International Criminal Court Bill [Lords]

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Mr. Gerald Howarth: I rise briefly to support my hon. and learned Friend the Member for Harborough. I have looked through several of the articles—in fact, I reviewed them again on the train this morning—and I marvel at his wonderful ingenuity in seeing potential pitfalls, which I, in my rude and rudimentary, non-legal fashion have failed to detect.

It is clear that there is an attempt in the statute of Rome to ensure that there is comprehensive protection for accused persons. Throughout our proceedings, the Government have sought to reassure us of their great confidence in the court and the structure that establishes it. We heard an enthusiastic presentation from the Government about how the court would be independent and unable to gang up on countries, about how excellent the judges would be, and how all the structures that have been put in place are designed to give us confidence that the ICC will be a proper and respectable court. I put it to the Minister, however, that articles can be changed.

It is my understanding that, in accordance with paragraph 7 of article 112,

    ``Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

    (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting''.

I understand that to mean that the quorum for voting will be at least 50 per cent. of the states parties and that any vote taken must have a two-thirds majority of those present and voting. Therefore, articles of the statute could be changed by one-third of the membership.

The Government will, no doubt, tell my hon. and learned Friend the Member for Harborough that his fears are unfounded because all the articles provide more than adequate protection for persons who are likely to be brought before the ICC. Nevertheless, if the Government were to accept my hon. and learned Friend's amendment, it would enact into UK law a real safeguard in the event of the articles of the statute being changed—by the mechanism that I have mentioned, if I am right—in a way that might remove from accused persons the kind of protections that we in the United Kingdom expect.

The new schedule proposed by my hon. and learned Friend would not in any way conflict with the statute. It would, however, provide some reassurance that the Government were prepared to include in the Bill a provision that any citizen of this country who was delivered up to the ICC would be entitled to all the rights, protections and privileges that they would be afforded under English law if they were facing indictment and trial in England or Wales.

That would do nothing to invalidate the Rome statute, and thereby cause problems for the present Government. However, it would be a way of saying that if an attempt were made to change the articles of the statute in a way of which we did not approve, such as to diminish the rights of accused persons, our domestic legislation would give power to a future Government to deal with the matter.

4.15 pm

I hope that the Government appreciate that we are trying to learn the lessons of the past and use them to foresee how the court might work out in practice. If we raise hypothetical cases that cause us, Ministers and other Government Members concern, I is because we are trying to foresee the unforeseeable. That is our duty when setting up a permanent international criminal court.

The Solicitor-General: I understand that the spirit in which the amendment and the new schedule have been proposed is one of genuine concern for the rights of accused persons. However, I want to reassure the Committee that they are unnecessary in terms of protecting the rights of accused. To introduce the provision would be in breach of our obligations under the statute.

The hon. and learned Member for Harborough took us in some detail through the provisions of the relevant articles of the Rome statute. He rightly pointed out the presumption of innocence in article 66 and the right of public trial in article 67, and that even in our jurisdiction a criminal trial can sometimes be conducted before a closed court if, for example, it involves evidence that touches on a matter of national security. It would be appropriate in certain circumstances for that to occur in the ICC, as recognised in the Rome statute.

The hon. and learned Gentleman raised the question of whether the accused would have any input into that. Natural justice is a well-accepted principle of international law. The statute provides clearly for a right of representation, so for the ICC not to accept representations by counsel for the accused as to whether the court should be open or closed would be inconceivable; it would be a clear breach of international law. I can reassure him on that matter.

The hon. and learned Gentleman also pointed out the right of cross-examination, and raised an interesting point about the right to remain silent in article 67.1(g). It could be argued that the provision in the Rome statute is more extensive than the rights laid down in domestic law. No doubt, like me, he has directed juries that in some cases adverse inferences can be drawn from the silence of the accused in domestic law. My reading of the provision is that that is probably not possible under the terms governing the ICC. On the interesting point of whether preventing the accused himself from cross-examining witnesses is in breach of article 6 of the European convention on human rights, he will know that there is a relevant case currently before the House of Lords in its judicial capacity. We await judgment on that controversial matter. However, I anticipate that the ICC would act in accordance with the decision of international tribunals such as the International Court of Human Rights.

The hon. and learned Gentleman mentioned, in relation to article 67, the right of the accused to have benefit of competent interpretation and translation in the language that the accused ``fully understands and speaks''. That provision is quite clear. The Rome statute provides that English and French be the two working languages of the ICC, and there are provisions about working languages in the rules on procedure and evidence. I will let him examine those rules later. However, I can assure the Committee that the accused will be fully protected in terms of adequate interpretation and translation.

The hon. and learned Gentleman also raised article 20, which concerns the right not to be tried twice for the same offence. He asked whether the domestic court would decide that particular matter. I interpret the wording of the statute to mean that if, for example, an English court had decided the issue under part V of the Act that the Bill will become, the ICC would decide that the person in question had already been tried. That brings us back to the issue of complementarity, with which we have dealt on previous occasions. The ICC will have jurisdiction only if the domestic jurisdiction does not deal with the matter in a bona fide way.

Article 55 deals with the rights of the accused person during an investigation. The statute clearly lays down those rights. As I have said, in at least one respect the statute goes beyond the rights given to an accused person in our domestic jurisdiction. It could also be argued, although it is a more academic point, that it goes even further, beyond the rights that are set out in article 6 of the European convention on human rights.

My second point, to which I referred at the outset of my remarks, was that introducing the provision into the Bill would place us in breach of our obligations. We have gone over that ground before. The Committee is already aware that nothing in the statute allows a state to refuse to surrender a person to the ICC because the ICC has not issued a written notice on the subject of rights at the time of the arrest, so to introduce the proposed provision would place us in breach of our obligations under the Rome statute. I give the Committee my assurance that the rights of the accused person will be protected at least to the extent provided for in domestic law. The provision would put us in breach of our obligations.

The hon. Member for Aldershot (Mr. Howarth) raised an issue about the amendment, which perhaps he will clarify.

Mr. Gerald Howarth: My concern is that the statute's articles have the power to be amended by only a third of the membership. If we enact the new schedule, perhaps with amendments, it would provide a safeguard against reducing the defences available to an accused person.

The Solicitor-General: I can take the hon. Gentleman through the provisions in the statute. Yes, it can be amended after seven years, but if he goes through the amendment provisions closely, he will see that that can be done only if there is a two thirds majority in the assembly, and then only if seven eighths of the assembly members have accepted the change. It is inconceivable that the ICC will move away from well-accepted international standards about the rights of accused persons in either the investigation process or the trial procedure.

Mr. Garnier: I shall be brief because I expect that we will be called downstairs before long. I am grateful for the Solicitor-General's reassurances. He will be the first to agree that those important rights need to be proclaimed, no matter how keen we all are that war criminals are brought to justice.

We are working under not only time constraints, but procedural constraints, because we are dealing with a statute that we cannot amend. I find that hugely and increasingly frustrating. We are currently discussing clause 2; I doubt that we will ever get on to schedule 3, or even schedules 1 and 2, which deal with the manner in which procedures are imported into our system. The Solicitor-General rightly mentioned article 55, but that is hidden away in schedule 3 on page 54 of a lengthy piece of legislation.

I am worried that we might push through an important Bill too quickly. People might say, ``So what? We all want to see an ICC—end of story.'' The Government are entitled, with their majority, to get their business through. I think, however, that we should be careful and, from time to time, think a little more deeply about what we are doing in this Room. I hope that we will not lose sight of that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6

Supplementary provisions as to proceedings before competent court

Question proposed, That the clause stand part of the Bill.

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Prepared 26 April 2001