§ 3.6 p.m.
§ The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 23 [Provisions as to state or diplomatic immunity]
Lord Avebury moved Amendment No. 73:
Page 13, line 9, leave out subsection (4).
§ The noble Lord said: I shall speak to the amendment on behalf of my noble friend Lord Lester and at his request.
The amendment would remove the discretionary power of the Secretary of State to direct that proceedings under Part II shall not be taken against a person to whom subsections (1) and (2) apply. Article 27 of the statute provides that:
This Statute shall apply equally to all persons without any distinction based on official capacity".
§ That includes heads of state or government. Therefore, in accepting Article 27, a state party to the ICC Statute has already agreed that the immunity of its representatives, including its head of state, may be waived before the International Criminal Court and that their status is not a barrier to their arrest and surrender to the court.12
§ A non-state party to the ICC Statute has not accepted that provision and the immunity of their diplomats remains intact unless there is an express waiver. If there is a waiver of immunity in relation to a request for a diplomat's surrender, that waiver is treated as extending to proceedings for his arrest and surrender to the ICC.
Article 98 of the statute says:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity".
§ The court would not have the power to ask the United Kingdom to breach our obligations relating to state or diplomatic immunity.
§ If any case arises as to the status of a person named in the request made by the ICC under Clause 2, the determination of his status will be a matter for the court, not for the state party—in this case the United Kingdom—that received that request for provisional arrest and surrender.
§ The subsection that we are dealing with assumes that there will be consultations between the Secretary of State and the ICC but leaves the Secretary of State with an unfettered discretion to direct that further proceedings shall not be taken, whether or not the person concerned is a national of a state party.
§ If under international law there is any doubt as to the nationality or immunity of the person concerned, I submit that the correct procedure would be, first, for the Secretary of State to draw the attention of the International Criminal Court to the evidence, showing that that person is a national of a non-state party and that he has an immunity recognised in international law. If the court agrees that the person has immunity, it can then apply to the non-state party for a waiver. If it does not obtain the waiver, the court has the power, under Article 58.4 of the statute, to cancel the warrant of arrest. Clearly it would wish to exercise that power if it was satisfied that the accused had the status which he claimed.
§ If, after examining the evidence, the court disagrees with the person's claim to the nationality concerned or with his claimed immunity, that is a matter for the court and not for the Secretary of State. The accused may still challenge the jurisdiction of the ICC on any of the grounds of admissibility which are mentioned in Article 17 of the statute. The non-state party which has refused to accept the jurisdiction of the court under Article 12.3 may also challenge the admissibility of the case under Article 19.5. If that were to happen, presumably the competent court in this country would adjourn the hearing of any request by the ICC for the delivery of the person concerned under Clauses 2 or 3 of this Bill until the ICC had determined the question of admissibility.
§ Perhaps I may refer to the relevant New Zealand legislation; that is, the International Crimes and International Criminal Court Act 2000. The sequence of events that would occur when any question arose of conflict with other international obligations is spelt 13 out. There, the Attorney-General must inform the ICC of the supposed conflict and the Minister has the power to defer compliance with the ICC's request until the ICC advises him whether or not it intends to proceed. In the event that the ICC tells the Minister that it intends to proceed, the request must be executed. The ICC, and not the Minister, has the final word, and the same principle should apply in this country.
§ This particular subsection has far wider implications than for the UK alone. Other countries will be using our legislation as a model: countries in the Commonwealth; perhaps countries in the European Union; and countries further afield. I can only imagine that if some of those countries gave a power to their Ministers equivalent to the one set out in this legislation, it would not always be exercised in the spirit of the statute. If, for example, Iraq is a non-state party which has an agreement with other states to grant immunities to Saddam Hussein and other leading figures in the regime, those other countries may be able to refuse co-operation with the ICC by saying that they have bilateral treaties with Iraq which prevent them complying with requests for arrest and delivery of the alleged criminals.
What would happen if a question arose as to the nationality or diplomatic status of the accused? First, if the accused is a person such as is mentioned in subsection (1), no argument exists as to jurisdiction. If, on the other hand, he is a citizen of a non-state party, then normally a waiver would have been obtained and certified by the Secretary of State under subsection (3).
§ However, let us suppose that at this point the accused claims that he is not a citizen of the state which issued the waiver but of some other non-state party and that he possessed an immunity as a result of his position in that state. Either way, the Secretary of State would consult the ICC. If they agreed that the accused was what he claimed, the ICC would cancel the warrant. If, on the other hand, they were both satisfied that he was not qualified, the proceedings would continue.
§ Therefore, the only circumstances in which the power might be used would be either if the ICC disagreed with the Secretary of State or if it wished to determine the validity of the claim for itself rather have it done for it by the Secretary of State. That does not constitute full compliance with the statute and I hope that, on reflection, the noble and learned Lord will agree to reconsider the matter. I beg to move.
§ 3.15 p.m.
§ Lord Archer of Sandwell
I hope that the noble Lord, Lord Avebury, will forgive me for the fact that I exhibited some surprise when he rose to move the amendment. As I was the only person present whose name appeared to the amendment, I believed that the task would fall to me. However, there is nothing personal in that and I do not in any way question the noble Lord's right to move it. Indeed, I rise to support him.
14 Perhaps I should say at the outset that the noble Lord, Lord Lester of Herne Hill, and my noble friend Lord Goldsmith, who also put their names to the amendment, asked me to convey to your Lordships their regret that they cannot be here until later in our proceedings. Fate decreed that the amendment was not reached during the first day of the Committee stage when they were present throughout and that it was reached before they were able to be here today.
