Plenary, 13 Sep 2001

Meeting date: Thursday, September 13, 2001

Official Report 625KB pdf

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International Criminal Court (Scotland) Bill

We now move to the debate on motion S1M-2044, in the name of Jim Wallace, which seeks agreement that the International Criminal Court (Scotland) Bill be passed.

I thank members, not least those on the Justice 2 Committee, for the work that they have done on this important bill. I also thank those who contributed to the work of the Justice 2 Committee through the submission of written or oral evidence. From the amendments that have been lodged in the light of the committee's deliberations, it is clear that those who gave evidence, the members of the committee and the clerks who served the committee have properly and fully discharged their scrutiny function. The bill has arrived at this stage of the process in a better state because of that work.

I also thank officials in the justice department for their work on the bill—including liaison with the Home Office to ensure that the bill works in tandem with the Westminster act—and the Deputy Minister for Justice, Iain Gray, for his considerable endeavours in the scrutiny of the bill. That scrutiny has been completed within a very tight timetable to enable the United Kingdom to be among the first 60 countries to ratify the Rome statute on the international criminal court.

The amendments that have been debated were lodged in response to concerns that were raised. We also had an important debate on the role of the Lord Advocate and the appropriate forms of jurisdiction. I am confident that the bill is a robust one that will allow Scotland to fulfil its international obligations and play its part in the establishment of a permanent international criminal court.

The events of this week have brought home to us how horrific crimes against humanity can be. However, although the bill will deal with some of the most terrible crimes known to mankind, the Rome statute does not extend the remit of the international criminal court to crimes of terrorism in so far as the definition of those crimes is normally understood. In considering the Rome statute and in setting up the ICC, the international community took the view that terrorist crimes should be dealt with under the 12 or so existing international conventions and protocols on terrorism. Special measures for dealing with terrorism are a reserved matter under schedule 5 to the Scotland Act 1998.

That said, it is too early to arrive at definitive judgments on whether, if it had been in place, the ICC would have been called on to deal with the appalling and destructive atrocities that were perpetrated on Tuesday. What is clear, however, is that the events of Tuesday demonstrate just how far some people are prepared to go in committing terrible carnage and crimes in pursuit of their aims. Whether that crime would have been within the remit of the ICC should in no way deflect from the importance of the need to establish the ICC as an international institution.

We have been reminded constantly of the terrible nature of war crimes. In January, I represented the Scottish Executive at the national Holocaust memorial day ceremony in the Methodist Central Hall. The testimony of those who had suffered in the concentration camps of Nazi Germany, Bosnia, Rwanda and Cambodia brought home the appalling treatment that people can mete out to fellow human beings. We are also reminded of that by the on-going work of the tribunals that have been specifically established to deal with the events in Rwanda and the former Yugoslavia.

One sometimes little-thought-of aspect of the move towards the establishment of a permanent international criminal court is the deterrent effect that it is hoped such an institution on the international stage will have on those who are tempted to commit appalling offences. Even if a few such people are deterred by the fact that the ICC will be in operation and will take action immediately, the efforts of this Parliament and of the international community will have been well worth while.

The International Criminal Court (Scotland) Bill will enable the United Kingdom to fulfil its obligations under the Rome statute and will thus allow ratification of the treaty. Part 1 defines genocide, war crimes and crimes against humanity in exactly the same fashion as the Rome statute does and makes them crimes in Scots law. That is important from the point of view of complementarity, which is the principle that individual countries investigate and prosecute those crimes where there is a relevant connection.

Part 2 makes provision for Scottish ministers to provide assistance to the ICC in its investigations and prosecutions. It does that by making provision for helping with the identification of individuals in whom the ICC has an interest, for taking and providing evidence, for questioning those who are being investigated or prosecuted and for allowing the assets of crime to be traced and frozen.

Part 3 makes arrangements for orders to levy fines, forfeitures and reparations against those convicted by the ICC in response to an ICC request. It also permits those convicted by the ICC to be brought to Scotland to serve their sentences of imprisonment, which is an important measure of assistance, given that the ICC cannot, by definition, have its own prison.

