International Criminal Court Bill [Lords]

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Mrs. Cheryl Gillan (Chesham and Amersham): When I was moving new clause 1 this morning, I did not have the advantage of a translation of the original French text. At the time, I thought it impolite to read the French text to the Committee without the benefit of a translation. However, after translating small portions of the text, the Library staff confirmed my suspicion that the opt out and the accompanying measures in the French legislation will not exonerate a French person who has committed a war crime. It was said in the debate that the French authorities want to take advantage of the transitional period to check that the guarantees introduced in the statute are effective, and to avoid any possible abuses impacting adversely on the French situation. Does my hon. and learned Friend agree that the French are pursuing this matter in a sensible manner?

Mr. Garnier: Yes, I agree wholeheartedly, and I say that as someone who has many reservations about certain aspects of French domestic and foreign policy—under both the current French Government and their predecessors. None the less, when French people and French Governments of whatever political colour consider the issue that is most important to them—the integrity of the French Republic—they do not shrink from putting French interests first. That does not mean to say that in doing so they are careless of the need to abide by civilised standards of conduct in peace and in war.

In due course, I shall turn to the seven-year opt out under article 124, but there seems nothing inimical in the French's interpretative declarations. Nothing has served to undermine the French Government's enthusiasm for, or the cogency of arguments in favour of, setting up the court. I regret that, even if my arguments may brush this Government's imperial hem from time to time, in terms of votes I am powerless to persuade them to change their minds.

I should remind the Committee of one or two other matters that the French thought it important to get on the record before signing up to the treaty. Their sixth interpretative declaration continues:

    ``The Government of the French Republic considers that the provisions of article 8, paragraph 2(b)(ii) and (v)''—

which are:

    ``(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives''

    ``(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives—

    do not refer to possible collateral damage resulting from attacks directed against military objectives.''

4.45 pm

That reinforces the point that I was making a moment ago: war is a beastly business. When using heavy artillery to direct high explosives at a legitimate military target from some miles away, it is inevitable that not every missile, projectile or shell will hit the intended target, and undefended civilian dwellings and buildings may be damaged as a consequence. The French have had the common sense to recognise that and to say to the world at large, ``Get real.'' Regrettably, we do not seem to be sufficiently courageous to do that.

The seventh interpretative declaration states:

    ``The Government of the French Republic declares that the risk of damage to the natural environment as a result of the use of methods and means of warfare, as envisaged in article 8, paragraph 2(b)(iv)''—

that is:

    ``(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated—

    must be weighed objectively on the basis of the information available at the time of its assessment.''

The French are asking the court to do precisely what I was talking about a moment ago, when I was concerned that sub-paragraph (b)(iv) required the application of a subjective test, not an objective one. If the Government recognise the good sense of the thrust behind declarations 1 to 7 as put out by the French—

4.47 pm

Committee suspended for a Division in the House.

5.2 pm

On resuming—

Mr. Garnier: I have outlined the French interpretative declarations and, beyond reminding the Committee of my remarks this morning, I will not refer to the New Zealand declarations because they are on the website for all to see. No doubt all members of the Committee will be familiar with the New Zealand interpretative declarations.

I shall give the Committee an idea of the different sorts of declarations that are appearing. That entered by the state of Israel is more like an essay on the history of Israel. It states:

    ``Being an active consistent supporter of the concept of an International Criminal Court and its realisation in the form of the Rome Statute, the Government of the State of Israel is proud to thus express its acknowledgement of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity.''

After describing how Israel was one of the originators of the concept of the international court, it continues:

    ``At the 1998 Rome Conference, Israel expressed its deep disappointment and regret at the insertion into the Statute of formulations tailored to meet the political agenda of certain states. Israel warned that such an unfortunate practice might reflect on the intent to abuse the Statute as a political tool. Today, in the same spirit, the Government of the State of Israel signs the Statute while rejecting any attempt to interpret provisions thereof in a politically motivated manner against Israel and its citizens. The Government of Israel hopes that Israel's expressions of concern of any such attempt would be recorded in history as a warning against the risk of politicisation, that might undermine the objectives of what is intended to become a central impartial body, benefiting mankind as a whole.''

The declaration carries on in a similar vein, while supporting the concept behind the ICC.

I do not want to belittle any of those declarations, and certainly not the one made by the state of Israel. Those made by Austria, Belize and Finland are simply technical and procedural and tell the world how they wish to receive communications from the ICC, while there are other, rather discursive, declarations, of which Israel's is an example. We then have the type made by France and New Zealand. I do not suggest that our Government should have made a declaration along the lines of Israel's, and it is not necessary, given the way in which the statute is framed, for us to have entered declarations or reservations along the lines of those of Belize or Finland.

However, we should not dismiss, wantonly or lightly, the way in which the French have approached the matter. What is behind these and other considerations is not narrow nationalism, or even an unwillingness to support—as I am sure that we all do—the principles behind setting up the court, but a simple acceptance that modern actions by troops and armed forces are extremely complex, sensitive and difficult. The French have been courageous enough to tackle the issue head-on and confront those difficulties. It will not do for us, either as a Government or Parliament, to suppress those difficult questions.

Modern war involves many levels of response, and is a hugely complex issue, but, as I said before the Division, it is a beastly business. We must not, in the comfort of this Committee Room, or the policy-making rooms in Departments or party political headquarters, forget what we are about. We are considering the introduction of a code of conduct in relation to killing people. The universal jurisdiction, to which my hon. Friend the Member for Reigate referred, is no more or less than an assessment or realisation that we are talking about power, backed by military might. There can be no such thing as universal jurisdiction or a universal court unless it is backed by military power. In a civilian context, it is difficult to enforce the law without a police force, so it will be extremely difficult to enforce the law of the ICC without military might.

That has been true ever since the concept of international jurisdiction began in Roman times. The Romans were able to develop the concept of international jurisdiction in the suppression of piracy in the Mediterranean because they had the fleets to do so. In the days of our expanding empire 200 or 300 years ago, we were able to protect our trade routes and maritime trading fleet from pirates only because the Royal Navy ensured that we were in charge.

Let us not pretend, in signing up to the ICC, that we can do so in any spirit other than one that confronts the nastiness of war, the need for military might and the political will to back up our policies.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): Does the hon. and learned Gentleman think that the experience of the former Permanent Court of International Justice and, post-1945, the International Court of Justice, militates against his argument that international courts require their judgments to be enforced by military power to be effective? Neither of those courts enjoyed that sort of backing and the majority of their judgments have been observed. There have been exceptions when the matter took a long time, such as the Corfu channel case, but the hon. and learned Gentleman's argument does not reflect 20th century history.

Mr. Garnier: I disagree with the right hon. Gentleman, because the courts that he touched on were not courts that dealt with the consequences of war, but courts that often dealt with how to prevent war. That is a different matter, and the distinction is worth remembering.

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