Perhaps I may also say at the outset that I do not resile from one word that I said at Second Reading. I believe that the Government are warmly to be commended on the lead which they gave in the negotiations leading to the statute, on their determination to ratify the statute as soon as possible so that we shall not dissipate the influence that we have acquired by arriving late at the table, and, accordingly, on finding time for the Bill. Therefore, I have no mission to complain about a gift horse.
I support the noble Lord, Lord Avebury, because, together with my noble friends, I seek to give the Government's artefact an extra polish. I confess that I find it disappointing that successive British governments of whatever complexion have played a heroic role and have then gone out of their way to silence the chorus of approval by ensuring that attention is concentrated not on their achievement but on the defects.
As the noble Lord, Lord Avebury, said, one consequence of Article 27 is that a state which ratifies agrees to waive diplomatic immunities in respect of its own officials in proceedings before the court. That is given effect to by Clause 23. Of course, a statute cannot deprive a potential defendant of diplomatic immunity if the state in respect of which he claims it is not a party to the statute. However, as the noble Lord said, there is provision for that state to waive the immunity if it considers it right to do so because the immunity is there for the benefit of the state which is being served and not of the individual. Clause 23 gives effect to that provision, too.
Those provisions are a necessary corollary of the whole purpose of the statute. Those who commit monstrous offences which fall within the court's jurisdiction are not confined to private soldiers and minor officials. Often they are acting in accordance with a deliberate policy initiated by senior politicians and officials. To provide that they shall be immune from the process would be to frustrate what it is there to achieve. The international tribunals for Yugoslavia and for Rwanda equally provide that there shall be no defence of diplomatic immunity.
That is one of the many ways in which the modern world subordinates the interests of individual states to the needs of the global community. Last year, Mr Kofi Annan expressed that sentiment in a speech to the General Assembly. He said that in a growing number of challenges, the,collective interest is the national interest".Therefore, as I understand it, we are all agreed on the principle to which Clause 23 gives effect.
15 However, as the noble Lord, Lord Avebury, said, for a reason which is not clear—at least, to me—the Bill proceeds to explain that it does not really mean what it says. Although in those situations the right to rely on diplomatic immunity is withdrawn, nevertheless the Secretary of State may direct that the proposed defendant shall not be delivered up to the court. That is a curious provision for at least three reasons.
First, it appears to frustrate the whole purpose of Article 27. Those who might otherwise have relied on diplomatic immunity shall nevertheless be subject to the court's jurisdiction, but only if the Secretary of State decides that they shall.
Secondly, as the noble Lord, Lord Avebury, said, it introduces an executive discretion by a politician into a judicial process. The Secretary of State is not required to give reasons for his decision. If he declines to explain how he arrived at his conclusion, no one has the power to second guess him. Thirdly, it opens the door to diplomatic pressures by other states, including the state of which the prospective defendant is a national, in a process which is specifically designed to protect the rule of law from diplomatic pressures.
The Government gave a commendable lead in the discussions prior to the statute in arguing that the prosecutor should not be subject to political interference, yet that is precisely what the Bill now seems to propose. I understand that implementing the statute may sometimes cause a strain in our relations with another state if that state does not wish to see one of its nationals answerable for his conduct. But I should have thought that in that situation it would make life easier for the Government if they can respond to representations by saying that they have no power to interfere with the process.
The Bill could place the Secretary of State in a situation where he must either refuse the request of the other government to intervene, although he has power to comply with that request, or obstruct a prosecution which the British public and world opinion might wish to see undertaken. That is not a method of protecting the Government from embarrassment; it is a recipe for embarrassing the Secretary of State and creating diplomatic difficulties.
I believe that is the view of the many distinguished NGOs in the field of human rights which have addressed some of us on this subject: Amnesty, Redress, the Medical Foundation for the Care of Victims of Torture and the Parliamentary Group for World Government, which is represented in this House, all of which applauded the Government's work on the statute but are now spending more of their time pressing for changes in the Bill. That is a pity. Those of us who tabled the amendment did so because we want the process to work successfully. We did so not to embarrass the Government but to spare them embarrassment. We are all on the same side. I hope that the Government will listen.
§ Lord Howell of Guildford
This is an important issue and an interesting part of the Bill. I am extremely glad 16 that the two noble Lords—a powerful duo—have jointly moved the amendment, if that is what occurred, and enabled us to pursue one or two matters which need clearer answers than we have had so far.
Discretion is given to the Secretary of State in subsection (4), which the noble Lord, Lord Avebury, wants to see removed, that after consultation with the ICC, proceedings under this part of the Bill can be stopped. In other words, the challenge to immunity can be challenged and immunity re-asserted. We need to know from the Minister how far the discretion goes and under what circumstances the Minister thinks it will be used. If it is used, will that be reported to Parliament and that the Secretary of State had so directed under his powers in subsection (4)?
Could one speculate a little as to whether it would be used to protect senior officials, senior Ministers, or even a head of state? The Bill is not retrospective but we can see situations in the recent past where our own senior Ministers, indeed, the Prime Minister, have carried responsibility for actions which have involved the killing of civilians and the intentional bombing of targets which may or may not be genuine military objectives. I have personal views that such actions were entirely right and proper, but many people have personal views that they are not; that they should be challenged and that they constitute war crimes. This might be a place where this barrier—we shall come to others which appear to exist in the Bill—could stand in the way of charges being raised, warrants being issued or even an investigation being initiated against a senior official who, in our view inside this jurisdiction, had acted properly and in the service of the state.
