International Criminal Court

HL Deb 09 June 1998 vol 590 cc947-62

7.40 p.m.

Lord Archer of Sandwell rose to ask Her Majesty's Government whether they support the establishment of an international criminal court.

The noble and learned Lord said: My Lords, I am grateful to those noble Lords who are attending the debate. I am particularly grateful to those who have indicated an intention to participate. I appreciate the opportunity to discuss the subject while there is still time to influence the outcome.

When future historians are asked what was the outstanding achievement of the 20th century, I believe that very near to the top of the list will be the establishment of a regime of international law and order and the concept of an international community.

There is still a long way to go. National sovereignty is still cited when a nation state is called to account for the damage which its activities have imposed on the global community. But we now have in place a wide system of treaties and conventions imposing obligations on individual states and a network of bodies to regulate activities on a global scale and to attach some sanctions to those obligations.

Even the most powerful nation states—those which are aggressively conscious of their national sovereignty—now operate within a framework of constraints which would have been inconceivable at the beginning of this century. Unhappily, the 20th century has also witnessed horrific crimes against individuals, often on a massive scale.

Among the last of the no-go areas where the writ of the international community does not run is the right of a nation state to protect its individual nationals from accountability to the international community, even when they have been guilty of actions which they must know infringe worldwide standards of morality and which are a flagrant infringement of international convention.

Since the 1940s, when the world community, speaking through the United Nations, declared genocide to be outlawed, there have been discussions as to the creation of an effective global system of criminal sanctions applied to individuals and administered by an international criminal court. Tribunals established ad hoc to deal with a particular situation such as Nuremburg, and more recently Croatia and Rwanda, are susceptible to taunts that they present victors' justice and do not carry the authority of a court which is already in place administering an accepted system of substantive and procedural law.

In 1989, the General Assembly instructed the International Law Commission to prepare a draft statute for the establishment of an international criminal court. It returned with a text in 1993. But the assembly could not reach agreement. A number of states declared that they could not see the need for such a court. Then the assembly established an ad hoc committee, open to all United Nations members, to draft a treaty giving effect to the statute.

The committee has done a great deal of work, seeking where possible to overcome the objections of states whose consciences have told them that their nationals might find themselves before the court. The committee has been greatly assisted by members of the NGO community, who have provided a high degree of expertise. In particular, I am grateful to the Coalition for an International Criminal Court, consisting of a number of leading NGOs in this country, for keeping me up to date with developments. I also wish to express my thanks to Assistant Professor Hays Butler of Rutgers University for his valuable bibliography on the subject. Next month, it is hoped that a draft text of the statute will be put to a gathering of national representatives in Rome.

The progress that has been made should be an occasion for rejoicing. But at this moment that would be premature. There are three possible outcomes from the Rome discussions. We may present history at the close of the 20th century with a great step towards a safer and more just world; or there may be no agreement and no court; or they may cobble together a compromise which enables them to announce the establishment of a new court but which in fact is without teeth and without the power to curb the atrocities and suffering which we have seen in Bosnia and Rwanda. There will be some hard bargaining in Rome.

Among the questions which remain to be decided is whether prosecutors shall be independent, able to decide on jurisprudential criteria as to whether a prosecution shall be initiated or whether it should require the consent of the state to which the accused belongs or the state in whose territory the alleged crime took place. One United Nations official is quoted in a recent article in the Guardian as saying that if you kill 100,000 people you are more likely to escape justice than if you kill one.

A possible compromise may be to make prosecution subject to the consent of a chamber of the court at a pre-trial hearing. That would operate as a safeguard against frivolous prosecutions, although if we may assume that the prosecutors who are appointed will be responsible and trustworthy individuals, frivolous prosecutions are not likely. I should be grateful to hear my noble friend's comments on that question.

Then there is the role of the Security Council. Should it have power to stop a prosecution and, if so, for what reasons and on what grounds; or should the constraint go further, and a prosecution require the positive consent of the Security Council before it can proceed—bearing in mind that that would require unanimity so that a single member could veto any prosecution. In a world which now believes itself subject to the rule of law, is there a place for a veto on prosecutions by a political body?

