International Criminal Court (Scotland) Bill
The first item of business is the International Criminal Court (Scotland) Bill. The bill has not been officially referred to the committee for stage 1 consideration, but we expect the Parliamentary Bureau to do that this week. In expectation of that referral, we have invited Executive officials to give evidence on the general principles of the bill. Hugh Dignon will introduce the Executive team and has up to 15 minutes to make a presentation. We will then move on to questions from members.
Hugh Dignon (Scottish Executive Justice Department):
I have with me Dr Alastair Brown, who I believe will also give evidence to the committee on a different matter later this morning. Dr Brown has played a key role in the policy and drafting of the bill, although he is not a formal member of the bill team—he is with the Crown Office. Jan Marshall is a member of the bill team and is with the Office of the Solicitor to the Scottish Executive. Danny Jamieson works with the bill team on the administrative side. My statement will follow the structure that was suggested in a letter from the clerks. I will start by speaking in general terms about the policy behind the bill.
I will interrupt for a second to ask Hugh Dignon to speak a little louder so that everyone can hear. There is a problem with the acoustics in the chamber, which means that sound tends to drift.
The policy behind the International Criminal Court (Scotland) Bill is to make the changes to Scots law that are required to allow the UK to fulfil its obligations under the Rome statute. The International Criminal Court Bill, which is currently before the Westminster Parliament, will make parallel changes to the law of England and Wales.
The Rome statute is the international treaty that was signed on 17 July 1998 at Rome, where it was agreed to set up a permanent international criminal court. That agreement was the culmination of preparatory work that had been going on for about three years. The idea for a permanent ICC goes back as far as 1948, but it did not make progress because of cold war tensions. However, atrocities and conflicts throughout the 1980s and 1990s led to resumed support for the proposal.
The court will come into being 60 days after the 60th state has ratified the treaty. The treaty currently has 139 signatories, which represent more than two thirds of the international community, including all members of the European Union, all NATO members—except Turkey—and four of the five permanent members of the United Nations Security Council. At present, 29 states have ratified the treaty. The UK Government's aim, which is strongly supported by the Scottish Executive, is for the UK to be one of the first 60 states to ratify the treaty. The International Criminal Court (Scotland) Bill and its Westminster counterpart are necessary to allow ratification by the UK.
Both the UK bill and the Scottish bill include provisions that allow for the incorporation of ICC statute crimes into domestic law and co-operation with ICC investigations. They also allow for fines, forfeitures and reparations to be levied and for ICC prisoners, who are sentenced by the court in The Hague, to serve their sentences in the United Kingdom.
The key differences between the Scottish and Westminster bills is that the Westminster bill contains provisions that deal with the granting of privileges and immunities to the ICC and, perhaps more significantly, that deal with the arrest and surrender of individuals wanted by the ICC. The arguments for including those aspects in the Westminster bill were set out by the Deputy First Minister during the Sewel debate on the bill on 18 January. On the more significant arrest and surrender provisions, the Executive perceived that, although the provisions would have been in the competence of the Scottish Parliament, there was a risk that it could be argued that they were analogous to extradition, which is a reserved matter. That would have opened the possibility that an ICC fugitive could avoid being surrendered to the ICC if a court agreed with that view. The better course, therefore, to avoid any room for doubt, was to include all the arrest and surrender provisions in the UK bill.
Part 1 of the International Criminal Court (Scotland) Bill incorporates the offences in the ICC statute into Scots domestic law. The statute does not require that, but our doing so allows for the important principle of complementarity, which enables us to try in Scotland those individuals who commit ICC crimes within the jurisdiction of the bill rather than handing them over to the ICC to take proceedings. The Rome statute provides that the ICC will proceed in the case against an individual only if the relevant state party is genuinely "unable or unwilling" to proceed.
Many of those crimes, including murder or assault, are already offences under Scots law if committed in Scotland. However, the principle may not be applied with total certainty unless the relevant offences are made offences under Scots law in identical terms to those in the ICC statute. As well as creating the offences in Scots domestic law, the bill provides for prosecution of those offences in relevant circumstances where the act is committed outwith the UK, including where the offence is committed by a UK national.
Part 1 also covers repeals and amendments including the repeal of the Genocide Act 1969. That act is included because its jurisdiction is more limited than is the case under the new provisions. The Criminal Procedure (Scotland) Act 1995 is amended to ensure that the protection provided to victims is extended to those giving evidence in relation to offences under the bill.
