International Criminal Court Bill [Lords]

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Mrs. Louise Ellman (Liverpool, Riverside): I refer the hon. Gentleman to a discussion in a previous sitting. Does he reject the assurances given by the Minister when reference was made to the importance of the pre-trial chamber, the appointment of judges and prosecutor and the importance of impartiality in those matters?

5.30 pm

Mr. Blunt: I do not reject those assurances, but they cannot be absolute. What the negotiators on behalf of the United Kingdom tried to achieve byu adding the pre-trial chamber to the statute during the Rome negotiations is another element in the protection against the court becoming the political tool of certain states. However, I would argue that the pre-trial chamber does not actually do that. It is supposed to put a lock on the prosecutor, but that does not prevent the three judges of the pre-trial chamber, if a victim appeals to it, from instructing the prosecutor and going on to conduct inquiries if the prosecutor decides not to conduct an investigation at the beginning of the prosecution. The pre-trial chamber, therefore, does not act simply as a lock on the prosecutor, but acts as a body that can itself receive the complaints of victims who are likely to request the court to initiate an investigation. The court might decide to initiate investigations in circumstances in which our soldiers were involved, even when we in the United Kingdom had decided that they should not face trial because we had decided the actions were wholly proper, and when our political leadership had made it clear that they thought that they were acting within international law. In such a case, the pre-trial chamber would not operate in the way intended.

I want to add new clause 7 to the Bill to give a clear indication of our concern about the direction that the court may take. My hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Chesham and Amersham speaking to the other new clauses in the group have made important points to which I want to add. Will the Minister explain the Government's understanding of the negotiations on article 124, which contains the seven-year opt out? I assume that France was the nation that pushed for that article and that exception. We understand from the record that the measure is intended to give the French seven years in which to arrive at a judgment on whether the court is working properly.

Mr. Battle indicated assent.

Mr. Blunt: I see the Minister nodding in assent. The plan was that if the project went sour very quickly, after seven or even six years, and became a vehicle to chase after the United Kingdom, France and the other permanent members of the United Nation Security Council, a nation might withdraw under article 127 and ensure that its soldiers were not tried in an international court that failed to meet the expected standards of impartiality.

The reason why that is a real concern can be seen in the declarations made by the states themselves. My hon. and learned Friend the Member for Harborough went through the French reservations in detail, but one can see from those entered by New Zealand that both those countries approach the matter from different directions, especially in relation to the use of nuclear weapons. The Government of New Zealand draws

    ``support for its view in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (1996) and draws attention to paragraph 86, in particular, where the Court stated that the conclusion that humanitarian law did not apply to such weapons `would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.'''

That directly contradicts France, which makes clear its view that it is allowed to use nuclear weapons in its own defence.

The Minister cannot say that there is no potential problem; there clearly is if as they are likely to, the majority of non-nuclear states take the New Zealand line on the matter. The states that will be the most enthusiastic about the treaty and therefore the first to ratify it are liable to be those that take the most forward position on these issues. Their interpretation will be in line with that of New Zealand—I use nuclear weapons merely as one example—rather than that of France.

By putting a declaration into the Bill, we set an example to all the other states, not least those of the Commonwealth, that are waiting for us to pass our Bill so that they can see what it looks like before they pass a copy—in a sense—through their own legislatures as part of their process of ratification. The message that we send out is therefore immensely important. If we make it clear that we, as a nation that has a similar role to France in terms of international commitments to peacekeeping and the United Nations, will stand by France and make a similar declaration, such as appears in new clause 1, we could expect other nations that are looking to the United Kingdom Parliament to help them decide which direction to take in introducing treaty ratification legislation to make a similar declaration.

Even if new clause 1 is added the Bill, neither we nor the Minister can protect our armed forces for all time and ensure that they will face British, rather than international, justice for the crimes that they commit. We all hope that there will be no circumstances in which British soldiers, their officers or their civilian political commanders will be brought to justice by the ICC. However, the number of engagements in which we have taken part in the past serves to indicate how many we will undertake in future: it would be as well for members of the Committee to remember that there has been only one year since 1945 in which a British soldier has not died on active service somewhere around the world.