The latest figures indicate that 37 countries have taken the important step of ratifying the Rome statute. It is gratifying that we are almost two thirds of the way towards the total number of signatories that are required before the court can be established. With the passing of the bill, the UK will be able to add its name to that list of countries and will thereafter be able to take its place among the first assembly of state parties to be established after the total of 60 countries is reached. That will be a momentous and important occasion in the development of international justice, to which our legislation will have made a contribution.

I move,

That the Parliament agrees that the International Criminal Court (Scotland) Bill be passed.

I thank the minister for the remarks that he made during stage 2 of the bill in the Justice 2 Committee, which is my former committee. As usual, of course, a little more time at that stage would have been useful.

As the minister said, the fact that the debate on this bill was due to take place yesterday is a bitter irony, as images of a burning New York replaced it on our agenda and the agenda of the world. That was graphic evidence, if any were needed, that this is a small planet where our enemy can steal up on us and where the hatred of one nation or one people by another can be fought out on our television screens blow by horrendous blow. However, the bill does not concern terrorism; it deals with the crimes that are contained within the horrific walls of war and its consequences. Those crimes include

"Wilful killing … Torture or inhuman treatment, including biological experiments … Wilfully causing great suffering, or serious injury to body or health … Unlawful deportation or transfer or unlawful confinement … Taking of hostages"

and, chillingly,

"Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives".

How that resonates in the current circumstances.

There is, however, another irony from which I will not flinch: the United States has not signed up to this treaty. I hope that it does, because, without the USA, the treaty is lessened.

The bill gives nations the opportunity to act as one on the small world stage. Barbaric men and women who have committed deeds that are often too heinous to imagine against their fellow men have merged into the landscape for decades and have led the full life that they denied to others. For such people there should be no hiding place, no sanctuary and no escape from justice. They have committed crimes that will never be time-barred; for them, the passage of time, with the apparent legacy of a decent life, is no defence against their brutality.

The will and the honesty of nation states are required for this legislation to work. If man's inhumanity to man continues, as it seems that it must, those responsible for it—no matter where they are or who they are—must be pursued, judged and punished.

The bill and the corresponding legislation of other signatory nations represent a small but important start. The SNP fully supports Scotland's participation.

In supporting the bill, I express gratitude to Mr Iain Gray for giving an important reassurance. He said that our bill and the UK act mean that there can be no possible scenario in which the ICC has jurisdiction over a British national or serviceman while a British court does not. If serious allegations are made against British servicemen, the UK authorities will examine them. There is nothing new in that situation.

During the debate, I confirmed that the bill will give hope to vulnerable communities that are threatened with harassment, persecution and terror. It serves a useful purpose and should be seen as a warning that, in the event of inhumanity rearing its ugly head, the machinery will be in place to ensure that justice is done. Whatever reservations we might have about effectiveness, cost and legal jurisdiction, we welcome the bill, whose purpose is to bring justice to those who have committed crimes against humanity, and we support it accordingly.

As the Deputy First Minister has reminded us, two days ago we learned the tragic news of crimes against humanity through murderous and premeditated attacks on civilians on a massive and unprecedented scale. That serves to reinforce our will that the bill be passed.

The stage 1 debate on the bill was aptly timed because it took place the day after Thabo Mbeki had addressed the Scottish Parliament and reminded us of our international obligations. Today, we have our stage 3 debate after the tragic events in the USA have pressed home the importance of the bill by again reminding us of our moral and legal obligations to the rest of the world.

The UK delegation in Rome has to be commended for its work. It achieved some important changes to the definition of crime that is incorporated in the statute. Articles 6, 7 and 8 make specific advances in international law and the definition of crime. The statute makes the recruitment and enlistment of children under the age of 15 a war crime. Certain sexual and gender offences are now included. The crimes of torture, enforced disappearance and forced pregnancy are now defined in the statute. Crucially, the statute now includes action by non-state actors as well as by officials of state.

We know that 120 countries have voted for the statute. I hope that the seven that voted against it will now sign up to what is an emerging consensus. It is important to note that the wealthier nations paid for 50 poorer nations to come to the discussions on the Rome statute. Let us hope that that kind of sharing of the world's resources continues.