We need much more clarification. As for this being a model for other countries, I have to say that in general I hear the idealism of the noble and learned Lord, Lord Archer. Indeed, we heard similar idealism from the noble Lord, Lord Goldsmith, last week on the idea that if we follow certain lines and reduce our safeguards against certain unwelcome developments, even safeguards against our national interest, other countries will follow suit and we would have set a good example.
That is high idealism and it is splendid. However, I feel that with some little experience of international affairs it is completely unrealistic. The real world is not like that. There are many countries which have not yet signed, and even signatories such as Iran, which would not take the slightest notice of models and examples that we set. They would look after their national interests, certainly protect their senior officials and insist on immunity with gusto.
To turn the argument on its head, this particular case is one example which, if left in the Bill as the Government clearly want, will be a model that all the countries will follow. They will follow models which enable them to have more protection, more safeguards, more immunities and more guarantees so that they can frustrate the international jurisdiction, 17 international power and the intentions behind the Bill which the noble and learned Lord, Lord Archer, and others, have so graphically described.
§ Lord Archer of Sandwell
I am grateful to the noble Lord. If, as he says, it is true—it may well be—that if the provision we seek to delete is left in, other countries will regard it as a model, does he regard that as an argument for leaving it in or for taking it out?
§ Lord Howell of Guildford
I regard it as a case for looking at our own interests and leaving it in, not as a case for thinking too much about what will or will not be a model. I have tried to say that the general argument, which was used by the noble Lord with great sincerity, that other countries—perhaps some of the non-signatories which will become signatories such as China—will be influenced for one second by what we leave in or take out of the Bill, is a well-meaning fantasy. However, I also say that this case might be one example which they will follow. I do not know whether or not they will. Even if we leave it out, they will probably put it in again if they have similar legislation.
On balance, my own view starts from our own interests in the international context with a desire to make the Bill work. Nevertheless, I realise that in certain cases the discretion must exist. Therefore, I am not on the side of the amendment, but I should like some of the questions raised to be answered.
§ The Attorney-General (Lord Williams of Mostyn)
I sympathise with what motivates the noble Lord, Lord Avebury and the noble and learned Lord, Lord Archer of Sandwell. However, they proceed on a mistaken analysis of what the statute brings about and what Clause 23 deals with.
The Rome Statute brings about a circumstance in which immunities shall not be a bar to prosecution before the ICC in respect of those states which have signed and ratified, because by signature and ratification they agree to the provision of non-immunity. This clause provides that diplomatic and state immunity cannot shield representatives of states parties from arrest and surrender to the ICC. That is the first proposition and the first step.
However—this is where the mistaken analysis creeps in—the same is not true of non-states parties. By virtue of subsisting international law which binds Her Majesty's Government, we have to accord diplomatic and state immunities unless the state concerned has agreed to waive them. Two matters follow from that. First, we hope that as many countries as possible will become states parties to the statute. Secondly, we hope that the remainder will not permit immunities to protect their representatives from criminal responsibility. That is the purpose of subsection (4).
Subsection (4) provides that the Secretary of State may direct that arrest and surrender proceedings not he taken against someone who enjoys state or diplomatic immunity. What must he do before he 18 makes that direction? Subsection (4) tells him that he may take that step only after consulting, first, the ICC and, secondly, the state concerned.
Therefore, the provision has nothing to do with any weakening of the power of the ICC to bring to justice those against whom grave allegations are made who are representatives or nationals of state parties. Here we are dealing with the representatives of international sovereign countries which have not agreed to the ICC statute.
§ 3.30 p.m.
§ Lord Archer of Sandwell
I thank my noble and learned friend for giving way. I am trying to follow his argument. However, I am a little puzzled because subsection (4) provides that the Secretary of State may direct that proceedings shall not be taken against such a person as mentioned in subsections (1) or (2). Subsection (1) relates to states which are members.
§ Lord Williams of Mostyn
And subsection (2) refers to connection with a state other than a state party to the ICC statute. That is exactly the point I am making. One therefore has two categories. Some are representatives of states' parties and some are representatives of parties which are not state parties. That is exactly the point I am trying to make.
§ Lord Avebury
I do not believe that the noble and learned Lord has fully taken the point raised by his noble and learned friend. The power in subsection (4) allows the Secretary of State to direct that the proceedings do not go ahead in relation to a person such as is mentioned in either subsections (1) or (2). If the noble and learned Lord is arguing that we still need the discretionary power in relation to non-state parties, he has not explained why it is necessary to refer to both the subsections and not just to subsection (2).
§ Lord Williams of Mostyn
That is a legitimate point which, when it is put discreetly, is a better point than the point that my analysis is completely wrong. The analysis I am trying to put is at present based entirely on those who are representatives of non-state parties. I had understood—doubtless wrongly—that the noble Lord, Lord Avebury, and my noble and learned friend Lord Archer of Sandwell objected to both. We now understand the nature of the objection. I am saying that in respect of non-state parties, with which I am now trying to deal, the provision is necessary because our obligations under international law require it.
In respect of subsection (1), it is possible in exceptional circumstances, which I concede are difficult to envisage, that the point might be engaged. I am able to say that as regards the states parties and the non-states parties alike, the views of the ICC and the state concerned would be important factors in any decision. I ought to say what government policy is. It is quite clear that war criminals ought to be brought to justice. That is why—and everyone agrees—the Government have been so vigorous in their work on the statute. I am grateful to both noble Lords for commending us.
