International Criminal Court Bill

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Mr. David Lammy (Tottenham): I want to find out exactly where the hon. Gentleman is coming from. Simplistically speaking, there are three positions on universal jurisdiction, which he has confused. The honourable position on universal jurisdiction appeals to the common good regarding crimes against humanity. It says, in effect, that someone in England should be tried by us, regardless of whether they are a national. I suspect that the hon. Gentleman has no sympathy with that. The second position, which comes from the right, is a superior position that is consistent with much of what we have heard from Conservative Members.

Mr. Blunt: On a point of order, Mr. Cook. The hon. Gentleman's opening remarks suggested that he does not believe what I have been saying, and I ask him to withdraw them.

The Chairman: I am somewhat puzzled by that point of order. Will Mr. Lammy clarify what he said that may have caused offence? I have been listening intently, but I shall listen even more intently this time.

Mr. Lammy: I suggested confusion, not some ulterior motive.

The second, superior, position originates from the imperial viewpoint that this country is best. The right position is an internationalist one based on the concept that such people should be tried in the international arena for all the world to see. I believe that the hon. Gentleman misses that point.

Mr. Blunt: I hope that my point of order was mistaken, but I thought that the hon. Gentleman's first point implied that I do not believe the arguments that I am adducing in support of universal jurisdiction. I am sure that on reflection he would not wish to suggest that I would do anything other than believe that the amendments should be passed and that there should be universal jurisdiction in respect of these crimes.

Mr. Browne: I do not want an argumentative debate with the hon. Gentleman, but I want to understand exactly what he is arguing for. He seems to be arguing for universal jurisdiction in respect of these offences, no matter where the alleged perpetrator is. There would be no qualification by residence or presence in the United Kingdom. Regardless of where the person concerned lived in the world, we would have jurisdiction. Is that the hon. Gentleman's position?

Mr. Blunt: That is my position, and it is the effect of my amendment. If the hon. Gentleman thinks that that is something new, he should consult section 134 of the Criminal Justice Act 1988, on torture, which states:

    ``A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.''

The hon. Gentleman must therefore understand that the principle of universal jurisdiction has already been conceded. If we do not accept it, we will be in the absurd position of being able to claim jurisdiction over someone guilty of torture, but not jurisdiction over someone guilty of murder.

If General Pinochet had fallen into our hands in a manner that was outside the Bill's definition but within the remit of British justice, we could have tried him for torture of his alleged victims. However, if he had murdered rather than tortured them—if he had put them to sleep as one puts to sleep a dog at the end of its life—we would have been unable to try him. That is manifestly absurd. Torture is but a tiny part of the crimes of which people are guilty under articles 5 to 8. Do we not want consistency in our legislation?

Mr. Hendrick: I entirely agree with the hon. Gentleman's analysis, but not necessarily with his conclusions. If he and his party have such concern for universal jurisdiction, why in 18 years of Conservative Government did they not bring to justice any of those who committed torture in, say, China?

Mr. Blunt: I am puzzled by the hon. Gentleman's intervention. It was his Government who entertained President Jiang Zemin so royally, and who suppressed demonstrators on the streets of London, Cambridge and elsewhere. We should take no lessons from the hon. Gentleman and his party, but let us get off that disagreeable note.

Under universal jurisdiction, we will be able to claim the right to protect British citizens who are victims of such crimes, wherever they are in the world. We do not want to limit such jurisdiction to presence in the United Kingdom. That said, I shall support the amendments of the right hon. Member for Caithness, Sutherland and Easter Ross if mine are not accepted.

We do not want to suffer the difficulties that Michael Birnbaum and Peter Carter have described. Let us consider the example of about 2,000 mercenaries who participate in a genocidal attack in the Congo. Their commanders are a Canadian, a Senegalese and a South African. Three of the mercenaries are British citizens, and one is an Australian who has a house in London, in which he lives for two months of the year. After the massacre, the Canadian buys a house in Manchester, in which he lives for seven weeks prior to his arrest. Under the clause as drafted, only the three British soldiers could be prosecuted. If the amendment were accepted, the Canadian and the Australian could also be prosecuted, assuming that residence could be established.

Mr. Battle: Will the hon. Gentleman give way?

Mr. Blunt: In a moment.

Whatever the merits of the example, the issue is that anyone else who participated in the massacre could visit the United Kingdom with impunity, provided that he was careful not stay long enough to qualify as a resident.

Mr. Battle: The hon. Gentleman has given the impression that such a person would not be prosecuted, but the reality is that, under the Bill and the statute, he would be referred back to the ICC. Do not forget that even for British citizens who are challenged under such laws, there is a dialogue with the ICC. A person would go before the ICC and be tried there; they would not get off scot-free, which is the impression that the hon. Gentleman leaves lingering.