Thirdly, what is to be the interface between national domestic jurisdictions and the international court? No one wants to duplicate prosecutions, and there may well be problems of double jeopardy. But can a nation state be permitted to exclude the jurisdiction of the court simply by initiating a show trial designed to produce a whitewash? Surely the final decision on whether there is an effective national jurisdiction should be with the international court. Perhaps my noble friend will tell us the Government's thinking on what has come to be called by a new word which is not likely to find its way into any poetry books—"complementarity".

A fourth question is whether the court will have power to operate and enforce a reparations regime to compensate victims. The criminal courts of this country have power when someone is convicted of a criminal offence not only to pass sentence on the offender but to order him to pay compensation to the victim. It is part of the process of bringing home to the offender the loss that his conduct has caused and of reassuring the victim that the community understands the injury that he has suffered. The draft statute makes reference to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and to the reparations guidelines. I am grateful to Redress for reminding me of the issue, and I look forward to my noble friend's comments on that matter.

To date, the Government have a good record in these discussions. My right honourable friend the Foreign Secretary has done great service to the reputation of this country among those who care for human rights and who value the rule of law. But on all these issues there will be a need for a clear statement from the United Kingdom and for a leadership which, if it does not come from this country, is unlikely to come from the western hemisphere. I hope that my noble friend can assure us that the Government will seek to secure for the 20th century a place in history as a period of compassion, of the control of power and of respect for the rule of law.

7.50 p.m.

Lord Grenfell

My Lords, I am most grateful to my noble and learned friend Lord Archer of Sandwell for putting this important Question tonight.

There was a certain poignancy, two weeks ago, to find oneself reading the obituaries of that outstanding American war crimes prosecutor, eminent lawyer, historian and human rights activist, Telford Taylor, who died on 23rd May at the ripe old age of 90. He must have thought it sad, perhaps intolerable, that 50 years after the Nuremberg and Tokyo trials and all that should have been learned from them, there was still no permanent court to try and to punish the perpetrators of the kinds of crimes that had so horrified the world at that time.

It is an irony that might have brought a wry smile to Telford Taylor's lips that, three weeks after his death, the international community is finally sitting down to negotiate the international human rights treaty which will set up an international criminal court. When 185 nations gather in Rome next week, they will, we hope, put an end to this unacceptable situation in which for so long the myth of impunity has unbalanced the scales of justice.

We are here tonight to seek assurances from Her Majesty's Government that during these difficult negotiations they will not only continue to support strongly the creation of the court, which they have done so far and on which I congratulate them, but that they will insist on its unassailable independence.

My noble and learned friend Lord Archer has very well described the intended remit of the international criminal court. It is hard to conceive how any modern democracy could wish otherwise than to see established a permanent tribunal to bring to justice the perpetrators of genocide and crimes against humanity. We cannot for ever rely on the kinds of ad hoc arrangements such as the International Criminal Tribunal in The Hague, which the war crimes in the former Yugoslavia made necessary, or the Arusha tribunal for Rwanda. I do not criticise the work that they have done, but they are ad hoc arrangements, and we need a permanent court.

The negotiations have proved, and continue to prove, extraordinarily difficult. As my noble and learned friend indicated, one reads that there are still 1,700 square brackets to be removed from the texts. From my days at the United Nations I remember how square brackets used to keep us up all night and how difficult they sometimes are to get removed. In this case, the devil is not just in the detail. The key question of the independence of the court is still on the table, and that is what I wish to address in the remainder of my brief remarks.

The international criminal court must be an impartial, independent and legitimate court. If it is not, it will be useless and one would then be forced to agree with Amnesty International's sad opinion that no international criminal court would be better than a weak international criminal court.

It has, of course, to be a United Nations body, for only the United Nations can invest it with the international legitimacy and authority which it must have. What is clearly not acceptable is that its status as a UN-created body should confer any licence on the Security Council or any UN member state to interfere in its operations.

That raises the question, also raised by my noble and learned friend Lord Archer, of the independence of the court's prosecution service. The court's chief prosecutor should have the right to initiate investigations on his or her own initiative, based on whatever sources are accessible, and subject only to the appropriate scrutiny by a chamber of the court's own judges. That should maintain the court's independence, while deterring politically motivated or frivolous investigations.