Part 2 deals with assistance to the ICC. In order to ratify the treaty, states are required to be able to provide assistance to the ICC in its investigation and prosecution of ICC crimes. The general pattern in part 2 is to make such provision, as far as is possible, equivalent to provision in Scots domestic law. For instance, where a request from the ICC appears to require the exercise of a power of entry, search and seizure, that would be done in line with the court's powers to grant a warrant at common law. Another example is the definition of a sample, which is based on the Criminal Procedure (Scotland) Act 1995. Also in part 2, sections 19 and 20 provide for the investigation into and the freezing of the proceeds of ICC crime.
The detail of those measures is set out in schedules 5 and 6, which are based largely on current practice in the area—for example, under the Terrorism Act 2000 and the Criminal Justice (International Co-operation) Act 1990—and dovetail with the relevant provisions in legislation such as the Bankruptcy (Scotland) Act 1985.
Part 3 deals with the enforcement of sentences and orders. It will provide for the potential detention in Scotland of ICC prisoners who are sentenced at The Hague and for the enforcement of orders for fines, forfeitures and reparations that are issued by the ICC against the convicted person. Although the enforcement of orders is obligatory under the statute, the detention of prisoners is optional. However, if the ICC—which will not have prisons of its own—is to function effectively, it is important that state parties take on that responsibility.
It will be for the secretary of state to agree with the ICC whether a prisoner should come to the UK. If it is considered appropriate that the prisoner should serve a sentence in Scotland, the Scottish ministers will be consulted. Under the provisions in the UK bill, the Scottish ministers are entitled to refuse such a request. However, if they agree to it, the Scottish bill provides for the issuing of a warrant pursuant to such a detention. ICC prisoners who serve a sentence in Scotland will be treated in like fashion to domestic prisoners, except that domestic law on the determination of the length of sentence will not apply, as it is for the ICC to determine the period that a prisoner should serve.
Part 4, which has the heading "General", sweeps up and provides for miscellaneous administrative matters, such as the authentication of documentation that is issued by the ICC, and interprets certain terms that are used in the bill.
That is a brief overview of the bill. The clerk has suggested that we also refer to the extent to which there is discretion for signatory states to choose how they ratify the treaty. Article 120 of the Rome statute states:
"No reservations may be made to this statute."
However, under article 124, a state may upon ratification declare that
"for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8"—
which is war crimes—
"when a crime is alleged to have been committed by its nationals or on its territory."
A state can declare that reservation for a period of seven years.
Countries may also choose to make declarations at the point of ratification, but those will not alter the terms of the statute. It is the view of the UK Government that such declarations would have no legal effect. As I mentioned, there are areas in which we are doing more than is strictly required by the statute—for example, in the incorporation of ICC offences into domestic law. That is the extent to which states have discretion in the way in which they choose to ratify the treaty.
Thank you very much. I invite members to ask questions or to make comments.
I was curious about your comments on the jails and where people might serve their sentences, which the ICC will decide. Is it possible that people will avoid serving sentences in Scotland until we have cleaned up our jails and had them properly plumbed?
I am not aware of any problem with prisoners serving sentences in jails in Scotland as opposed to in any other country. As far as I am aware, as soon as the bill is passed and the UK ratifies the treaty, the UK will be as good or bad a place as anywhere for a prisoner to serve their sentence.
I will ask a couple of general questions. You state that 139 states have signed and 29 have ratified the treaty. Could you advise me on the distinction between signing and ratifying and on the time scale? I understand that, until 60 states have ratified the treaty, the ICC cannot be established. Why are we dealing with this now if it might be years ahead until the court is established?
I am not sure that this is a matter of years ahead. The ICC is working on the assumption that the 60 states will have ratified by about July 2002.
That is very helpful. How many judges will there be in this criminal court? I beg your pardon—I see that there will be 18 judges. Perhaps we have had this information in a briefing that I missed, but how will the judges be appointed and what system will operate for the duration of the appointments?
Dr Alastair Brown (Crown Office):
The judges are all to be full time. The Rome statute requires them to be chosen by election from among persons who possess the qualifications necessary for appointment to the highest judicial office in their home states. They are to be people who have established competence in criminal law and procedure or in relevant areas of international law. Fairly complicated rules for the election of the judges seek to maintain a balance between those two groups and require states in selecting judges to take into account the need for representation of the principal legal systems of the world—the different legal traditions—equitable geographical representation, a fair representation of female and male judges, and expertise on specific issues, such as violence against women and children. Those subject areas are specifically identified in the statute.