The bill creates a permanent setting for an international criminal court. It is important to note the use of the word "permanent".

In certain circumstances, we can prosecute crime as defined in the Rome statute. That is not to be underestimated. Through the bill and mechanisms such as international treaties and extradition orders, our international law will be more comprehensive. We are signalling to others that we have dramatically increased our chances of prosecuting and convicting all those who commit crimes against humanity at whatever level they operate. Down the chain of command from the highest to the lowest, we will find and prosecute such people.

From the moment it is passed, the bill will catch every crime. That is why our Parliament has rightly been under pressure to complete quickly the stages of the bill's consideration. I thank the members of the Justice 2 Committee for their hard work.

Other important aspects of the Rome statute go beyond prosecuting crime. I will mention one. The establishment of a United Nations trust fund for victims is a crucial element of the bill. It was promoted in another place by the then Foreign Secretary Robin Cook. Those who are found guilty should pay reparations to victims. It is argued that those who abuse their power to torture or murder often abuse their power to make themselves rich.

The ICC will be a new court with new judges, new procedures and new rules. I like to think that we will not simply forget about our role in the ICC after today. We have to ensure that the development of law and the rules and procedures of the ICC follow the lines that we expect and that the good practices of the Scottish legal system can influence some of the good practices of the ICC.

I support the bill. I, too, thank the convener and members of the Justice 2 Committee, who, with the help of consultees and witnesses, conducted detailed investigations into the bill.

The bill is an important step forward in the international role of Scotland and of the United Kingdom. I believe that Scotland has played an important part by speedily ratifying the Rome statute—an international agreement to establish an international criminal court. I can do no better than quote Kofi Annan, who, after saying that the UN would do its part in realising the vision of an international criminal court, continued:

"We ask you … to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights and that those who violate those rights will be punished."

Those words stand to this day and hold for the process that all Parliaments in the world will, I hope, go through to ratify and implement the ICC.

The creation of the ICC is backed by the international community. It is a just means to an end, an end that the Parliament should be pleased to play a role in achieving. The Liberal Democrats firmly support the International Criminal Court (Scotland) Bill.

Will the member give way?

The member has finished, I am afraid.

I am happy to support the bill fully, but I draw members' attention to what still seems to me to be a defect in our proceedings. The timetable for the bill worked much better than some past timetables have. That is good. However, all the consideration of the bill has been done by about six or eight people. They consider it in the committee. They lead the stage 1 debate. They conduct the entire proceedings of scrutinising amendments at stage 2. They also monopolise—I do not mean that in a harsh sense—the stage 3 debate.

I am sure that those people are good and that they master their subject. Those of us who have not been involved in the scrutiny of a bill are somewhat apprehensive about taking part in debates on that bill. Each party group tends to follow the spokesperson's leadership on that subject. That means that important bills, such as the International Criminal Court (Scotland) Bill, are the fruit of the intelligence and application of six or eight people, rather than of all 129 members.

We should consider ways of broadening the debate. For example, there could be a seminar on the main issues that have emerged at stage 2 before we have the stage 3 debate so that others will understand what members are arguing about. Our deliberations would have more democratic sanction if the debate at stage 3 were wider. That is worth considering.

Ms MacDonald, do you wish to speak? Your light is on.

I intervene at this point in the debate because, at the end of Tavish Scott's speech, I wanted to ask whether he considers that anything that we say about the bill has been affected, adversely or otherwise, by the events in the USA in the past 48 hours.

Donald Gorrie made the point that the whole chamber is involved in the bill. Although the bill is highly technical—it is about international law and international regulation—it is at the interface of humanity, politics, individual morality, international crime, legislation on that crime and orderly conduct of the pursuance of war criminals and criminals against humanity.

The events in the USA were of such magnitude that we should not only pass the bill, but pass comments or recommendations to the UK Government, which is the signatory to the Rome statute. The reason for the rush with the Scottish part of the legislation has been to enable the UK to become one of the first 60 countries to ratify the Rome statute. Frankly, I have never thought that that was desperately important. That is a personal point of view.