In terms of the part played by our armed forces, we are a very committed country. We cannot pretend that our role is always uncontroversial and has the wide support of the international community. We have only to look at what is happening in the skies over Iraq to appreciate the controversy that can flow from military operations that we regard as wholly proper that are aimed against one of the most despicable dictators that the middle east has thrown up in the 20th century. We must remember that many of our partners, not least the French, think that the actions of the United States and the United Kingdom are nugatory in their own terms, and that our operations do not command any degree of active support in the middle east itself.

I urge the Minister to consider the new clauses carefully. New clause 1 would send a signal to our armed forces that we are going to see how the ICC works before we put them within its jurisdiction in so far as war crimes are concerned. As the Minister rightly pointed out, that does not mean that they escape justice; they remain within the remit of English law in respect of being brought to justice for such crimes. New clause 1 would deal with the problems of interpretation to which my hon. and learned Friend the Member for Harborough referred in connection with article 8.2(b)(xxiii), and with the points made by the French in connection with article 8.2(b)(ii) and (v). They deal with collateral damage and the actions of armed forces throughout the 55 years since the end of the second world war.

In conclusion, I return to the question of Israel. In the second half of the 20th century, Israel has probably had to fight more desperately for its survival than most other states. Since 1945, we have enjoyed the privilege of not being in that position. Almost everyone in this Room was not even alive at the time of the second world war, and it is all too easy for us to believe that we will never again have to fight desperately for our nation's survival, or in alliance with others for the survival of our way of life. Until 1986, I served in the British Army of the Rhine, preparing against the Soviet hordes' piling over the inner German border. It became fairly clear that, should such an invasion take place, one's life expectancy as an Army reconnaissance officer would not be especially lengthy. We carried out our duties for real, and trained to deploy in the full expectation of such an invasion. In other words, it is not that long ago that we, in alliance with other nations, were preparing to fight for our very survival.

Because we have always been part of a coalition with overwhelming force at its disposal, and because we have almost always been on the victorious side, commanders have had time to consult a lawyer at their shoulder to discover whether their proposed actions comply with international law. That is true to an increasing degree—indeed, it is true of all the conflicts in which we have participated. Perhaps the best example was the operations over Kosovo: the target lists for the United States air force were pored over at a level as high as the White House, and whether a particular target could be engaged was, no doubt, the subject of legal advice, so it is no surprise that it took what seemed an inordinately long time for the air force to respond to target information.

However, if we become involved in a fight for our survival, we cannot afford to require our military commanders to consult the lawyers to discover whether their plans are legal. The more desperate the conflict and the less control we have over events, the rougher and readier judgments become. If we believe that all conflicts will be like the Gulf in 1990-91 or Kosovo in 1999, we are fooling ourselves. A time may come when we confront an adversary who is our equal. We may also encounter adversaries who use asymmetric threats and fail to respect the laws of war and the rulings of the International Criminal Court.

In the end, we simply do not know how we will deal with such challenges. However, we do know that the United Kingdom is a civilised member of the world community with a proud record of establishing human rights and standing firm for freedom with the blood of its armed forces and its treasure—goodness knows how much treasure we have spent during the 20th century in the cause of freedom. If we—our Parliament and country; this cradle of democracy—end up on the back end of an ICC that is in the hands of people who have a political agenda as feared by the state of Israel, we will not have done our nation any service.

I hope that the Minister will find a way of accepting new clause 1, which is important to our armed forces and will send a signal that Britain's attitude towards its armed forces is consistent with that of France. The Minister said that he would look to use words such as those suggested in new clause 7 to make a declaration that we will not accept the court becoming the political tool of those whose agenda is different from ours.

5.45 pm

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