In negotiating the statute, the states put a lot of effort into ensuring that there would be good-quality judges; given the kind of offences with which the court will be dealing, judges will be required to demonstrate the expertise that we want. From what has gone on in the former Yugoslavia and Rwanda, we have, usefully but regrettably, a pretty good idea of what kind of things happen during the commission of such offences. The appointment is time-limited; I am told that the limit is nine years.
Obviously there will be regulations in due course—I do not know whether the committee will be involved in that—about issues such as the removal of judges, for insanity for instance. There must be some way of getting rid of a judge.
Article 41 of the Rome statute makes provision for the
"Excusing and disqualification of judges",
which is perhaps not quite as final as what Christine Grahame is contemplating, although I suppose an insane judge might be disqualified routinely.
Detailed draft rules of procedure and evidence have been prepared to supplement the Rome statute. Those have not yet been adopted, but they are in their final draft. They include material about the disqualification of a judge, requests for removal from office and removal from office. The short answer to your question is yes.
Scotland has a separate legal system—in particular, its criminal justice system is very distinct from the English criminal justice system. When recommendations are made on the appointment of judges, will the Scottish recommendations be distinct from the English ones or will a UK recommendation be put forward? A UK recommendation would not reflect the difference in the judicial systems that you said would be represented on the tribunal.
I have to disappoint you on that.
I thought that you would.
The court has only 18 judges. In the international law arena, the UK is a unitary state. Accordingly, the UK will have, I think—it will be a matter for the UK Government—only one nomination. That nominee could, of course, be a Scottish judge. We have experience of the UK judge in the Court of Justice of the European Communities being a Scottish judge—Judge Edward is there at the moment and there have been others in the past—and although the British judge at the European Court of Human Rights is English-qualified, Lord Reid from the High Court of Justiciary and Court of Session has sat as a temporary judge on occasion, when the usual British judge has not been able to take part.
We will have to rely on the general efforts to ensure fair representation of the different legal cultures in the world to ensure that Scotland is properly represented.
That is the point that I was making. Scotland has a distinctive tradition in its criminal system, which is divergent from the English system. My point was not a naked nationalistic point; it was about the Scottish legal system being represented. That concerns me. I accept that the judge could be English, Irish or whatever, but that would not reflect the seriously distinctive systems in Scotland and England.
Yes, that is undoubtedly right. If one were to analyse Scots law, particularly Scots criminal law, one could probably make a case for saying that it is—much as Lord Cooper put it in the 1950s—a blend of the continental civilian tradition, some aspects of the English legal tradition, and what Lord Cooper referred to as flashes of native genius. Whether our native genius will be properly represented I do not know, but we can at least expect the bits that come from the continental civilian tradition and from the Anglo-American tradition to be properly represented. Scots law, and particularly Scots criminal law, faces the same issue repeatedly in international forums. At least in the Rome statute there is a requirement for broad representation, so that dealings in the international criminal court will command widespread global support.
Nobody's system will be fully reflected. There are real tensions between the inquisitorial and the adversarial approaches, which are reflected in the Rome statute by the creation of a prosecutor's office, which is under far more judicial control than there would be in an adversarial system, and by the pursuit of an adversarial approach to trials. There are issues, but an effort has been made to deal with them.
Before we leave the topic of judges, I would like to exhaust the issue, because it is important. I have a few questions that lead on from Christine Grahame's questions. Do you have any idea how the figure of 18 judges with which to represent all the legal systems properly was arrived at?
It was a matter for negotiation among the 100 or so states that took part in the Rome conference. I do not know how they came to the figure of 18. They needed enough judges to have trial and appeal chambers and to take care of the possibility of certain judges being disqualified from particular cases for particular reasons. They had in mind experiences from the Yugoslav and Rwandan tribunals and came to a figure.
The judges will be independent; they will not represent the member states from which they come. Otherwise, more than 100 states in the world would feel disfranchised, because only 18 would have nationals as judges. However, there will be an effort to ensure that the 18 judges have knowledge and experience of the main legal traditions of the world. I think that Hugh Dignon has something useful to add.
It is important that we do not lose sight of the fact that, in almost all circumstances, we expect people who fall within the jurisdiction of the bill to be tried in Scotland under Scots law by Scots judges. The important point about complementarity is that by incorporating the ICC offences into domestic law, proceedings against a UK national or anyone else who is resident in Scotland who commits one of the crimes—such as war crimes or crimes against humanity—will usually be taken within Scotland and the person will be tried under Scots law by Scots judges. That is the course that we expect to be pursued.
That is useful. Is the situation similar to that regarding European Union law, in that Scottish courts are expected to be the point of first instance for European Union citizens? Is that the model?