19 There may be exceptional circumstances in which subsection (4) might want to bite. As the way in which the noble Lord, Lord Avebury, has put the matter is a little more focused than the general objection, I shall look again to see whether I can give further assurance. I do not know and I must consult my noble friend Lady Scotland on the matter. I do not resile on the non-states party point.
The noble Lord, Lord Howell, asked a question relating to senior Ministers in high authority. I take his point: the statute, when effective, is entitled to strike the mighty as well as their obedient, or directed, servants. He asked whether it would be the occasion of a parliamentary Answer and I believe that it would be. As any such request is likely to be highly publicised, it seems to me inconceivable that a Question would not be asked about the exercise of the Secretary of State's discretion.
I am standing firm on the non-states parties. I realise that it may not be entirely attractive to both noble Lords. I shall look again at the point relating to subsection (1), although I cannot hold out a real prospect of a change of view. However, I might be able to give a firmer assurance about government thinking.
§ Lord Avebury
First, I apologise to the noble and learned Lord, Lord Archer, for the apparent discourtesy. I had imagined that after my noble friend Lord Lester spoke to me he would have said something to the noble and learned Lord. It is my fault for failing to speak to him before coming into the Chamber. I humbly apologise for any discourtesy.
I am grateful to the noble and learned Lord for going part of the way with us and agreeing that there is a point to be examined in so far as a power to direct the proceedings should not continue where the accused is a national of a state party. I could not for the life of me conceive of circumstances in which the Secretary of State would want to direct that proceedings should be discontinued in relation to a person who has no immunity because the state party has acceded to the ICC statute and has therefore waived all the immunities. It is therefore inconceivable that any circumstances could arise which would require the Secretary of State to think about exercising the kind of discretion he is given under subsection (4).
However, we go further and continue to insist that it is wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events which would take place if there were any dispute about the matter. The noble and learned Lord reaffirmed that there would always be consultations between the Secretary of State and the ICC and between the Secretary of State and the non-state party in order to ascertain, first, the fact that no waiver had been issued and, secondly, that the person had the immunity which he claimed.
The circumstances in which the Secretary of State would want to exercise his discretion would be that the ICC and the Secretary of State disagree on whether the accused had made out a case that he was a member of 20 the non-state party and had the immunities which he claimed. We say, and every non-governmental organisation which has examined the point has told the Government, that this is a matter for the ICC and not for the state concerned to which the request is made.
I am afraid that we must disagree about that and return to the matter on Report. However, I hope that it will be possible for us to engage in further conversations with the noble and learned Lord. I speak without the authority of my noble friend Lord Lester, but knowing his character as I do I am sure that he would prefer to resolve the issue by rational argument between us and the Minister rather than by a confrontation on the Floor of the Chamber. I am pleased to see the noble and learned Lord nodding his head.
On the assumption that we can continue to pursue the subsection (2) matter and with the assurance that the noble and learned Lord will look at subsection (1), I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Scotland of Asthal moved Amendment No. 74:
Page 13, line 12, at end insert
("(4A) The power conferred by section 1 of the United Nations Act 1946 (power to give effect by Order in Council to measures not involving the use of armed force) includes power to make in relation to any proceedings such provision corresponding to the provision made by this section in relation to the proceedings, but with the omission?
§ The noble Baroness said: Amendment No. 74 deals with the particular circumstance in which the ICC investigates a situation at the request of the United Nations Security Council. Any Security Council resolution passed under Chapter VII of the UN Charter would be binding on all UN member states. Such a resolution could include a provision that any indictee be arrested and surrendered to the ICC. Such an indictee might be a representative of a state which was not a party to the ICC, and a representative who enjoyed diplomatic or even state immunity. We would nevertheless be obliged to surrender that individual as a result of UN action, and this amendment gives us the power to do so. It provides for an order-making power under the UN Act. That power would be exercised on a case-by-case basis. Any Orders in Council would be put before Parliament in the same way as existing Orders in Council under the UN Act and, therefore, both Houses would have an opportunity to look at the matter.
§ This is an important provision to enable us to meet a possible obligation which would arise out of a future UN Security Council resolution. I am grateful to my noble friend Lord Goldsmith for drawing our attention to the issue at Second Reading. Amendment 21 No. 133 makes a very minor change to Clause 76 as a direct consequence of Amendment No. 74. I beg to move.
§ On Question, amendment agreed to.
§ 3.45 p.m
§ On Question, Whether Clause 23, as amended, shall stand part of the Bill?
§ Lord Lamont of Lerwick
I should like extremely briefly to make a couple of points. My concerns are very much at odds with what has been expressed and are very much in a contrary vein to the drift of the main argument. First, I should like to express my caution about the lack of discretion, rather than the concern, which has been expressed, about too much discretion. I have a certain amount of disbelief about the effective abolition of state immunity from representatives of government and heads of state. I have reservations about the desirability of that, and very considerable scepticism as to whether the law will be applied in that way. Are we really to believe that any Israeli head of state or Prime Minister will be indicted? Many people have harsh views about the newly elected Mr Sharon, but I am doubtful whether anyone would be so bold as to initiate proceedings against him which would have extremely inflammatory consequences in a tense situation. I suggest that, in reality, whatever may be the evidence in Chechnya about the behaviour of troops of the Russian Federation, no one would consider indicting Mr Putin. Whatever the appalling record of the People's Republic of China in Tibet, where according to some estimates deaths run into hundreds of thousands, again one can be sure that that will not happen.