However, if reports are to be believed, there are some states, such as France, the United States, China and Russia, which insist that no investigation can be triggered unless and until the Security Council refers the matter to the court. That is unacceptable. The court cannot be kept subordinate to the Security Council. Those who claim that it should be argue that it is the only way to prevent ill-advised prosecutions from interfering with the council's primary task of maintaining international peace and security. They further argue that crimes should, where possible, be dealt with by the state in which they are committed, with the international court as a last resort. We know what the problem is when it is left to the state to decide whether a prosecution should be brought. These are weak arguments.

Maybe others who know the issues better than I do can correct me if I am wrong, but I understand that Singapore has put forward a compromise which would permit the Security Council to decide, on a vote, to bar the court from involving itself in an area of conflict already on the council's agenda. I should like to ask my noble friend the Minister whether that is acceptable to Her Majesty's Government. I fear that it is, but I rather hope that it is not. It is the foot of interference in the door of independence, and in time that door will simply be pushed open wider and wider. I hope that Her Majesty's Government will not feel in any way intimidated by the fact that other permanent members of the Security Council appear to disapprove even of the Singapore compromise for just the opposite reasons and want the council to give positive approval for any and every prosecution in areas of active interest to the council.

The Rome negotiations may well be the last opportunity we have to fill a most glaring gap in the armoury of world justice. We must not allow a weak, half-hearted solution to emerge. As Telford Taylor memorably declared: There are some universal standards of human behaviour that transcend the duty of obedience to national laws". It would be a fitting recognition of his high principles if a permanent international court were established that would ensure that a failure to live up to those universal standards of human behaviour would be impartially judged and appropriately sanctioned by the international community. That can only be realised if the court is truly impartial and not in any way subject to political interference.

7.58 p.m.

Viscount Waverley

My Lords, I rise with trepidation, being the only totally lay person contributing to this important subject this evening. Kofi Annan had this to say: There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance". He had genocide in mind, and so it is hoped that the establishment of an international criminal court will ensure that humanity's response to genocide will be swift and just. It is 50 long years since the United Nations first recognised the need for an international criminal court to prosecute crimes such as genocide, with the court being referred to as the missing link in the international legal system. I can only partly agree; much else needs to be done, in my view.

It is true to say that too often acts of genocide and gross violations of human rights go unpunished and a practical need for such a court, recognising that the Court of Justice only handles cases between states, could well be a practical necessity.

Fundamental questions of a practical nature, however, must be asked. What law is the court going to apply? What states will be agreeing to it? What procedure will it be following? What will be the standard of proof? How will penalties be determined and applied and what will be the appeals process? And, more generally, to what extent will the court, whilst serving principled aspirations, purely be an ineffective vehicle for practical realities?

The world now faces a multitude of differing odious crimes. There is a fundamental united desire for the majority of those crimes to be addressed by all civilised states in order to bring the perpetrators to justice.

I would not necessarily limit the court to genocide, war crimes and crimes against humanity. It could, under certain circumstances, relate to drugs, terrorism, asylum, corruption, child abuse, whether bonded labour or pornography—the list goes on.

I accept that Trinidad and Tobago did make a start in 1989, through the General Assembly, by asking the International Law Commission to resume work on an international criminal court to include drug trafficking. What happened in that regard? The court, as being considered, might be too cumbersome an institution to refer or determine such equally malodorous matters, facing a constant conflict between national legislation weighed against its ideals.

Is not there a real case to be made for a more harmonised approach among members states towards national legislation, which would ensure general and more consistent standards, and one would therefore hope enforcement, as felt generally applicable.

I do not wish to go too wide of the Question of the noble and learned Lord, Lord Archer. But two examples come to mind where a common approach to national legislation would be beneficial, and could be in tandem as establishing an international court, so as to give the court real teeth through being effective and able to deliver a rapid response.

The first example has an immediate relevance given that our Home Secretary is going to make a statement before the Recess on matters relating to corruption. In addition, the noble Baroness, Lady Chalker—who is not in her place—recently sent around a note expressing concern about the, many tragic examples of how transnational corruption impedes worthwhile development projects and impacts most adversely on the poorest in society". By coincidence and extension, I am considering the merits of a private Member's Bill to address the broad responsibility of British multinationals abroad covering a wide range of environmental and human rights issues, which would also take in issues of corruption. The United States Foreign Corrupt Practices Act of 1998 initiated talks between many countries, including the United Kingdom, with the object of agreeing on common legislation to combat bribery and corruption of public officials in international business transactions. And again, in the area of terrorism, we all know that organisations and individuals based in the United Kingdom are funding or otherwise aiding terrorism outside the United Kingdom, generally making this country a safe-haven.