It is important to point out that the Rome statute says that the ICC will take action only where a state party is "unwilling or unable genuinely" to take proceedings against a person. It is envisaged that the ICC will step in only where a country's legal establishment has broken down and is unable to take the necessary action against individuals. We expect that in almost every conceivable circumstance, a UK national or a resident of the UK will fall within the terms either of the International Criminal Court Bill at Westminster or, if they are resident in Scotland, of the International Criminal Court (Scotland) Bill.
That is helpful. Are there any other questions on judges?
My area of interest impacts on judges and the absolute necessity for their impartiality to be seen in an international context. Although we are talking about an international legal system, it will inevitably be crossed by the political requirements and parameters of the day.
I have two questions. First, has the timetable that you have given been updated since the advent of the new American presidency, given that both the majority in the Senate and the President have said that they are not minded to ratify the treaty? Secondly, there are to be only 18 judges. However, when the international criminal court will be needed most, as in Rwanda for example, there will be a heavy political perspective. In such instances, judges will have to be seen to be absolutely independent, which means independent of the great powers. Why, when the Rome statute was being compiled, did people not come down in favour of a greater balance of judges from smaller, unaligned countries, such as Scotland, with independent systems of jurisprudence and a history of administering justice fairly?
On the first point, I am not aware that the timetable has been affected in any way by what the US may or may not do in relation to the court. The issue is the first 60 states to ratify. Whether the US is one of those does not enter into the timetable. Of course, we are aware of the US Government's position. The UK Government's position is that it urges the Americans to ratify the treaty. However, I do not think that the establishment of the ICC will be held up if the Americans choose not to ratify the treaty immediately.
Dr Brown is probably better qualified to talk about the independence of judges than I am. The judges have not yet been chosen. Where they will come from remains to be seen and will be a matter for a vote among the state parties.
Articles 40 and 41 of the Rome statute spell out the independence of the judiciary. Article 40 states:
"The judges shall be independent"
and
"shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence."
Article 41 deals with disqualification and provides that:
"A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground."
Pervading the Rome statute is an appeal to international human rights treaties, in particular the International Covenant on Civil and Political Rights, which is the United Nations' equivalent to the European convention on human rights.
The independence of the judiciary is set out clearly. As in the Yugoslav and Rwandan tribunals, we should expect the ICC, in dealing with such questions, to look to the case law of, for example, the European Court of Human Rights, which makes it clear not only that judges must be independent, but that they must be seen to be independent.
What considerations will motivate states in deciding precisely which judges will be selected, we do not, of course, yet know. It is by no means inconceivable that judges will be appointed from small or non-aligned states. Indeed, it was an initiative by Trinidad and Tobago that set off the procedure for negotiating the Rome statute after a long history of negotiations being stalled—although I understand that Trinidad and Tobago, for other reasons, is not a signatory to the statute.
It is quite possible that small states will be represented. Small and developing states are represented on the judiciary of the Yugoslav tribunal and there is no reason to suppose that they will not be represented in the international criminal court. However, it would have been somewhat difficult to write into the statute the inclusion of a legal system—such as the Scottish system—that, in international law terms, was part of a larger unitary state's system. That was not done.
May I press you on that? There are not many states that are in the anomalous position of having a separate, internationally recognised legal system, as Scotland has, inside a unitary state, are there?
That is right. One could get into discussions about when a federal system that has different legal systems within the federal whole becomes analogous to our system. The obvious comparison is with Canada and the Quebec experience. You are right that there are not very many such states. However, the Rome statute is a treaty. As far as the international community is concerned, the treaty deals with states. On the international plain, the UK is a unitary state and the international community has to deal with the UK as a unit.
I will press you further on the matter. The treaty has not been ratified. Amendments are being suggested. One of the reasons why Clinton signed the treaty before he left office was to allow for amendments, so that it could be signed by the incoming United States Administration. We are still in the melting pot, are we not? The treaty is not set in stone.
With respect, I do not think that one can sensibly contemplate amendments to the Rome statute. One would have to reconvene the Rome conference and renegotiate the aspects of the Rome statute that one sought to amend.
I am fairly sure that there was some discussion of amending the Rome statute in the House of Lords during the Lords progress of the UK bill. The UK Government's position was that suggestions about amendments to the treaty were somewhat unrealistic. The American position has been much criticised by other states. It has been driven by considerations that the USA has had to determine for itself.