4.15 pm

Mr. Blunt: The Minister again makes the assumption that he has made throughout the Committee's proceedings: that the ICC will work precisely as he expects it to. That is not an assumption on which he can rely. If we want to bring British perpetrators of these crimes to justice, why should we limit our jurisdiction and ability to do so? By passing the Bill in an unamended form, that is what he invites us to do. He will have received representations from Amnesty International, the Medical Foundation for the Care of Victims of Torture and others, and will know that they are dissatisfied that we are not to sign up to universal jurisdiction. The purpose of universal jurisdiction for the United Kingdom is the purpose of the court itself. It is to ensure that people who are guilty of these crimes have even fewer places to hide and cannot hide, in any way, from British justice, which is—as the Minister knows—complementary to the ICC. If the ICC cannot bring an individual to justice, for whatever reason, we should be able to do so.

I am not advancing a unique position, but one that has been taken by the Government of New Zealand, and other Governments to whom I referred earlier. As has been acknowledged, we must consider that what we do in Parliament will be watched extremely carefully by other countries. If we include universal jurisdiction in the legislation, that will introduce the statute and bring about its ratification, our example will be followed by dozens of other countries and that will ensure that those guilty of crimes are much less likely to escape justice. That is what we want to achieve, so the amendments should be accepted.

Mr. Maclennan: I listened with great interest to the hon. Gentleman and I look forward to hearing the arguments deployed by the Minister in his reply. Although the jurisdiction of the ICC and our own jurisdiction were extensively debated in another place, the underlying rationale for extending the jurisdiction, in the way that my amendments try to do, may not have been adequately considered. It was widely welcomed in another place, and outside, that the Government abandoned their original proposals for jurisdiction in the British courts. It will be remembered that when the Bill was originally published, it was limited to ICC core crimes and to where they had been committed in England and Wales, and outside of the United Kingdom by a United Kingdom national, or by someone subject to United Kingdom service jurisdiction. That aroused hostility, of which the Government will be aware. Non-governmental organisations—some of which have been referred to by the hon. Member for Reigate—and the Bar Council, the Law Society and many other bodies expressed genuine concern that the original Bill limited the application of domestic offences in such a way.

The Government amendments have gone some way to address and meet some of the problems that have been highlighted. It is true that Government amendments have gone some way to address and meet some of the problems that have been highlighted. The amended Bill would allow our courts to prosecute non-nationals in respect of ICC crimes when the individual concerned subsequently becomes resident in the United Kingdom and is resident at the time the proceedings are brought, and when the acts involved would have constituted an offence if they had been committed in the part of the United Kingdom in which the individual is resident. However, the amendments that have been incorporated into the Bill do not go far enough. I want to spend a little time on the problems of the test of residency before I address the rationale for the amendments, which I think that the Minister has been trying to raise in interventions.

In another place, Baroness Scotland of Asthal said that the Government intended to adopt a residence-based test to match the definition used in the War Crimes Act 1991 and to afford flexibility to the test. It must be remembered that the 1991 Act was adopted in a very different situation from that in relation to the Bill. Incidentally, the residency test was also imported into the Sex Offenders Act 1997—the ``sex tourism'' legislation—which is somewhat similarly constructed. In the case of the 1991 Act, it is true that the basis for jurisdiction is residence. However, that is beside the point, for two reasons. First, the Act was, of necessity, retrospective, whereas the Bill, when enacted, will apply only to offences after it comes into force. Secondly, the purpose of the Act was to prosecute Nazi war criminals, who, even if they had not obtained United Kingdom citizenship, had made a permanent home here.

The Bill is intended to create a new international order for the prosecution of international crimes. The cornerstone of that scheme is the principle that was referred to—complementarity—and the presumption, I believe, that the state retains primary responsibility for the prosecution of ICC crimes. The preamble of the statute recalls that

    ``it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes''.

With respect, that is the answer to those who have been questioning the rationale for the amendment—it is to give effect to that purpose of the statute.

We must not drag our feet in accepting our responsibility to prosecute those responsible for the most heinous international crimes. That is not a partisan point. There is no question of moral superiority being asserted by me or my party, or by the hon. Member for Reigate. Those points have been made in another place by members of the Labour party, notably Lord Archer of Sandwell, who said:

    ``This is an opportunity to offer a lead to other countries in an exciting new, international venture...We should not sidle towards the matter at the edge of the crowd; we ought to be looking to give a lead here.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 74.]

Nor would we be alone if the Government were to accept the amendments that I have tabled and incorporate them into the Bill. Several other countries with similar legal systems and similar histories have accepted universal jurisdiction on a wider basis than residence. New Zealand, Belgium and Canada have already so legislated, and Germany and South Africa have expressed an intention to follow their example. The Belgian statute, which is currently subject to a challenge before the International Court of Justice and the New Zealand International Crimes and ICC Act 2000, both adopt universal jurisdiction without qualification. We would not be out of line therefore in following the route that I am recommending.

 
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