Members of your Lordships' House will be as pleased on the coming Friday about what we have done on landmines as the noble Lord indicates he already is.

The noble Lord asked from when the opt-out runs. It runs from the date of the ratification of the agreement. A country that is ratifying the agreement may at that point declare its opt-out for seven years.

The noble Lord also asked what would happen to those individuals who were nationals of countries which had not signed up. It is important to be clear on this point: that the court is able to act if either the state when the alleged crime was committed, or the state of the nationality of the accused, is party to the court. It might not be that the individual was a national of a country which had signed up to the agreement. It might be that he had committed the alleged crime in a country that is a party to the agreement.

However, I must make one further point to the noble Lord. The Security Council acting under the UN charter may refer situations to the court regardless of where they occur. That is an important point for your Lordships to remember in this respect.