So again we can turn to the United States. Under a 1996 law relating to anti-terrorism legislation, it is a criminal offence to provide funds or other forms of material support or resources to designated foreign terrorist organisations. I hope our Ministers are considering a similar approach, as failure to do so would not be targeting the nub of the problem.

Finally, the partly misunderstood, outgoing Colombian President, who has been in the front line in the fight against drugs, has long advocated greater global co-operation in the fight against criminal organisations. One of his proposals, in a speech to the United Nations, referred to the need to reach global agreement on judicial co-operation that would include judicial reciprocity and assistance in the exchange of evidence, judicial seizure of assets derived from drug trafficking, terrorism, and extradition.

So the case, in summary, would be to proceed with the international court, but also to work as a matter of urgency to harmonise national legislation, with a view to the future dismantling of intra-regional borders, and then to get on and put all the world's ills to right.

8.5 p.m.

Lord Thomas of Gresford

My Lords, the commitment of the noble and learned Lord, Lord Archer, to international affairs and international justice is of long standing and I thank him for raising this issue tonight.

In the latter days of the Second World War the name of Belsen was branded upon my mind, young though I was. As the noble Lord, Lord Grenfell, pointed out, those who were closely involved in the liberation of those camps and who, like Telford Taylor, were involved in the Nuremberg trials, must have believed that horrors on that scale could never happen again. The United Nations organisation was to be the safeguard of collective security and the Genocide Convention, adopted on 9th December 1948, must have appeared at that time to be a potent weapon to deter the war criminal and the mass murderer.

In its judgment the Nuremberg tribunal said: crimes against international law are committed by men and not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced". Thus it was that the 1948 convention recognised that genocide could be committed by constitutionally responsible rulers, by public officials or by private individuals and the principle of individual criminal responsibility and accountability against all persons who commit acts of genocide was then established. It is the foundation of the draft code formulated by the International Law Commission in 1996 at the request of the General Assembly. It applies equally, without any exception, against anybody through the governmental hierarchy or the chain of military command all the way down to the private citizen.

Yet genocide has not been stopped. The optimism has not been fulfilled. Cambodia lost 2 million lives in the killing fields; Bosnia devised ethnic cleansing; the scale of the original genocide in Rwanda could barely be grasped. Saddam Hussein was responsible for attacks upon his own citizens, the Kurds and the Marsh Arabs. And perhaps on this very day in Kosovo, in the Great Lakes of Africa and in Algeria the killing, raping and torturing of civilians continues. Law is meaningless unless it is enforced.

Hence the vital importance of the Rome Conference to commence on Monday next. Many thought it would be 50 years before an international criminal court could come into being. But there has been progress. The preparatory committee, which held its sixth and final session at the United Nations headquarters in New York in March and April, was able to adopt a draft statute for the establishment of the court. The Rome Conference will, it is to be hoped, finalise and approve a convention for setting up the court. It hopes to produce a draft which can be submitted to the General Assembly for approval and adoption later this year.

Mr. Kofi Annan, the Secretary-General, has already been quoted. But I do not apologise for quoting his words again. He said this further: In the prospect of an International Criminal Court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our best to see it through to the end. We ask you to do yours, to ensure in our struggle that no ruler, no junta, no State, no army anywhere can do anything to abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they too may sleep under the cover of justice; that they too have rights and that those who violate those rights will be punished". The United Nations is well served by its Secretary-General.

Perhaps I may address some of the core issues raised by your Lordships, matters which will have to be determined. There is the question of jurisdiction to consider. The noble Viscount, Lord Waverley, asked what law would be applied. The court should have jurisdiction over genocide as defined in the 1948 convention, committed in times of both peace and war; other crimes against humanity, when committed on a systematic basis or large-scale murder; extermination; the forced disappearance of persons; torture; rape; enforced prostitution and other sexual abuse. Justice for women in that regard must be at the forefront of the court's responsibilities. The court should also have jurisdiction over arbitrary deportation across national frontiers and the forcible transfer of population within national frontiers. Other crimes that the court should cover include arbitrary detention, enslavement, persecution on political, racial, religious or other grounds. One has only to go through the catalogue of those crimes to realise how grave an issue faces the proposed international criminal court.

