International Criminal Court Bill [Lords]

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Mr. Garnier: I did not know that the hon. Gentleman was performing; he has yet to get on to the Richter scale in this Committee.

We saw a wonderful example of how the Executive completely overrides Parliament during yesterday's Prime Minister's Question Time.

The Chairman: Order. I am having difficulty working out how the hon. Member's comments relate to new clause 4.

Mr. Garnier: Let me ease your difficulty, Mr. Cook. You might remember that, on Tuesday, I discussed the opinions of the French and New Zealand Governments on whether the use of nuclear weapons came under the definition of war crimes in article 8 of the statute. It seems highly relevant—to Conservative Members, at least—that the United Kingdom is one of the few nuclear powers and that the decision to launch a nuclear attack in response to such an attack on us or for another legitimate strategic military reason lies with only one person: the Prime Minister. Entirely coincidentally, a question arose yesterday as regards the announcement by the President of the United States about the nuclear shield.

The Chairman: Order. I understand all that—I lived through it. However, I am still puzzled as to its relevance to the issue of reports and consultation between the ICC and the Secretary of State.

Mr. Garnier: If the Prime Minister decides to send off nuclear missiles, and civilians are killed as a consequence, he could, if one agrees with the New Zealand Government, be guilty of a war crime. However, if one agrees with the French Government, he could not be. I am using shorthand, but if the New Zealand argument wins the day, the ICC might require the Prime Minister to respond to the warrant. New clause 4 refers—surprise, surprise—to the delivery of warrants, although not to the delivery of nuclear weapons. However, in the context of the Bill and the ICC's jurisdiction, one cannot dissociate oneself from the two.

It is interesting that even in huge strategic military questions—

Mr. Mike Gapes (Ilford, South): Will the hon. and learned Gentleman give way?

Mr. Garnier: In a moment; I am having fun. Even when dealing with matters of huge importance, such as the use of nuclear weapons, one cannot wholly forget that the ICC will have to have procedures that bite on the potential defendant if it is to work.

The treaty is unamendable, but the Bill is not. The Bill is the only means that we have to inform the world of our concerns about the way in which the treaty exposes the Prime Minister, who has the nuclear key.

A moment ago, I mentioned Mr. Alastair Campbell—by inference, if not by name—because he seemed to take a different and more powerful view of protection against nuclear weapons than the Prime Minister.

Mr. Gapes: The circumstances that the hon. and learned Gentleman envisages are ridiculously remote. Does he accept that any decision to fire nuclear missiles from this country would involve retaliation, and that our NATO allies would have a view about that? Furthermore, if there were any retaliation, the last thing that anyone would be worried about would be serving warrants. Presumably they would be more worried about radiation fallout and millions of dead people.

Mr. Garnier: That is an interesting point. If the last thing that we should be thinking about is serving warrants, what is the point of the Bill and the statute? That comes back to very point that I made on Tuesday, although the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was exercising his customary absence, no doubt for important reasons. He did not seem to take my point. The statute works only with the exercise of military power behind it. [Interruption.] You know, Mr. Cook, from my performance this morning, that none of this has been rehearsed.

The Chairman: I could be persuaded otherwise.

Mr. Garnier: I do not want to engage in side discussions outside the terms of the Bill, but as I understand it, the only choreography that has been engaged in between political parties with respect to the constitution of the United Kingdom—and certainly with reference to the British mainland—has been between the Liberal Democrat and Labour parties. The Conservative party has maintained a healthy distance from both. [Interruption.] I am being diverted. I promised the Committee a brief discussion on the new clause. The Minister is well aware of the points raised in the other place in support of the new clause. I enjoyed my brief discussions with the hon. Member for Ilford, South (Mr. Gapes) and others, including you, Mr. Cook, although, now that I have done that, my reputation is in danger of becoming something other than I should wish.

10.30 am

Mr. Battle: I thank the hon. and learned Member for Harborough—

The Chairman: Order.

Mr. Battle: I apologise, Mr. Cook. I shall try to remember to face you and not the Back Benches.

