International Criminal Court Bill [Lords]

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Mr. Blunt: I am saying that, on the basis of their population, that is likely. That is all that one can say. I base my assumption solely on the size of their populations. Extremes of population have an effect on the way in which the Assembly of States Parties votes on those positions, and all of the 18 judges on the ICC must come from different countries. That means that the field of judges from which one is obliged to select is unlikely to be of as high a quality as it would be if one had a free choice of jurists regardless of their nationality and if there were no voting process—if the judges were appointed on the basis of a straightforward selection test of their ability as jurists. That is true not least for the reasons that my hon. Friend the Member for Aldershot (Mr. Howarth) made clear. Because of the secret ballot, the election of the judges and the way countries vote will always be subject to negotiation.

I am certain that if we ratify the statute, the United Kingdom and France, as two major players, will be successful in getting a judge elected as a member of the court. Of course, I cannot be wholly certain, because the judges will be elected by secret ballot. However, if the United Kingdom has a candidate for the panel, the Foreign Office will attempt to ensure that we can rely on the votes of those members of the Commonwealth and of the European Union that have ratified the treaty. We would use the networks to which we belong to secure support for our candidates—as will every other country. If a country is small and wants to focus on one particular institution, it has quite a lot to trade—on vote out of a narrow field of only 30 for the election of a prosecutor or a two-thirds majority out of 40 for the election of a judge.

Mr. Browne: I am sure that the hon. Gentleman agrees that any method of appointing judges or prosecutors that involves some international aspect will come up against the sort of complexities and interactions that he has identified. In my experience as a practising lawyer for more than 20 years, any method of appointing judges or prosecutors, no matter what it is, comes in for some sort of criticism from some source or another. That is healthy and democratic.

However, I am interested in testing the hon. Gentleman's arguments against his principled position of being in favour of the court. His arguments should therefore stand a test of logic. How a prosecutor or deputy prosecutor—for completeness, the deputy prosecutors are also elected, not appointed by the prosecutor—behaves, and whether he or she behaves properly, will be a function not of how he or she is appointed, but of whether he or she sticks to the rules that are laid down and the standards that are set. The real test is: does the statute create a set of circumstances in which we can have confidence in the behaviour of a prosecutor or deputy prosecutor, no matter how they are appointed; and if they do not behave properly, can we remove them?

Could the hon. Gentleman address his comments to the contents of articles 42 and 46, which deal with the removal of prosecutors and deputy prosecutors in certain circumstances, and tell us where they are deficient? The system of appointment will never be perfect—even his own preference, which appears to be a weighted majority, has a lot of flaws, some of which have been identified here. Therefore, the system of making sure that we stick to the rules has to be robust. Is it or is it not robust?

12 noon

Mr. Blunt: I am grateful to the hon. Gentleman because he has got to the kernel of the issue. There is nothing that we can do about the statute now. It is done. It is signed. It is not up to the Committee to change that. The purpose of my amendment is to put the flag in the ground as to what happens if it does not work in the way that we intended. The hon. Gentleman is therefore absolutely right to focus on what happens ``if''.

The body that will decide whether a prosecutor in an individual case is behaving properly is the appeals chamber of the court. The hon. Gentleman will have examined the requirements for the election of judges. Judges require a two-thirds majority to be elected. Of the candidate judges, those 18 are chosen who then receive the most votes in the Assembly of States Parties.

I shall try to illustrate what happens if a prosecutor misbehaves by giving a case study. Let us say that a prosecutor is most enthusiastic to bring the major states to justice because he thinks that, for example, the way United Kingdom and the United States are behaving over Iraq is wrong. He wishes to bring the British Prime Minister or the commander of the operations there to justice, as he sees it, and he is determined to begin an investigation after some appalling accident in Baghdad.

The people who will decide whether or not he is correct to do so are two types of judge. There are judges who are skilled in humanitarian law and those who are skilled in criminal law. Given that the trial chamber and the pre-trial chamber have to have a preponderance of judges who are skilled in criminal law and that it is mandatory that, of the 18 judges, nine are skilled in criminal law and five in international and humanitarian law—with particular respect to crimes against women and children—the appeal court will be filled with jurists whose expertise is likely to be predominantly in humanitarian law. Judges who go into that area of law have a particular outlook on the conduct of cases and a particular attitude to authority. The court is not, therefore, likely to be representative of the population or of the legal profession as a whole, because it will attract people who have a particular concern about the exercise of rights.

I hope that the ICC will not operate like that, and that it will operate fairly. However, we all know that judges have their own opinions and that they can be as political as the rest of us. Some astonishing political judgments have been handed down from time to time, particularly by international tribunals, but not least, as the hon. Member for Kilmarnock and Loudoun said, by judges in the United Kingdom. One cannot control the appointment of judges. They will always be controversial.