It is still possible to influence the content of the rules of procedure and evidence and of the elements of crimes, which are in final draft. However, to contemplate amending the treaty is not terribly realistic, simply because of the logistics: one would have to convene something like 120 states and get agreement. It took a long time to reach agreement on the Rome statute. The UK Government's position, as I understand it, is that the Rome statute is the treaty and that is all the treaty will be.
I have supplementary questions on something different—the impact of the bill, when it becomes an act, on existing Scots law, both statute and common. You mentioned some statutes on which there would be an impact—I managed to scribble down only a couple of them: the Criminal Procedure (Scotland) Act 1995 and the Bankruptcy (Scotland) Act 1985—which was interesting. What impact would there be on common law? I may be muddling my thinking. Are there any other statutes on which there will be an impact? We can ask the clerks to provide us with a list of any such statutes. I am interested in the impact of the bill on common law because most of the crimes in Scotland are common-law offences.
You also told us that most of the proceedings should take place in the native country—Scottish proceedings would take place under a Scottish judge, prosecution and so on. How does one address equality of standards in relation to trials, procedures and evidence if individual states take proceedings differently from how they might be taken if they went before the ICC? I do not understand that. I can understand that a case might go to the ICC for the convenience of witnesses, for example. There might be instances in which that would be more proper. I am just fishing here, really. I wonder about that conflict.
My first question is: how does the bill impact on common law as well as on statutes in Scotland? I am concerned that we take notice of things that the bill changes in Scots law. My second question is: how would the procedures that will be used in Scotland fit with proceedings elsewhere, whether in Trinidad and Tobago or wherever? How can one say that there is parity or any kind of level playing field?
I have to say that I am not an expert on common law in Scotland.
Neither am I.
After a quick word with Dr Brown and Jan Marshall, I can say that the answer is that we can see no real immediate impact on common law.
I mentioned some other statutes that the bill amends. Those are the Criminal Procedure (Scotland) Act 1995 and the Genocide Act 1969. The Genocide Act 1969 will be repealed because the jurisdiction under the bill if passed will be wider than that under the 1969 act. The Criminal Procedure (Scotland) Act 1995 will be amended so that the protection given to victims when they give evidence is extended to people who will be victims under the bill if passed. Those are the direct changes. I mentioned a couple of other statutes in my statement.
You mentioned the Bankruptcy (Scotland) Act 1985, which was interesting. It has to do with seizure.
In setting out how a court in Scotland will give effect to freezing orders for the proceeds of ICC crime, we need to be aware of existing statute in the area and to ensure that the provisions in the legislation dovetail with it. That accounts for the reference to the Bankruptcy (Scotland) Act 1985. We followed the model provided by the Terrorism Act 2000, which set out a way of freezing the proceeds of crime associated with terrorism. That accounts for my reference to that act.
On parity between different systems, I am not aware of any way in which one could compare what happens in one jurisdiction with what happens in another. We could start from the assumption that there is no question but that the Scottish legal system is considered to be among the best in the world and perfectly acceptable or that justice is correctly addressed in proceedings in the Scottish judicial system. That is the only basis on which we can answer that point.
What happens in other countries is a matter for the ICC, which will take a view on whether a country is "unwilling or unable" to proceed. If a country's legal system is best, there will be no reason, in the vast majority of cases, for the ICC to take a different view.
You said "unwilling or unable to proceed". I do not know what the mechanism for showing it will be, but the ICC might be unhappy about a trial taking place in a particular state for a particular reason at a particular political time—as Margo MacDonald said, that is an important point. Would the ICC be able to say, "We determine that this case should be heard by us, as we are not happy for it to be heard in that national jurisdiction"?
No.
That is a shame.
The Rome statute states that the ICC can take action only when a state party is "unwilling or unable" to do so. A further safeguard is that if the ICC prosecutor wished to initiate an investigation or prosecution, such proceedings would have to be cleared by a pre-trial chamber of judges within the ICC. The ICC prosecutor is otherwise unable to initiate prosecutions. In any event, the statute states that it is only where a state party is "unwilling or unable"—
That is a weakness.
I want to address the point about a state being "unwilling or unable" to continue with a case. I got the wrong end of the stick from the policy memorandum, as I thought that the United Nations Security Council had something to do with that procedure.
Paragraph 6 of the policy memorandum talks about the Security Council and refers to a state being
"unable or unwilling genuinely to investigate and prosecute a crime".
The policy memorandum suggests that the ICC would take over proceedings in such circumstances. Could you elaborate on where the Security Council fits in, as I am now a bit confused?
It would probably help if we avoided referring to the ICC taking over a prosecution, as it will not be in a position to call up a case—so to speak—from a national system.