It should also have jurisdiction over serious violations of humanitarian law in international and non-international armed conflict. There should be no threshold, no requirement that the violations of humanitarian law in either type of conflict were part of a plan or policy or part of a large-scale commission of such crimes. There is much work to be done.

The noble and learned Lord, Lord Archer of Sandwell, when introducing this Question, referred to consent to prosecution. A requirement that the consent of any state is needed before any investigation can commence will wreck the effectiveness of the court, whether it be the consent of the state which has the custody of the suspect or the accused, or the state where the offence occurred; or the state of the accused or of the victim's nationality. The purpose of the court is not to supplant the national jurisdiction of any court, but to step in when it perceives that the organs of a particular state have completely collapsed, as happened in Rwanda; or that the political will to bring offenders to justice is lacking, as has happened, regrettably, in Bosnia. The court must therefore have an inherent jurisdiction without the requirement of consent. It must have universal jurisdiction—that is to say, the right to prosecute any individual wherever in the world a crime is committed.

As regards defences, none can be allowed to be introduced to these crimes which are prohibited by international law, such as superior orders, duress or anything that weakens the principles of individual criminal responsibility. That is the principle to which I referred in the judgment of the Nuremberg tribunal.

As for the independent prosecutor, he is the only truly effective person who can ensure that all cases which should be brought before the court are in fact brought. An independent prosecutor should be able to initiate investigations of any crime within the court's jurisdiction on his or her own initiative, based on information from any source, and also to present search and arrest warrants and indictments to the court for approval without the interference of any state.

There is a precedent. The prosecutors of the international criminal tribunals for the former Yugoslavia and Rwanda have these powers. Referrals and state complaints should only be a supplement to other sources for the prosecutor. Both the Security Council and states are political bodies and they may, if they so choose, select situations for investigation on political rather than legal grounds.

So it follows that no political body, including the Security Council or the state, should have the power to stop or even delay an investigation or a prosecution under any circumstances whatsoever. There is no legitimate ground under international law or morality to obstruct justice by stopping or delaying investigations of crimes of genocide and so on. Any delays in an investigation permit the memories of witnesses to fade and facilitate the destruction of evidence and the intimidation of witnesses. No state should be allowed to introduce statutes of limitation for these crimes because that would mean that the international community could not investigate or prosecute persons who have successfully evaded justice for a prolonged period of time.

There are other issues that need to be addressed such as victim protection and the question of a fair trial. Any trial before the international criminal court must be held in accordance with the highest international standards at all stages of the proceedings. As regards finance, the experience of the Yugoslavia and Rwanda ad hoc tribunals demonstrates that an international court must receive stable and adequate finance and human and technical resources to ensure that it functions effectively.

In the absence of a permanent international court, the perpetrators of atrocities may believe that they will go unpunished. The history of the 20th century shows that, by and large, they have been right. The will to set up ad hoc tribunals is lacking and, as the noble and learned Lord, Lord Archer, pointed out, the complaint arises with ad hoc tribunals that it is the victors who are punishing the vanquished with laws promulgated after the event. For heads of state, commanding officers and for the lowliest platoon Mai Lai commander and for the so-called freedom fighters, the likelihood of condemnation and punishment is the only deterrent against acts of violation and barbarism. Genocide, ethnic cleansing, rape and murder must earn condign punishment, swiftly and fairly administered. This is a step forward. One hopes that the Rome Conference will come to a final conclusion and put into the hands of the international community a potent weapon.

Yesterday I became a grandfather for the first time. I held my new grandson in my arms realising that he will have a life expectancy of some 80 years up to the year 2080. I thought to myself, as I was preparing this speech for your Lordships, let us hope that he does not have to face and deal with the sort of problems that have afflicted us and our generation at this time.

8.16 p.m.

Lord Kingsland

My Lords, I should like to join those of your Lordships who have congratulated the noble and learned Lord, Lord Archer of Sandwell, on introducing this debate at such an important moment in the development of an international court of criminal justice.