Perhaps the Minister can tell the Committee how, if it does happen, we can expect diplomacy to continue. Will diplomacy take place only by electronic communication? Will it not take place on third party ground? What guarantees will there be for heads of state visiting the United Nations? The Committee will recall that attempts were made to indict both President Mugabe and Fidel Castro. According to some estimates, the latter is responsible for 30,000 deaths. There were attempts to indict Fidel Castro when he arrived in New York, but somehow nothing happened. I find it difficult to believe that anything will happen, but it does not seem to me that that is the impartial rule of law.
My second point is one that I have raised several times. I apologise to the Committee for not having been present at Second Reading. Although I studied the report of the debate in Hansard, I was unable to find the point addressed in the speeches of the Minister. I refer to the point that I raised twice on the first Committee day in relation to the resolution of conflict by domestic amnesties. Both then and today we had in attendance a charm of lawyers. It seems to me that it is possible to argue that the continuing development of international law poses a real threat to conflict resolution. Unless one believes that every internal conflict should be fought to the last soldier 22 and be resolved only through unconditional surrender, the automaticity that is upheld by enthusiasts for this Bill will mean that some civil conflicts will be longer rather than shorter.
One example of the kinds of contortion that a government might get into are the recent events in Sierra Leone. There the British Government pressurised President Kabbah's government to accept into coalition the RUF party, under the leadership of Foday Sankoh who, according to all accounts, had been guilty of the most appalling crimes, including the cutting off of children's limbs. In the interests of ending the civil war, after the Lomé peace the British Government were anxious to do as much as possible to bring about an end to the domestic conflict. As everybody knows, things did not work out like that. In the rush for the diamond and mineral wealth of the country, the civil war resumed and Mr Sankoh, in his second incarnation, ended up being branded a war criminal. But Britain had had very different thoughts the first time when I put it to the Committee that the evidence was no less than it is now that the most ghastly acts had been committed by his supporters and troops.
I give another example of the dilemmas that can arise. According to the electronic version of the Daily Telegraph for Wednesday 2nd February 2000, Mr Peter Hain, former Minister of State at the Foreign Office, who has been a warm supporter of the International Criminal Court and this Bill, made a speech in which he said that African countries should,offer Jonas Savimbi, Angola's rebel leader, safe passage [into] exile and immunity from prosecution for war crimes in an attempt to end the country's 25-year civil war".According to the report, the Minister of State was asked whether a man branded a war criminal by southern African states should escape prosecution. Mr Hain, who confirmed that he used these words, said:It is a matter for other African governments. But if the price of settling this devastating war … was to reach an agreement with Savimbi on where he had a future outside of Angola … all sorts of things become possible".I continue the quotation:I would say to him: 'If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that"'.I emphasise the words,'it would be possible to provide guarantees about. that' ".Far from being shocked by what the Minister said—in many ways that is entirely sensible—it seems to me that the logic of that is entirely at odds with the thrust of the Bill and the automaticity that is being urged in the so-called impartial application of law. I say "so-called impartial" because politics, political prejudice, fashion and mythology often intrude into views taken of conflicts. We delude ourselves if we think that politics can be entirely excluded from the resolution of such conflicts.
One might instance our own conflict in Northern Ireland which, viewed from another vantage in the world, might lead others to feel that perhaps we should 23 not have had some of the amnesties that have been granted. I might not feel that. I do not feel that. But I can imagine someone else taking a different view. In Northern Ireland we have had a de facto amnesty in order to hasten what we hope will be the end of the conflict. I am not concerned about too little discretion, but that there is not enough. When I put this matter to the noble and learned Lord the other day, he referred simply to the fact that the prosecutor had a degree of discretion. But that is vaguely defined. I put it to the Committee that there is a clear conflict between what is proposed in the Bill and the ending of some ghastly conflicts. Sometimes wars—civil wars in particular—are brought to an end only by politics, negotiation and offers of safe conduct for those who have been involved.
§ Earl Attlee
I remind the Committee that I have an interest. I have a simple question for the Minister. When we accept diplomatic credentials from a non-state party's diplomats will we be seeking a waiver under subsection 2(b)?
§ Lord Avebury
The noble Lord, Lord Lamont, raised a number of interesting examples. I wondered when he would come on to Chile. I was very disappointed that he did not refer to the possibility that, if the International Criminal Court had been in existence, some of the leaders of Chile could have been tried under those provisions. Equally, the other examples that he gave were ones which have happened in the past and do not fall to be considered under the Bill because the jurisdiction of the International Criminal Court is not retrospective. So whatever we may think, for example, about the desirability of prosecuting Mr Savimbi, who has undoubtedly committed, as the noble Lord said, a huge number of war crimes in Angola, that possibility is not open for us.
§ Lord Lamont of Lerwick
The point I was making does not relate to Mr Savimbi but to the general principle. There will be Savimbis in the future; there will be conflicts like the Angolan conflict in the future. I was not seeking to refer to an individual or an individual's situation but to a general principle exemplified by that and which I believe will occur in the future.