Article 17 of the Rome statute provides that the ICC may determine that a case with which it is dealing is "inadmissible"—in other words, that it should stop dealing with that case—where
"The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution".
The purpose of that provision, as I understand it, is that proceedings are generally expected to take place in national courts. However, proceedings may be commenced in the ICC by the ICC prosecutor under the control of the pre-trial chamber if it appears that a show trial or a piece of window dressing is taking place in a state to give someone immunity by subjecting them to a trial that is intended not to achieve much. We can envisage without difficulty some states in the world about which there might be concerns about such trials. Therefore, it is possible for a prosecution to be commenced in the ICC. If a state that thinks that it is doing the job properly itself objects to the ICC continuing with a prosecution, or if the accused objects to the ICC continuing on the basis that the case is being dealt with properly in the national system, it will be for the ICC to examine what is going on in the national legal system. The ICC must determine whether proceedings reach the standard of justice required in cases of the most serious concern to the international community.
I hope that my answer makes the position a little clearer.
I—
Hold on, Margo. Members should indicate if they wish to speak. Do you wish to come back in, Scott?
Yes, although I want to raise a slightly different point.
In an ideal world, we would not have to prosecute any of those offences as they would not exist, but given that they do—there are recent examples of them—what is the ICC's expected work load? There seems to be a lot of emphasis on prosecutions taking place in individual states. A lot of time and effort is being spent on creating the ICC, but will it have a function?
It is not possible to say anything about the ICC's work load with any certainty, given that it will not deal with crimes retrospectively—it will deal only with crimes that take place after the court comes into existence. On the basis of experience, one would expect there to be some business for the ICC, but exactly how much will be determined by conflicts that arise and the sort of behaviour that takes place during them.
It is worth making the point that a key function of the ICC is to act as a deterrent. One would hope that the ICC's existence will lead to less criminality of the sort that the ICC is to deal with.
I want to follow up the issue of proceedings being batted backwards and forwards between a national legal system and the ICC. Dr Brown said that the ICC could initiate proceedings. While the local system—the national system—could take up the prosecution, the ICC might believe that that system is falling down on the job, for whatever reason. Who will decide any disputes?
I do not know whether I agree with the phrase "batted backwards and forwards", as we are talking about two sets of criminal proceedings: one in the ICC and the other in the national court. Ultimately, the question for the ICC will be whether it has jurisdiction to continue with the proceedings that have been commenced before it. The test will be whether a state that is party to the treaty is genuinely conducting its own proceedings. If the ICC considers that a state is genuinely doing so, it will require to take the view that it no longer has jurisdiction to continue with the case. Its decision will be amenable to appeal to the appeal chamber of the ICC. The ICC will decide about its proceedings and that decision will be subject to appeal.
It will be for the national authorities to decide whether to continue with a national court's proceedings. If the ICC carries on with its proceedings, questions of what we call, in Scots law, res judicata or tholed assize will arise. The fact that someone has already stood trial elsewhere on exactly the same charges and has been dealt with for those charges should bar them from further proceedings. It will be for both the national court and the ICC separately to decide whether their proceedings can continue.
A lot of effort has gone into ensuring that the ICC will be a court in which the international community, including the UK, can have a great deal of confidence. The tribunal will be a serious tribunal that will command substantial international respect—at least that is the intention. I understand that the UK is committed to ensuring that it will work in that way.
The committee's aim is to scrutinise the bill and identify problem areas. We have probably stumbled across a few of those already. The details that you provide are important.
Given that the sort of things that must be looked out for are disputes over jurisdiction, is there a point in proceedings at which the ICC must claim its jurisdiction? If a country thinks that it has jurisdiction, how far can it go with a trial before the ICC can say that it should deal with the matter?
The ICC can commence proceedings at any time. It is conceivable that ICC proceedings could start after national proceedings had taken place. However, the policy underlying the Rome statute and the UK's approach to it is that, where somebody is subject to the jurisdiction of a UK court—whether Scots, English or Northern Irish—that person will be prosecuted properly in the UK court in a way that fully meets international standards of justice.
Given the nature of the offences that we are talking about—crimes of the greatest gravity such as genocide, crimes against humanity and war crimes—it is extremely likely that the accused in Scotland will be in custody and the trial will be commenced within 110 days of full committal on petition. If there is a Scottish dimension, it is extremely likely that Scottish proceedings will have been commenced and completed well before there is any question of ICC proceedings. I would not expect the ICC even to contemplate the commencement of proceedings where a UK court is dealing with a case, unless there was some particular reason to think that the UK proceedings were in some sense not genuine. I cannot imagine that occurring.