The noble Lord, Lord Grenfell, quite rightly referred to Mr. Telford Taylor and the crucial contribution he made at the Nuremberg trial. I believe that it is also appropriate tonight that we should remind ourselves of the immense contribution that the noble and learned Lord, Lord Shawcross, has made to what I hope will happen in the middle of this month, not only as Attorney-General at the time of Nuremberg but also constantly since then in advocating the outcome that we all fervently hope will take place.

I suppose that there are at least three vital reasons why we ought to set up an effective international court of criminal justice. The first is quite simply to make sure that the perpetrator of evil faces up to the consequences of what he has done; and, if convicted, spends the rest of his life behind bars.

The second reason is that the existence of an international criminal court will be a deterrent to people who contemplate committing crimes like genocide and crimes against humanity; although I should remind your Lordships that that will only be true if the court enjoys an effective system to bring the alleged offender before it. For example, if we look at the court which is dealing with the events that took place in Bosnia, we have to come to the sad conclusion that the real reason why that court is not effective is not its composition but the absence of any effective mechanism for getting the accused in front of it. Unless in two weeks' time the right decisions are taken in Rome about that, however elegantly the jurisprudence is defined in the draft documents and however well designed is the court itself, it will be a futile exercise.

The third reason why the court will be important is that unless the perpetrators of war crimes are brought to justice, the societies in which the atrocities happened will never come to terms with those events. Again, from what is happening in Bosnia it is clear that that is so. There will never be reconciliation to the events in Bosnia until the people who committed the crimes there are brought to justice.

I entirely agree with what the noble and learned Lord, Lord Archer, said about the importance of getting the procedure right in the court. A remark attributed to Winston Churchill was that the strength of the protection of the criminal accused is the mark of a civilised society. That must apply equally to an international society just as to a national society. However, it is equally true that unless we get the mechanisms right for bringing the accused to the court, the procedures alone, however good, will not get us any further down the road to success.

I wonder how carefully the Government have thought this through. What happens if a nation state in which a crime has been committed refuses to yield the suspect? What remedies do the Government have in mind to recommend to the drafting convention? Would they, for example, consider giving powers to the Security Council to implement any request for the accused to be brought before the criminal court? Would a government, if necessary, use force to ensure that a suspect within their jurisdiction is brought before the court?

What of the crimes themselves? Will the Government consider including the crime of aggression in the range of crimes that will be adjudicated upon? One of the most important reasons why the Nuremberg trial was able to bring individuals such as Generals Jodl and Keitel to justice was the existence of the war crime of aggression in the terms of reference at Nuremberg. One of the reasons why we have not been able to bring Mr. Milosevic to justice is that the war crime of aggression was not included in the list of crimes under the jurisdiction of the Yugoslav court.

What attitude will the Government take? There are those who think that, if aggression is included, there should be a veto by the Security Council on whether the court can go ahead with the prosecution. Others believe that even if the court ought to go ahead with a such a prosecution, at any particular moment, were it to become politically embarrassing, the Security Council ought to be able to call a halt to it. What is the Government's attitude to that? Indeed, what attitude will the Government take to political interference generally in the activities of the court? Several noble Lords have made that point. Will the Security Council have some sort of veto either ex ante or in the course of an investigation or prosecution? What role should a nation state be able to play in deciding whether a prosecution should start or whether to stop it in course?

All of those matters are crucial to whether an international court of criminal justice will be a success. I entirely agree with what all noble Lords have said about the importance of the independence of the prosecutor. I wonder whether we have investigated sufficiently carefully whether the role of the investigator and the prosecutor should be under the same head. In this country investigations are conducted by the police but prosecutions are conducted by the Crown Prosecution Service. Should there be a distinction between the functions of investigation and of prosecution in the international criminal court? Have the Government considered that? If so, what is their approach?

Ought the crimes to apply internally within states as well as between states? What of the case of Iraq and the initiative by my right honourable friend Mr. John Major in establishing safe areas? The Government have taken a bold initiative on the existing problems in Kosovo. Does that mean that they will support the jurisprudence and jurisdiction of the international criminal court with respect to war crimes committed by a leader in his own state?

Even if we get all of those questions right, we should be under no illusions about the role that such an international court of criminal justice can play in international society. It would be a great mistake to use the existence of an international criminal court as an excuse for not doing anything else about wrong-doing. There is no substitute for collective security in the world in which we live at the moment. I am sad to say that even if there had been an international criminal court in the 1930s, I very much doubt whether it would have acted as a deterrent to Hitler.