§ Lord Avebury
To pursue the example; Mr Savimbi would already have committed crimes under the ordinary law of Angola. He could be tried under that law. The previous example that the noble Lord gave, which is equally important, was that of Mr Foday Sankoh in Sierra Leone. Mr Foday Sankoh can be tried under the ordinary criminal law of Sierra Leone. I am not altogether clear why the Government and the United Nations consider it necessary to establish a special tribunal to deal with war crimes committed, as he said, in the most appalling civil conflict there, when they can be dealt with under ordinary law. The same applies to Chechnya. Chechnya is technically under the internal jurisdiction of Russia. Any crimes or war atrocities committed by the troops or by the forces of 24 the Chechnyan separatists could be dealt with in the normal course of Russian law. Similarly, there are other examples where domestic crimes are committed within the boundaries of a state.
There may be an argument—there has been an argument, as the noble Lord, Lord Lamont, says, in the past—for putting an end to a conflict by allowing a head of state or someone who is at a very senior level responsible for crimes that have been committed in that state, to go into exile. The two examples that occurred to me as the noble Lord was talking were Idi Amin and Mengistu in Ethiopia. But if one thinks about that latter example, there have been quite a few trials instituted by the newly elected government of Ethiopia. Under their ordinary law they have dealt with the people who committed atrocities under Mengistu and he is the only one that escaped. Therefore, if one is saying that it is desirable, from the point of view of putting an end to a conflict, to let the person at the apex of the tyranny and the repression go into exile and live a comfortable life in Saudi Arabia or Zimbabwe while all the underlings who have committed the atrocities while subject to his orders are to be tried, one must disagree with the noble Lord, Lord Lamont. It is surely desirable that we have on the International—
§ Lord Lamont of Lerwick
Can I put the moral choices to the noble Lord another way? Suppose a war has reached a virtual stalemate. It has gone on for a decade. The only prospect is continuing casualties on both sides. Is it better to fight to the last man until there is no one left or to have a negotiated settlement, which would be impossible under the Bill?
§ Lord Avebury
If one looks at the cases that we are discussing that would not have happened. I believe that Mengistu was on his last legs at the time when, under American pressure, the Zimbabweans agreed to accept him. Furthermore, in the case of Uganda, Amin would have fallen after the Tanzanian invasion. It made very little difference that he was allowed to go into peaceful exile in Saudi Arabia. Unless the noble Lord can show that letting these dictators off scot-free in the past has been helpful in saving thousands of lives, I do not believe that he has a very good argument. I go further than that and say that if the provision that removes immunity from all officials, including heads of state, of state parties was not in the statute, we should not have the deterrent effect. The whole point of the statute is not simply to bring people to trial for these horrible offences, but to create a powerful deterrent which will stop the offences being committed in the future. If the person at the top believes that he will escape scot-free by having such an immunity—
§ Lord Lamont of Lerwick
Perhaps I may put another case. Would it not be in the interests of the people of Cuba if the president of Cuba stood down? But how is the president of Cuba likely to stand down when he might face prosecution for crimes committed in his own country?
§ Lord Avebury
The whole point that I was trying to make to the noble Lord is that these people—Castro, Savimbi, and so on—are not subject to proceedings under the International Criminal Court anyway because the atrocities that they have committed are in the past and swept into history. It is only crimes committed by Mr Castro or Mr Savimbi after the statute came into force with the requisite number of signatories that will be subject to the jurisdiction of the court. So, while the noble Lord has made an interesting point about the immunity of heads of state, it is not one that we have to consider under the Bill. The Bill only brings into effect the provisions of the International Criminal Court Statute. The International Criminal Court Statute says that there will be no such immunity and it would be impossible therefore for us to make any provision in the Bill which does not agree with that.
§ The Earl of Onslow
When we were last in Committee the noble and learned Lord, Lord Williams of Mostyn, met me on the stairs and said that no hereditary Peers were taking part in the debate. I noticed that the noble Lord, Lord Avebury, was. I shall now disabuse him. I shall disabuse him because of what my noble friend Lord Lamont has said. I shall put the issue in a long and historical context.
The essential point is to stop punch-ups. When Charles came back to this country he realised that there had been social upheaval and crimes committed by both sides. Because he never wanted to go on his travels again he determined that as much as possible should be forgotten and forgiven. Incidentally, that is why I still own my small property in Surrey. So I am extremely pleased with Charles II.
Having said that, he recognised that civil war—punch-ups—always involve horrors. It is essential to allow people to get away and escape to stop the continuation of those punch-ups.
The French in 1815 did not learn that lesson. I suggest that, in some ways, the Allies in 1918 did not learn the lesson of a gentle peace. It is no good the noble Lord, Lord Avebury, referring to Mr Castro. Is it not lovely how criminals and dictators are always called "Mr", but if someone is nice and pleasant he is always called by his Christian name by the media? That is one of the supreme ironies. Mr Castro is not going to be tried for anything retrospectively. If he did do something nasty, he would be tried for that.
However, we have to live in the real world. I am not defending the nasties, but we know that they exist. It is the nature of the conflict of mankind. If we want to get rid of the nasties, we must exorcise the poison. That frequently means letting very unpleasant people live in villas in the south of France on ill-gotten gains, which have probably been paid for by taxpayers in Scunthorpe, Washington or Paris, and which have been siphoned off into Swiss bank accounts. We have to swallow our disgust at their behaviour and say that it is better for that to happen, as my noble friend Lord Lamont says, than that the slaughter continues. We should bear in mind the fact that we sometimes have to accept that, and that is why I am sympathetic to what my noble friend said.
§ 4 p.m.
§ Lord Archer of Sandwell
Before the noble Earl sits down, does he agree that it is very easy to bear the sufferings of other people in a forgiving spirit?