The committee has to imagine extraordinary situations. You used the term "UK court". Scottish courts are Scottish courts. "UK court" is meaningless in Scots law. The phrase "international standards of justice" is just a phrase.
Christine Grahame is drawing out the correct issues. We have to be satisfied that the signatories to the treaty have a common understanding as to what international justice is. A person may come before a Scottish court with Scottish laws of evidence and Scottish procedures and another country with different procedures might argue that two courts working under the same treaty might come to a different conclusion. In examining the bill we want to be satisfied that there are no obscurities under the treaty. Have the similarities between the legal systems of the countries that signed the treaty been examined? I do not ask you to go through a list of all the signatories today, but we would like to see that.
I do not think that any comparative examination has been made of the legal systems of the states that signed the statute. In the negotiation of the statute, a process went on whereby generally recognised principles of criminal justice were identified, and they are set out in part 3 of the Rome statute. An attempt has been made to reduce to a written form the common core of principles of justice that are recognised internationally.
You are right to say that international justice is an expression that does not have much meaning. I use the expression as shorthand for a collection of different concepts. However, an increasing consensus can be identified about what rules ought to apply in a proper criminal proceeding. The detailed rules that are set out in the Rome statute represent the latest word on what those are. One would expect that national proceedings might be measured against the general principles that are set out in the Rome statute. I am confident that Scots law would measure up to those principles.
I want to pursue the issue a little bit further, because I am not totally clear about your response. You said that we want the international court to be of high standing and to have a high reputation, and you went on to give an example of how Scottish law would be affected. But is there a risk that the ICC will be undermined by not being able to resolve a difference between itself and a national country that was not seen to have the kind of standard of legal system that we would expect in Scotland? Margo MacDonald has given an example of that. If such a dispute could not be resolved, would that undermine people's confidence in the ICC?
The test for the international criminal court will be whether what is going on in the national system is genuine. If the ICC takes the view that what is going on in the national system is not genuine, I have no doubt that the national system concerned will not be pleased. To that extent, confidence in the ICC might be undermined in that country or, at least, in the Government of that country. Paradoxically, that same decision might increase other countries' confidence in the ICC, if they took a similar view of what was going on. The test is whether what is going on in the national system is genuine. That is what the court will be concerned with.
The ICC will want to be seen to be acting properly and clearly. The court will have to give reasons for its decisions. It will give fully reasoned judgments. One can get an idea of what those will look like by looking at the judgments of the Yugoslav and Rwandan tribunals—which are available on the internet through the UN website—in which one finds enormously detailed and completely transparent consideration. That very transparency in the giving of detailed reasons is the kind of thing that makes for confidence. As we said earlier, the court's judgments will be subject to an appeal procedure, in which detailed consideration and reasons will be given as well.
How international confidence in the international criminal court will end up will be very much determined by the way that the court goes about its business. However, the structure is there to ensure that it has the best possible chance of commanding respect globally.
I was concerned about a country not acting genuinely. In such cases, does the ICC have the power to announce that it will take over? If the nation in question continued to hold the trial itself, could the ICC be challenged because the nation already had to answer an accusation?
The ICC would not take over national proceedings; it would hold separate and distinct proceedings. If the national proceedings had been completed, the proceedings in the ICC would undoubtedly be subject to challenge. However, the fact that an accused person—or a lawyer acting on that person's behalf—makes a challenge to those proceedings does not necessarily mean that that challenge will be successful. That brings us back to the ICC considering whether the national proceedings on which the challenge is based were genuine proceedings at all. The word "genuinely", which appears in article 17.1(a) of the Rome statute, is of critical importance, and was included very deliberately, so that the ICC would take the decision on whether what was going on in a given nation was a real criminal proceeding or was simply a device to try to avoid ICC jurisdiction. It is a difficult question, which will have to be faced.
I have two or three questions to finish off. I wish to follow up the question raised by Mary Mulligan and others. I asked you how far into the proceedings it might be before there might be a challenge.
Let us think about the accused for one minute. Presumably, one of the general principles of international law would still be that that person was innocent until proven guilty.
Yes.
If a nation is allowed to complete a trial and to make a decision, can an international court intervene and say that that nation had not conducted the trial in a genuine way and that it was therefore going to challenge it and make another decision?
Yes.
It can do that, can it?
Yes.
Where does that leave the accused person? They have already stood trial; justice may have been dispensed at that point, and they may have had no case to answer.
That accused person will still be innocent until proved guilty before the ICC.