So, when we are facing the present crisis over Kosovo, it is crucial that this time, as we failed so lamentably to do at the time of the siege of Vukovar, we recognise that the only response in the circumstances of today which can possibly stop what is happening there is force.

I trust that when the noble Lord replies, he will give me the answers that I wish to hear.

8.26 p.m.

Lord Whitty

My Lords, I too am grateful to my noble and learned friend Lord Archer of Sandwell for the opportunity to debate this important topic and for the deep personal knowledge and commitment that he brings to it. This is, indeed, a key time for us to be debating this issue. As noble Lords have said, the draft treaty will be discussed on Monday of next week in Rome. The United Kingdom will be there both in the guise of the EU presidency, represented by my honourable friend Mr. Tony Lloyd, and as the UK Government. It is important that that conference succeeds.

I have listened to all the points made and it is clear that all in the Chamber agree that the time is right for a permanent international court. Public opinion supports it. Sadly, the most appalling atrocities continue to be perpetrated around the world and, by and large, the world media bring them to our attention. The international community has responded in two of the worst cases by setting up the ad hoc tribunals for the former Yugoslavia and for Rwanda. However, as those tribunals demonstrate, there is clearly a need for an institution that is able to act quickly wherever such heinous crimes are committed.

The Government are strongly in favour of the establishment of an effective international court, designed to try crimes of the most serious nature. We see the creation of an effective court as a key component of the Government's policies on human rights, the upholding of international humanitarian law and the prevention of conflict. The Government have played an active part in the negotiations on the establishment of the court. We have sought to give an early lead to others through the publication of a policy paper, which was laid before this House and another place in February.

We subsequently held a meeting of EU experts in February. We have contributed a substantial sum to the UN Trust Fund to assist representatives of the least developed countries to attend the conference in Rome. We have worked closely with the NGO community, which understandably has a close interest in the establishment of the court. I pay tribute to its efforts in this area.

We are not yet there. There is still much to resolve at Rome, as my noble friend Lord Grenfell indicated. The text contains many square brackets. The more sensitive topics still under discussion include which crimes should fall within the jurisdiction of the court; how investigations are initiated; whether prior consent is needed by state parties before an investigation can take place; the role of the Security Council; and the question of how the court should be funded. Most of those issues have been raised by noble Lords.

We recognise that most of the nations of the world operate within the rule of international law but we need a new instrument for three main reasons: first, to ensure that in those instances where international law is not observed justice is done effectively. If the principles of international humanitarian law are to be upheld, we must ensure that those who commit the most serious international crimes cannot do so with impunity. Secondly, there is the issue of deterrence. We hope that in future at least some of those who are tempted to commit atrocities will hesitate in the face of an effective instrument that punishes those who commit such crimes. The third issue is reconciliation in societies that very often are terribly war torn. The knowledge that those who have committed atrocities are to be brought to justice may help some who have suffered to put the past behind them.

The United Kingdom Government want a court that is permanent and fully effective but have set in safeguards to ensure that it operates properly. It must have sensible limits to its jurisdiction. Those should be focused on crimes of greatest international concern. It must reinforce, not redefine, international agreements for peace and security under the UN Charter. If the court is to be properly effective, those who adhere should accept its jurisdiction over all the crimes listed in the statute establishing the court and should have a mandatory obligation to co-operate with requests from the court. The consent of state parties with an interest in a case should not be necessary before individual prosecutions or investigations can take place. Nor should it be possible for state parties acting in bad faith to resist requests from the court for disclosure of information on manifestly ill-founded national security grounds.

However, there must be safeguards. My noble and learned friend Lord Archer and my noble friend Lord Grenfell referred to complementarity with national legal systems. The court should not act when national legal systems are clearly able and willing to do so. But the court should have the authority, having heard the views of the state with jurisdiction, to determine whether that is truly the case. States acting in bad faith cannot use complementarity—or what might be termed negative outcome show trials—as an excuse to shield suspects from the international court. Conversely, states should not be able to use the court as the means of avoiding a politically embarrassing or financially costly trial at home.