§ The Earl of Onslow
I quite understand that, and I equally understand the serious moral dilemma involved. We have to weigh the balance between ending something by getting the nastiness out of the way and holding our nose and thinking that although we do not like the man, we would rather that he lived in a villa in the south of France than that the slaughter should continue. I accept what the noble and learned Lord, Lord Archer, says because I know that he is a great fan of human liberty, for which I admire him. I hope that I am as well, but occasionally one has to hold one's nose in its defence.
§ Lord Hurd of Westwell
I had not intended to speak in the debate, partly because this is a detailed clause and partly because I could not attend at Second Reading for which I was unable to apologise. In view of the way in which the discussion has evolved in the past 20 minutes, I want to add a word of sympathy for the basic point that my noble friend Lord Lamont raised. On several other quite important matters, I do not agree with him, but I share instinctively some of his concerns on this matter.
Quite often, there is a tension between peace making and justice. My noble friend gave some examples of that. The noble Lord, Lord Avebury, said that such examples related to the past. My noble friend was trying to project the dilemmas into the future by asking how we would handle these events if they happened again. Therefore, his remarks were legitimate.
I would add South Africa to my noble friend's list of examples. Serious offences were committed there, and the people against whom they were committed—to refer to the point made by the noble and learned Lord, Lord Archer—decided not to proceed down the road of investigating and punishing crimes, although the allegations were serious and terrible and fell within the scope of what we are discussing. Instead, they set up a truth and reconciliation commission, with Archbishop Tutu as its chairman and Nelson Mandela as one of its authors, because they believed that that was a better way of securing the settlement of harmony in the rainbow nation. Most people thought that that was right and that it would have been wrong if one of those against whom allegations were made had turned up in London, Paris or Washington and had been arrested and brought before an international court when the judgment of those in the newly democratic South Africa was to have a different procedure.
My main worry about this whole concept is a slightly different one. We argue all the time in this House about matters of policy, and ethical foreign policy, which is a perfectly legitimate argument. Most of us accept, however, that in matters of policy there must be room for disagreement—even illogicality. In relations between a country like ours and the rest of the world, we cannot be expected to be completely consistent in everything. The moment that we begin to 27 shift, or claim that we are shifting, on matters of policy from the discretion of Ministers or parliamentary control to matters of law, we are trying to elevate discussion to a different level. If law is to be valid and valuable, it needs to be impartial and universal. Unfortunately, that concept, coming out of the Rome treaty, is unlikely to be either. It will affect those who are useless from a point of view of diplomacy, those who are defeated and those who are weak. It will not touch those who are powerful and continue to be important players in the world of diplomacy. In policy, we have to make these discriminations, awkward though they may be. Once one begins to talk about international law, one has to achieve a higher degree of impartiality than we shall do under the treaty or the Bill.
§ Lord Stewartby
I want to add the briefest of footnotes to what my noble friend Lord Hurd has said. The dilemma between peace and justice has arisen, and continues to arise, in Northern Ireland, as my noble friend knows—probably better than I do. It is with us in many circumstances and is likely to continue to be so. Such dilemmas are inherent in these situations before they can be resolved.
§ Lord Howell of Guildford
This debate on clause stand part has predictably expanded into a debate about one of the most important dilemmas in the Bill. The issue has been rightly raised, as it has been before and will be again. I shall certainly raise it at Report stage. The issue is about the danger of confusing matters of politics with matters of law, and the resulting confusion. In answer to the interesting excursion into 17th century history of my noble friend Lord Onslow, I recall that some of the regicides were brought to justice, although I am sure that the balance and reconciliation that my noble friend called for were also present, as well as a bit of shrewd politics.
The debate and the earlier discussion on the amendment relating to citizens of states parties highlights that there is something of a major loophole in the structure of the Bill. It is a loophole through which our country may not seek to leap but through which other countries can be imagined leaping only too eagerly. At Report stage we shall have to examine the matter much more closely to be satisfied that, in the light of the broad aim of having a better means of catching international monsters and perpetrators of atrocities, we have the right legislation on our statute book to achieve that. There seems to be a doubt over the matter at the moment.
§ Lord Williams of Mostyn
I have to remind myself that in the interests of economy we are in Committee rather than having a Second Reading debate. I know that the noble Lord, Lord Howell, has recognised that. I shall deal with a few of the matters because I know that Members of the Committee regard them as important.
We need to bear in mind the fact that the Government have signed the statute in company with a large number of other countries. We hope that that 28 number will increase. The purpose of the Bill is to implement the statute. I take on board fully, and respectfully, the points made by the noble Lords, Lord Lamont and Lord Hurd. Essentially, we have a philosophical difference about how to go forward. I respectfully suggest that that question has been resolved by our signature to the statute.
What we are doing through the Bill is seeing whether, mechanically, we are producing appropriate legislation to give effect to that statute. I take the point about high state policy. It is true, as the noble Lord, Lord Avebury, said, that many of the illustrations given are to be met with the proposition, which he put, that this is not retrospective. It is equally true that one can extrapolate that type of example for the future, as did the noble Lords, Lord Lamont and Lord Hurd. In answer to the general questions of the noble Lord, Lord Lamont, I would say that we do not have a perfect system whereby the mighty are brought to justice for their wicked cruelties, though we do have systems of justice that punish individuals. That is the philosophical step that we are engaged on.
