International Criminal Court Bill

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Mr. Hendrick: In the light of the outcome of the example that he gave and assuming an Allied victory, does the hon. Gentleman agree that Adolf Hitler—had he not shot himself in his bunker in Berlin—would have been more likely than Winston Churchill to have been brought before an ICC?

Mr. Howarth: The hon. Gentleman makes a fair point. If we were to stick rigidly to it, I envisage that there would be arguments on both sides. The atrocities that Hitler committed were definitely atrocities, and what was done in the name of our forebears in the second world war was done to destroy Adolf Hitler's tyrannical regime, but some would argue that the bombing of Hiroshima or Nagasaki was unnecessary and that those responsible should be called to account. It was said earlier that through the ICC we are trying to avoid tribunals of the victorious or victor's justice. That is my reservation.

Mr. Mike Gapes (Ilford, South): Does the hon. Gentleman accept that there are already international laws against the indiscriminate bombing of civilians? Does he also accept that the current Government and previous Conservative Governments signed up to international agreements and treaties such as the nuclear non-proliferation treaty, the review conference on the nuclear non-proliferation treaty and various other international agreements that limit our actions? His remarks about nuclear weapons leave me uncertain about whether he advocates a first-strike policy in all circumstances, which, in many senses, would be an international crime. He is arguing against the imposition of any constraints or international restrictions on the Government?

Mr. Howarth: The hon. Gentleman and his hon. Friend the Member for Kilmarnock and Loudoun are missing the point. I have not suggested that; I have posited a scenario. The hon. Gentleman asks whether I accept that the use of first-strike nuclear weapons would be a crime against humanity. If Hiroshima and Nagasaki were not first strike, what were they? I would not rule out first-strike nuclear weapons: they were the basis of our nuclear deterrent which ended the cold war, destroyed the iron curtain and liberated the peoples of eastern Europe from lengthy subjection to communism. Many Government Members would disagree with our actions in government during those glorious 18 years, but, through the work of my right hon. and noble Friend Baroness Thatcher, for whom I had the privilege of working, we brought about wonderful changes and ended the cold war.

Mr. Battle: Tell us about the poll tax.

Mr. Howarth: We never contemplated the use of nuclear weapons as a first strike against the poll tax protestors, but the right hon. and noble Baroness Thatcher might have it in mind as a possibility, if all else failed.

I shall conclude my argument with the remarks of the noble Lord Shore—a distinguished member of the Labour party who happens to be sound on certain issues. I quoted him on Tuesday, and shall do so again now. He said:

    ``If I was to take seriously all those new listed war crimes in article 8.2(b) onwards—all of them, not just some of them—I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression.''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 359.]

The Minister should answer that point. I would be grateful if he did so.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): Two important points occur to me as counters to the arguments deployed the hon. Member for Aldershot (Mr. Howarth).

First, the hon. Gentleman introduced several hypotheses involving military circumstances in which this country might need to act as a result of decisions taken by politicians in war, describing that as ``necessary''. He advanced that proposition as though there were no background to constrain the decisions of democracy. The reality is that we have long subscribed to the international laws and customs of war and we recognise their existence in tribunals other than the ICC. The schedule from which the hon. Gentleman wants to delete certain provisions that codify existing laws is nothing new: it restates international law as it is widely understood and has been accepted by post-war Governments. By deleting such provisions, he would revoke the existing international law of war.

Secondly, it is strange that the hon. Gentleman takes exception to such matters being considered by the ICC, which is constituted by many member nations. It was agreed by the party of which the hon. Gentleman is a member that, in respect of violations of the laws of war, especially under the Geneva convention of 1949 ratified by a Conservative Government in 1958, protocol 1 of which was ratified in 1998, our troops should be subjected not to an international court, but to the court of any state party to the Geneva convention. If it is acceptable to allow any state party to the Geneva convention to have jurisdiction over our troops when they violate the laws of war, it is a lesser step to allow an international court, given all the international checks that exist over it, to adjudicate in similar cases.