The hon. and learned Gentleman moved the amendment with refreshing and characteristic frankness, but buried in his wide-ranging comments was a theme that he has consistently presented to the Committee and that goes wider than the Bill: the relationship between the powers of Government and Parliament. He has also consistently raised the way in which we sign up to statutes internationally, procedures by which we might change them before they come before us, and our relationship to them. Those are largely legitimate questions that might be raised elsewhere in the House in the future.

The new clause would require the Secretary of State, following consultation with the ICC, formally to lay before the House of Commons a report on a proposed or actual warrant. As the hon. and learned Gentleman acknowledged, Lord Howell of Guildford introduced an identical provision in Committee in the other place. The premise on which the new clause appears to founded is the Secretary of State's refusing a request for surrender. It is important to mention that, because I cannot emphasise enough the question of complementarity: the court comes into play only if this country refuses—if it is unable or unwilling—to take action.

I assure the Committee that, when appropriate, matters relating to requests from the ICC will be brought to the attention of Parliament in the usual way, without the need for a report to be formally laid before Parliament. That has been the practice on many occasions in the past. It is what happened in the case of General Pinochet: the reasons for the decisions of my right hon. Friend the Home Secretary were brought to the attention of the House and the usual procedures were used; private notice questions and other mechanisms were employed. The procedures under the new clause for laying an additional report before Parliament could undermine the effectiveness of a proposed ICC warrant.

I shall give an example from a real case involving a warrant issued by the international criminal tribunal for Rwanda for the arrest of a Rwandan person accused of genocide. We were aware for some months before the warrant was issued that the person was likely to be indicted. Had we been following the procedures proposed in new clause 4, we should have had to lay a report before the Select Committee on Foreign Affairs giving details of the proposed warrant. That report would, no doubt, have excited press interest and examination, greatly increasing the likelihood of the suspect absconding. If the procedure were to become as formalised as is specified in the amendment, it could be self-defeating.

In addition, we should remember the principle of complementarity, which will ensure that the ICC will be able to assume jurisdiction only when a state is found to be genuinely unwilling or unable to conduct an investigation. We do not anticipate being in that position. The Rome statute was the result of delicate negotiation. A balance had to be achieved that would protect our service personnel, but allow the ICC to retain its teeth in relation to states that might try to carry out domestic investigations in bad faith in order to protect their own personnel. The balance is right. We do not need to introduce the new clause and to do so might undermine the procedures that we want to see followed.

Mr. Garnier: I am crushed. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn

New Clause 5

Ratification: reservations and declarations

    `The Secretary of State shall not ratify the ICC Statute unless—

    (a) a report is laid before Parliament, setting out—

    (i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,

    (ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and

    (iii) that report is approved by each House of Parliament.'.—[Mrs. Gillan.]

Brought up, and read the First time.

Motion made, and Question put, That the clause be read a Second time:—

The Committee divided: Ayes 5, Noes 12.

Division No. 4]

Blunt, Mr. Crispin
Day, Mr. Stephen
Garnier, Mr. Edward
Gillan, Mrs. Cheryl
Howarth, Mr. Gerald

Battle, Mr. John
Browne, Mr. Desmond
Cranston, Mr. Ross
Ellman, Mrs. Louise
Fitzsimons, Lorna
Gapes, Mr. Mike
King, Ms Oona
Lammy, Mr. David
Maclennan, Mr. Robert
McNulty, Mr. Tony
Naysmith, Dr. Doug
Worthington, Mr. Tony

Question accordingly negatived.

New Clause 8

Amendments of the ICC Statute

    `If an amendment is adopted to the ICC Statute under Article 121, within six months of the meeting of the Assembly of States Parties which adopts such amendment Her Majesty's Government shall obtain approval for such amendment by positive resolution of both Houses of Parliament, failing such approval being given six months after the meeting of the Assembly of States Parties Her Majesty's Government will give notice for withdrawal under Article 127.'.—[Mr. Blunt.]

Brought up, and read the First time.

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