|International Criminal Court Bill
Mr. Lammy: Does the right hon. Gentleman accept that internationalism can be based on the nation state partaking internationally as well as on the global state acting internationally?
Mr. Maclennan: I take the hon. Gentleman's point. I certainly aspire to the sort of internationalism to which he is attaching his argument. It is undoubtedly desirable that international institutions should co-operate effectively. However, under the preamble to the statute, the parties to the treaty already recognised that their primary concern was the effective implementation of the rules of law and war. In making the nation states primarily responsible for such implementation, they were acknowledging how far we are from the sort of international order to which the hon. Gentleman and I aspire. It was a practical consideration in the minds of the drafters of the treaty rather than an ideological one based on old habits of colonial thinking.
Mr. Browne: The right hon. Gentleman must accept that the preamble to the statute is capable of another interpretation, which is that the duty of each state is to exercise its existing criminal jurisdiction over those responsible for international crime. The preamble can be used to encourage countries to take universal jurisdiction. Equally, it could be understood to mean that there is a recognition that states should exercise the jurisdiction that they have over international crimes. I am genuinely interested to know from the right hon. Gentleman whether, during the discussions on the Rome statute, the issue about the state parties requiring each other to take universal jurisdiction was discussed? It does not figure in the articles of the statute, but that matter may have been debated.
Mr. Maclennan: I believe that such a matters was discussed. It is certainly not a requirement of the statute because it was difficult to obtain from the signatories universal acceptance of that principle. It is right to say that the preamble is not conclusive of the issue, but it leans heavily in the direction of recognising that, if that system of law is to work, full participation of the member states is an important part in achieving its efficacy. Different countries have interpreted that responsibility in different ways. I am not saying that there is a mandatory requirement to do so, but that is the thrust of the statute.
Mr. Hendrick: Is the right hon. Gentleman suggesting that not only the United Kingdom, but all other signatories to the ratification should take on universal jurisdiction? That would negate the need for the ICC because every state would try the person itself. If that were the case and such people were tried within the state concerned, is he not worried that there would be huge inconsistencies among all the signatory states in the level of justice and the punishment that criminals would receive?
Mr. Maclennan: I must answer that in the negative. It should not be part of our purpose to determine how other countries conform with the statute. In debating these matters, I focus on what I regard as our obligationsthe best way for us to seek to extend the rule of law.
The hon. Member for Preston will no doubt wish to develop his own arguments in the course of the debate, but he made an important point. On the diversity of interpretation or performance, if he was arguing that if every country pursued these crimes in their own courts there would be no need for the ICC, I do not agree. The ICC will deal with the circumstances in which countries are unable, for one reason or another, to carry out the law, perhaps because the Government are not in controlas in Bosnia. It is highly desirable that we should seek to use the possibilities of the Bill to reinforce the effectiveness of what has been agreed in the statute.
I will return to the issue of the rationale before I conclude, but I shall now deal with those points that were raised as difficulties to accepting that presence should be the test rather than residence. My party and I have based our alternative draft on the Canadian example, that provides for jurisdiction in which a non-national suspected of crimes committed abroad is present in Canada. Many other countries' implementation Bills will probably follow the Canadian example, including South Africa and the Federal Republic of Germany.
In the other place, Baroness Scotland of Asthal noted that it was the Government's intention to provide that any individual who chooses to make the United Kingdom his home will, from now on, be liable in the United Kingdom for any actions committed overseas before he arrived that were crimes under the Bill. That is a welcome advance. The problem of the residency test is that it creates many legal difficulties. Lord Onslow was supported by many Members of the other place when he pointed out how complicated that would be. The term ``residence'' is complex. ``Halsbury's Laws of England'' states:
``One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident. It is right that the decision on whether someone is resident here should be made by a competent court with the benefit of all the evidence in a particular case.''[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 85.]
The Government indicated in another place that the flexibility provided by the legally uncertain definition would increase the deterrent quality of the provision. If a person suspected of ICC crimes cannot know definitively that he will not be tried if he comes to the United Kingdom, he will not come. However, if other states follow the Canadian example, or even adopt the stricter New Zealand approach, we may find that uncertainty of prosecution in this country makes coming to the United Kingdom the best available option. If the criminal courts adopted the most narrow available formulation, the deterrent effect of a flexible residence test would be significantly reduced. I will not labour these points because our time is limited, but it is possible to sustain my arguments using the jurisprudence of the courts. For that reason, the residency test is not satisfactory, although it marks a step forward from the original Bill.
On the issue of the rationalea point made by the hon. Member for Reigate, on whom the Minister intervenedit might be helpful if I quoted from a letter that I received from Professor Adam Roberts, the Montague Burton professor of international relations at Oxford. He noted that there had been a certain lack of discussion in another place and quoted from an article in The Guardian that he had written:
I do not intend to press the matter to a Division. If the amendment were carried, there would be unfortunate procedural consequences, but regardless of the prospects of that, one must speak in the way one would wish. In the light of the definitions referring to residency, will the Solicitor-General confirm that nothing in the Bill will exclude or limit the United Kingdom's right under previous legislationfor example, the Geneva Conventions Act 1957to prosecute all those present, even temporarily, in the United Kingdom if they have committed serious violations of existing rules of international law that are applicable in armed conflict? If such an assurance can be given, some of the anxieties about the Bill's structure might be less acute.
I regret that we are deliberating on these matters at this stage in the life of this Parliament, for otherwise I think that we could have done better. I do not doubt the Government's good faith in acting as they have, but a little longer discussion might have led to somewhat different conclusions.
|©Parliamentary copyright 2001||Prepared 3 May 2001|