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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.

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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.

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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.

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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

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:

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.

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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:

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.

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