The hon. Gentleman is inflating the risk. I am not saying that his proposal is completely negligible, but he has got things out of proportion. The trail has already been blazed. Given the risk of a miscarriage of justice being perpetrated against British troops, many steps have been taken that are more significant than those that we are contemplating under the Bill,

The Solicitor-General (Mr. Ross Cranston): I refer first to the simple but critical point spotted by my hon. Friend the Member for Kilmarnock and Loudoun. We want to ensure that United Kingdom courts can always investigate allegations against a British national so that the ICC cannot have jurisdiction. If we accept the amendment and delete certain offences, the result would be that domestic courts could not prosecute cases; thus, the cases would fall within the ambit of article 17 of the treaty in that we would be ``unwilling or unable'' to deal with them, with the result that the ICC would have jurisdiction.

3.30 pm

The hon. Member for Aldershot referred to the situation in Sierra Leone. We believe that the crimes set out in the schedule are justified in terms not only of a dry, legal analysis but of the horrors that are still occurring throughout the world. It is a moral argument. As the hon. Gentleman acknowledged, we are discussing serious and barbaric crimes. I regard the amendments as probing, not substantive, and the best way in which to deal with them is to assure the Committee first about the offences. Before doing that, I direct its attention to article 22.2 of the treaty, which states clearly:

    ``In case of ambiguity, the definition shall be interpreted in favour of the person being investigated''.

In addition, article 22 of the Rome statute states that the provisions are to be interpreted strictly—a principle of strict instruction. That goes straight to the point of creativity about which the hon. Gentleman was concerned.

The ``Elements of Crime'' prepared by the preparatory commission set out clearly the elements necessary if someone were to be convicted. I say as an aside that the United States was content with the outcome of the preparatory commission and agreed the elements. I suspect that it saw them as one way of confining creativity by the court. Let us consider the crime under paragraph 2(b)(ii) of schedule 8, which corresponds with article 51 of the first Geneva protocol. To prove the crime, the prosecutor must first demonstrate that the perpetrator was

    ``intentionally directing attacks against civilian objects''

or attacking individual civilians who were not taking direct part in the hostilities. The first element is the intention, while the second is the civilian population or the individual civilian's aspect. The third element is that the perpetrator intended those civilians to be the object of an attack. The elements of the crime are set out clearly and the preparatory commission has done further work to try to denfine them.

Mr. Gerald Howarth: Is the Solicitor-General saying that the type of area bombing that was carried out during the second world war on Dresden, Hamburg and other German cities could never happen again, although not necessarily as a result of the Bill? I am interested to know the answer.

The Solicitor-General: Let me deal with the three examples given by the hon. Gentleman. The sinking of the Belgrano would not fall within the provisions that he seeks to delete from the Bill, because it was a military object.

The attack on the television station in Belgrade would not fall within paragraph 2(b)(iv) of schedule 8. The expression

    ``clearly excessive in relation to the...military advantage''

would not catch that attack because the television station was pumping out propaganda for the Serbian regime. As I said to the Committee the other day, the prosecutor for the international criminal tribunal for the former Yugoslavia has decided not to take the process forward in relation to that attack.

In relation to the second world war Bomber Command, it was partly as a result of the range of events that took place in the second world war that we have the Geneva protocols. The approach taken by all major countries was that war must be more civilised, and the hon. Gentleman's party, when in power in 1957 and 1995, incorporated those protocols into domestic law. I commend it for that and the Labour party at the time supported it. Civilised countries took the view that the provisions were necessary so that, should war occur—it is unfortunately inevitable in our world—it would be conducted in a civilised way.

Mr. Browne: Before my hon. and learned Friend moves on from the importance of the provisions in terms of international law, would he comment on an aspect of the argument that I have not yet heard articulated in the Committee? The provisions are in international law, and whether they are incorporated into our domestic law or are in the jurisdiction of the ICC does not matter. The provisions serve not only to generate parameters for the behaviour of our armed forces, but to provide a level of protection for our armed forces and our civilian population. If Parliament undermines the provisions and effectively decriminalises the acts, we reduce the level of protection for our armed forces in combat and that our civilian population has in a time of conflict.

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