It is true, I dare say, that in the future we will not find all experience of the statute, when ratified into law, perfect on every occasion. The stance that we adopt—I hope that the Opposition will adopt the same stance—is that this is a distinct improvement on what presently is to be found. It is intended to deter for the future. That point, which I endorse, was made by the noble Lord, Lord Avebury. It is intended to say to those who are powerful people, sometimes in extremely powerful countries—I take the point made by the noble Lord, Lord Lamont—that they will not necessarily be safeguarded for ever. The noble Lord mentioned the People's Republic of China. It is a matter for it to decide whether to sign and ratify. It is a matter for the state of Israel to decide whether to sign; and if it does, whether it wishes then to ratify. But, having taken those two steps with all due deliberation, none of them should think that their subsequent leaders or present leaders for subsequent offences are liable to go unpunished.
That is a significant step forward. On this side of the Committee and in other parts of the Committee we rejoice in it. We do not pretend that it will be simple. But once upon a time—I am sorry to be as historical as the noble Earl, Lord Onslow—the barons were not tried by juries; and once upon a time the clergy were not tried by juries. I am sorry that the noble Lord, Lord Howell, corrected the noble Earl, Lord Onslow, about the regicide. I frequently take visitors to see the death warrant and have noticed that many of the signatories were indeed Welsh. If it is said that after the restoration all was sweetness and light, I must send a postcard to the Duke of Monmouth.
§ Lord Williams of Mostyn
I said "after the restoration". In the Onslow saga I suppose the most definitive argument is that the noble Earl is still the possessor of land and therefore we should do nothing that might interfere with his peaceful enjoyment of it.
29 There is no ducking this question. The noble Lord, Lord Lamont, was right to raise it and the noble Lord, Lord Hurd, was right to endorse it. We recognise the difficulties but we believe that this is the way forward. It is a step of high policy. At the moment we are engaged in seeing to the difficulties and intricacies of putting that decision into legislation. In answer to the noble Earl, Lord Attlee, it would not be necessary to ask for a waiver when credentials were delivered. It would be a matter for subsequent investigation.
Contrary to my own self-instruction, I have spent a little time on Second Reading matters as I thought it was appropriate to do so. I hope that the noble Lord, Lord Lamont, will not insist on his opposition to Clause 23 standing part of the Bill.
§ Clause 23, as amended, agreed to.
§ Clause 24 [Delivery up of persons subject to criminal proceedings, &c.]:
§ On Question, Whether Clause 24 shall stand part of the Bill?
§ 4.15 p.m.
§ Lord Lamont of Lerwick
Perhaps I may ask one question about Clause 24, which introduces Schedule 2. How will the provision apply to United States servicemen? We have already had a discussion about how the Bill affects diplomatic immunity in respect of non-state parties. Can the noble and learned Lord confirm that the effect of the Bill will be that even though the United States does not ratify the court, the servicemen of the United States could still be arrested and tried by the court if found on some third party territory? Will he confirm that they could be arrested and could be put on trial before the International Criminal Court? Is that not one of the major concerns of the US Administration and one of the reasons why the court is unlikely to be supported in the end by the United States?
§ Lord Williams of Mostyn
I shall need to have precise details about the circumstances being posited by the noble Lord. At the moment individual servicemen are liable if they commit offences in foreign territories. That is the present state of the law. There have been notorious prosecutions in that regard. I really do not know what the ultimate attitude of the United States Government will be. All I know is what the noble Lord knows, which is that the former president signed. It is a matter for the US Congress to ratify.
§ Lord Lamont of Lerwick
I am sure that the noble and learned Lord would wish to make it clear to the Committee that even President Clinton, who signed the statute in his last days when he was doing a good many other controversial things, thought that the court needed to be amended to safeguard American personnel—and without that it could not be ratified.
§ Lord Williams of Mostyn
As I have said on earlier occasions, the statute is not capable of being amended in the way suggested by the noble Lord. My understanding of the United States constitution—the 30 noble Lord will recognise this—is that both Houses of Congress would need to ratify. Present indications are that that is less rather than more likely. But I am perfectly happy to correspond with the noble Lord about any points of particular detail.
§ Lord Avebury
Perhaps I may try to assist the noble Lord, Lord Lamont, by referring him to Article 17.1(b), under which a case may be ruled inadmissible if it has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned. In the circumstances referred to by the noble Lord where a United. States serviceman is accused of some offence in a third jurisdiction—a future Somalia, as it were—the military authorities of the United States would investigate any allegations that crimes had been committed by their servicemen. If they found that there was a case to answer, they would prosecute the servicemen by means of their military courts. If they decided that there was not sufficient evidence to justify a prosecution, that would equally be grounds for saying that the case was inadmissible in proceedings before the International Criminal Court. They would then notify the International Criminal Court that they had examined the allegations against the servicemen, had found that there were not sufficient grounds for prosecution and had not gone ahead and were therefore requesting that the court treat the case as being inadmissible in its jurisdiction.
§ Lord Burnham
It might be for the benefit of the Committee if an appropriate amendment were brought forward on Report. The noble and learned Lord might then be able to study the situation and provide a slightly more conclusive answer.
§ Lord Williams of Mostyn
I am certainly happy with that. I think that one needs to be quite particular about the answers one gives to questions. I am perfectly happy to do that. In some circumstances, the answer of the noble Lord, Lord Avebury, would be correct. In other circumstances, there might he alternative criminal proceedings to be taken against United States servicemen. But answering general questions and trying to be specific does not help anyone.
§ Clause 24 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.