If the USA does not now sign up to the ICC, the court is greatly diminished, particularly in the wake of what has happened, whose repercussions for international law, commerce and the global economy we can only guess at—there are huge repercussions that we have not even considered yet.

The bill, of course, has the correct intention and will be supported by almost every member. The application of that intention may have been greatly compromised by what happened in the USA and by the USA's absolute determination until now not to sign up to the ICC.

I say to Ms Macdonald that I seem to recall that the USA recently signed up to the ICC and that it did so before Tuesday's horrific events.

On a point of information, one of the last acts of Clinton's presidency was to indicate that the USA would take part in the ICC. That had more to do with the internal politics of the USA than with the ICC. The incoming Bush Administration said that it would not sign up to the ICC and that it would not put American servicemen in various parts of the world at risk of almost automatic prosecution.

The USA's position is crucial to whether the ICC can be implemented soon, later or at all. For that reason, I would like every member to debate the much wider question of international criminal justice. We should pass the bill—it is the technical side of international criminal justice—but we have much more to consider and, perhaps, to contribute to the UK's deliberations on the matter.

Like most members, I imagine, I am pleased to give my whole-hearted support to the passing of the bill. I remember at stage 1 hearing in another capacity somewhat grudging remarks on the timetabling of the bill. The issue is important and properly demands the attention of the Parliament.

While the bill might be described as technical, it is tremendously important. It has been awaited since the aftermath of the second world war and finds its origins in the Nuremberg and Tokyo tribunals. The legislation outlines a democratic response by the democratic world to acts of genocide and associated acts of violence and attack on the world order.

Perhaps against the backdrop of recent tragic events we are seeing the emergence of a worldwide consensus on the establishment of a world justice system. It is regrettable that Ms MacDonald should maintain the line that it is simply a question of the UK rushing to sign up to the Rome statute as though we were caught up with issues of status or just so that we could be involved. There is, of course, a triggering arrangement for effective establishment of the court and I dissociate myself—as I trust many members do—from suggestions of a purposeless abruptness or eagerness on the part of the UK.

Although Christine Grahame adjusted her position during the debate, it is regrettable that she had seemed to suggest exclusivity on the part of the nationalists in relation to the efficient and effective working of the ICC regime. I trust that everyone in the chamber has a keen interest in the establishment of an efficient and effective ICC regime. That is the clear will of the international community in relation to the Rome statute. It is an achievement of the democratic west. We should celebrate that achievement and not regret the fact that the chamber has shown almost whole-hearted support for the bill, which I commend to the chamber.

It is pleasing to note that, despite our disagreements on the most appropriate form of jurisdiction, there is nonetheless overwhelming support in all quarters of the Parliament for the concept and the reality of a permanent international criminal court.

When the target date of July 2002—the fourth anniversary of the promulgation of the statute—was first mooted for achievement of the 60 ratifications necessary to establish the ICC, cynics said that that was unrealistic. I am glad that, in this case, the cynics might be proved wrong and that we will have played our part in that today.

The debate began with Christine Grahame's appropriate and respectful reference to the acts of terror perpetrated earlier this week. Although it has been made clear that the bill does not address terrorism, it is right that the debate should end in a similar vein. The truth is that there is a link between our business today and the atrocities in New York and Washington. Brian Fitzpatrick pointed out that link. Yesterday, our Presiding Officer said:

"we seemed determined to create a more civilised global society in the 21st century."—[Official Report, 12 September 2001; c 2407.]

We are so determined. The internationalisation of the rule of law at the heart of the bill is a manifestation of that determination. Like Christine Grahame, I hope that the USA, which has signed the treaty, will also ratify it in due course.

Yesterday, our First Minister said:

"let us remember quietly and proudly the values that the perpetrators of yesterday's atrocities can never overcome."—[Official Report, 12 September 2001; c 2410-11.]

The rule of law—justice—was one of those values. The combination of many domestic jurisdictions in the structure of an international criminal court and the extension of the cover of responsibility under the law to most of the world and to the most extreme circumstances of war and tyranny are marks of progress that terror might delay but cannot halt. Our small contribution to that has been delayed by 18 hours; it should be delayed no longer. I ask members to support the bill.