Mr. Browne: With respect to the hon. Gentleman, he misreads the statute. In terms of qualifications for judges, paragraph 3(b) says:

    ``Every candidate for election to the Court shall:

    (i) Have established competence in criminal law and procedure . . . or

    (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights''.

Those are examples. A candidate will not have to have such expertise, although I think that it would be a significant advantage in the ICC. The words ``such as'' are crucial. The judges will not consist only of what the hon. Gentleman describes somewhat disparagingly as humanitarian lawyers.

Mr. Blunt: The hon. Gentleman is right to point to paragraph 3(b)(i) and (ii), but it is pretty clear that the judges are likely to be drawn from those who have established competence in relevant areas of international law. Because of the injunction placed on the statute and if the election is fair—which we cannot know, because it will be a secret ballot by the Assembly of States Parties—those candidates with expertise in humanitarian law are likely to be successful in the selection of judges.

My point is not that that will not work, but that it might not work. I am trying to make it clear that the people with the biggest and best reputations as champions of international humanitarian law are likely to be those who are at one extreme end of the spectrum of the enforcement of rights under the law. That is at least possible. All that has to be established is that it is possible for a court constantly to seek to push the boundaries of its competence, jurisdiction and definition of human rights, as European courts of all varieties have done, including the European Court of Human Rights and the European Court of Justice. Juries may be anxious to accrete areas of responsibility and definition to them and much will depend on the way in which they define the law. Therefore, even if the selection of judges and prosecutor and everything else is all right at the beginning, an area of practice could be established by the court over time and develop in a way that was wholly unexpected by the Ministers or the Government of the day who negotiated the statute.

My amendment would put a stake in the ground to say that, at the end of the day, there must be a test of reasonableness. In the most extreme case, the United Kingdom may find that the ICC is bringing to justice our citizens in circumstances in which the UK does not believe that a case should have been brought, or in which they have been acquitted in such a case.

Mrs. Gillan: I have listened carefully to the arguments that my hon. Friend is deploying on his amendments, and he is to be congratulated on the way in which he has engaged the whole Committee in reasonable debate. Has he had an opportunity to consider article 40, on the independence of judges? Paragraph 4 deals with the self-policing nature of judges in decisions on whether they are engaging in suitable activity. Paragraph 3 states:

    ``Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.''

Does my hon. Friend agree that, because of the self-policing nature of the judges in this instance in respect of independence, it is important that the Committee debates on a ``what if'' basis, so that we can establish the Government's thinking and highlight an important part of a court that we hope will ultimately be successful and bring the right people to justice in the right fashion?

Mr. Blunt: My hon. Friend is right to point that out. It is also fair to point out, as I am sure the Minister will, that the judges will serve for a fixed term—a maximum of nine plus three or nine plus six years. Once the court is up and running, the maximum terms will be nine years for judges and, I think, 10 years for the prosecutor if his term is extended. If, in the view of the Assembly of States Parties, the nature of the court goes wrong and it takes on an unwelcome identity or character, there will be an opportunity progressively to change its personnel. In effect, two judges will be changed every year, so the nature of the court can be changed.

However, if in the Assembly of State Parties a group of 77 countries takes a particular view and votes together for judges of a particular character, the United Kingdom cannot stop them. We might find that that group of 77 countries can then use the ICC as a lever against the United States, the United Kingdom, France, China and Russia —the permanent members of the Security Council —against whom they do not have any other levers, to police the manner in which the security operations of the United Nations Security Council are conducted around the world. They could do that by putting their own people into the positions of prosecutor and judges.

That is the risk to which we are exposed. I am not saying that that will happen—I cannot possibly say that. The point is that nobody knows what will happen. In passing the legislation now, we can give no guarantees to future Prime Ministers of this country or to future commanders of our armed forces in the field that they will not be arraigned by an ICC with a particular agenda. The purpose of my amendments is to provide a flag in the Bill so that, if we find ourselves in a position in which our jurisdiction is overridden by the ICC—as it can be under the Rome statute—and British citizens find themselves facing the ICC after they have faced an investigation and trial here that have been found wanting by the ICC, Parliament can, through a Committee of Inquiry, make a judgment about whether the behaviour of the ICC was reasonable. That should be automatic in the Bill.

That is all that my amendments would do; they do not destroy the statute. We can ratify the statute. If it works as we hope it will, it will create an immensely important institution, but we must bear in mind what could happen in 10, 20, 30, 40 or 50 years' time. It is appropriate that we show that we are aware of what could happen.

I know that my speech has been long; but we have had a good debate with a vast number of interventions. If the court goes wrong in decades to come and turns into an institution that works against the interests of the United Kingdom, we can show that in our Committee debate, we accepted and identified potential problems. If the court does not behave in the fashion that we anticipate it will, we will have marked our ground with the amendments.

 
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