But under Scots law, it is not possible to retry someone who has already stood trial. It would certainly be a contradiction of Scots law; it might be a contradiction of other national legal systems.
That is why the word "genuinely" was included in the Rome statute. In order to establish the plea in bar of trial of tholed assize, it would be required to establish that the individual had been tried by a court of competent jurisdiction, and that the matter had been resolved by that court. That principle exists internationally, and is written into the ICC statute. However, it is subject to the qualification that the proceedings with which one is concerned have to have been real proceedings. That does not mean that they have to be proceedings with which everyone would agree in every respect, but they would have to have some real substance.
The question of the presumption of innocence arises in relation to the trial. With regard to what the European Court of Human Rights has said on the matter, the court that is dealing with the trial must not start with the assumption that the accused is guilty. It is up to the prosecution to prove that guilt to the required standard and by laying evidence before the court sufficient to justify such a conclusion. The fact that the accused may have been convicted or acquitted in a national court will not be of any relevance to the result in the ICC. The accused will still be entitled to the presumption of innocence during an ICC trial. I would not expect that the result in the national court would be regarded by the ICC as indicating anything about the accused's guilt or innocence when it comes to the ICC trial. In other words, the accused will start with a clean sheet.
About a year and a half ago, the High Court of Justiciary heard a case in which the court considered the effect on the trial of the accused of a conviction or an acquittal of the accused's associates in previous proceedings. The High Court made it clear that the conviction or acquittal of an associate in a separate case had nothing to do with whether the accused was to be convicted or acquitted in that particular case and that one had to start from scratch. I am conscious that members might want the name of that case, and I am sorry that I cannot remember it offhand. Should anyone want it, the clerk can contact me and I will look it up.
My point is that the accused will get a completely clean sheet in the ICC if he is being tried there. He also gets the presumption of innocence—that procedure is certainly demanded by the rules in the statute—and is to be given all the protections that are provided for by international human rights law.
We will probably return to that point on many occasions.
Christine Grahame and Margo MacDonald have two quick questions.
I return to my point about parity of judgments, which would give the ICC clout at the same time as making the signatories to the statute feel secure that there is a level playing field for justice when individual national courts are trying cases.
I have examined the definitions in schedule 1 of the bill. New crimes have been created, and there is a list of crimes against humanity for which there are expansive further definitions. Will the decisions of national courts be reported and collated in a way that will allow monitoring of how, on the evidence, definitions have been interpreted by the courts? When the ICC hears trials and reports them, will those trials be reported fully and collated so that monitoring can take place of how justice, in humanitarian terms, operates? Will the ICC's decisions be merely persuasive in relation to the interpretation of the definitions or will they be ranked higher than that? They may not be binding, but—
Christine, you were supposed to ask a short question.
That was it: I asked only one question, but I elaborated on it.
My answer will be short, which is unusual for me. I do not know of any formal requirements for either national or ICC decisions to be reported. However, the Lauterpacht research centre for international law in Cambridge produces a series of publications called the International Law Reports. I think that the decisions will be reported and the ICC decisions will almost certainly go on the web in the same way as those from the Rwandan and Yugoslav tribunals were put on the web.
The ICC's decisions will be very persuasive. The expansion of the definitions that Christine Grahame referred to comes from existing international law instruments and from the International Law Commission's 1996 draft code of crimes against the peace and security of mankind, which the Rwandan tribunal said was highly persuasive and authoritative, but not binding. That is the sort of territory that we are in.
Had the treaty been ratified three or four years ago, the ICC would be in existence now. What difference would that have made to the prosecution of the Lockerbie case? Would the trial have been seen as a genuine attempt to deal with the situation?
The short answer is that terrorism, such as was tried in the Lockerbie case, is not within the jurisdiction of the ICC.
Would it not have been seen as a crime against humanity?
I do not believe that that case would have fallen into that category.
I ask because the Lockerbie trial was about law and about having to marry different legal systems. However, it was also about politics, and we should not close our eyes to that.
The ICC will be able to use crime against humanity as grounds for prosecution. Is that a catch-all provision, or is it specific? I would have thought that the Lockerbie incident might well have been a crime against humanity.
A crime against humanity is defined in the Rome statute and that definition is replicated in the bill. Specific elements of a crime against humanity are defined, and terrorism does not generally fall within that definition.
I thank the witnesses, whose evidence has been useful.
I suggest that we have a short break for coffee before we deal with the next agenda item. During the break, members will have a chance to examine some diagrams on our inquiry into the Crown Office and Procurator Fiscal Service. We will resume at 11:20.
Meeting adjourned.
On resuming—