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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-memoire 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


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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.

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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

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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.


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