The noble Lord, Lord Thomas, and the noble Viscount, Lord Waverley, questioned the jurisdiction of the court but came to somewhat different conclusions. The view of the Government is that the court's jurisdiction should have a clear demarcation so that it concentrates on the crimes of greatest international concern. We believe that those should cover genocide, crimes against humanity and grave war crimes, whether committed within or between states—to deal with one point raised by the noble Lord, Lord Kingsland. It should also include in particular crimes committed during internal conflicts since recent history has shown that that is where war crimes of this nature most often occur.

The crime of rape and other crimes of sexual violence committed in armed conflict should be properly defined and explicitly added to the court's statutory list of war crimes. We also support the inclusion in that list of the crime of recruitment of children into armed forces. Appropriate procedures will be required for other cases of abuse involving women and children.

To reply to one matter raised by the noble Lord, Lord Kingsland, the court should have jurisdiction over the crime of aggression, but that has to be defined and determined. The Government believe that it should be limited to those cases where the Security Council has determined that aggression has taken place. We believe that that would depoliticise or at least reduce the political pressures on the court itself.

The noble Viscount, Lord Waverley, raised the question of extending jurisdiction beyond that. In our view the list of war crimes should include only those recognised in customary international law. The Rome conference will not be able to settle some disputed questions such as the use of nuclear weapons. The noble Viscount also raised the question of the extension of jurisdiction to drugs, child abuse generally, environmental crimes and corruption. I agree with him that increased judicial co-operation is required in all of these areas, but those areas are not envisaged as part of this court's remit. To extend its field outside armed conflict or serious international crime—crimes against humanity and genocide—runs the risk of diluting the effect of the court. There are already arrangements for dealing internationally with crimes related to terrorism and drug trafficking. To include those in the court's jurisdiction would divert it from its main task.

A number of difficult points have been raised and have not yet been settled. They will be subject to serious negotiation in Rome. In particular, we have referred to the independence of the prosecutor. The United Kingdom Government will strongly support the independence of the prosecutor and the authority of that office. We need to protect that office from political pressure. At the same time, there is a need for appropriate checks and balances to guard against capricious investigations by the court. This will be difficult. My noble friend Lord Grenfell will understand that we do not wish to set out in great detail tonight our negotiating position. Our delegation in Rome will be deeply involved in those negotiations and hopes to take a lead at the conference. I can assure my noble friend that the principles he has enunciated this evening are those of Her Majesty's Government. Coupled with that were queries about the role of the Security Council. The court should reinforce and not redefine existing arrangements. The Security Council must be able to refer cases to the court when acting under Chapter VII of the UN Charter; otherwise, it is likely that more ad hoc tribunals will be required to carry out decisions of the Security Council.

Queries were raised about the Singapore compromise. The view of Her Majesty's Government is that the Security Council should, when the court begins an investigation, have the power to request a time-limited suspension of cases when it determines that international peace and security may otherwise be damaged, for example when court action may derail sensitive peace negotiations under the jurisdiction of the Security Council. Similarly, in the first instance it will be for the Security Council, not the court, to decide when aggression has taken place. Part of the reason for giving the Security Council some initiative in this matter is to ensure that rogue states cannot get off the hook. They will include states who are not party to the treaty. The Security Council should be able to use its powers under Chapter VII, whether or not a state is party to the statute of the treaty setting up the court. None of this detracts from the fact that the Government wish to see the prosecutor having independent jurisdiction and the court having power to initiate prosecutions without those being approved by either the Security Council or the states involved and they should generally be free of political interference.

My noble and learned friend Lord Archer referred to the question of reparation. Her Majesty's Government support the provision for the court to order those whom it convicts to pay reparations to victims. We support the obligation on party states to enforce those judgments.

We believe that despite the negotiating difficulties still outstanding, Rome will signal a success on the road to the creation of an international court. It is hoped that this House will within a fairly short period consider the primary legislation that is required to enact the provisions in order for us to meet our obligations under a treaty that we can sign. The creation of a permanent international court is a historic task. It will be a major new organ that will play a crucial role on the world stage for many decades to come.

The 20th century has been a dreadful and barbarous one and continues to be so for many people around the world today. I end by joining with the noble Lord, Lord Thomas, in saying that, for the sake of all our grandchildren, we hope to create this court as part of a more civilised approach to international matters in the 21st century. I thank my noble and learned friend Lord Archer for tabling this Question and all noble Lords for their contributions.