International Criminal Court Bill [H.L.]

HL Deb 12 February 2001 vol 622 cc102-32

House again in Committee.

Clause 52 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:

[Amendments Nos. 112 to 114 not moved.]

On Question, Whether Clause 52 shall stand part of the Bill.

Lord Lamont of Lerwick

Can the Minister give a brief explanation, particularly of that part in the Explanatory Notes stating that, it will be an offence under this clause to incite, in England and Wales, the commission of genocide by a non-UK national overseas". Why is it necessary to have this provision? What gap is it aimed at? Why do some of our existing laws on incitement not cover that matter? Can one have genocide by a non-UK national overseas in the singular? Some explanation would be gratefully received.

Lord Williams of Mostyn

One could have incitement by a single person or persons of a single person or a number of persons abroad. The provision deals with a new situation, which is that criminal offences are brought into judicable effect by the statute, if it is incorporated by the Bill.

Lord Lamont of Lerwick

But can there be genocide by a single person?

Lord Williams of Mostyn

It is certainly possible, although I accept the noble Lord's underlying proposition that it is unlikely.

Clause 52 agreed to.

Clause 53 agreed to.

Clause 54 [Offences in relation to the ICC]:

[Amendments Nos. 115 to 118 not moved.]

Lord Howell of Guildford moved Amendment No. 119: Page 26, line 22, at end insert? (?( ) The courts shall have no power to grant an injunction or other interim relief against the Crown, its agents or any member of Her Majesty's armed forces in respect of an offence or ancillary offence.?).

The noble Lord said: Amendment No. 119 is a probing amendment. It seeks to safeguard against a particular possibility which could arise in domestic courts under the new legislation. Ministers may say that this is not the perfect place in the Bill to have the amendment. But it is hard to find any place to fill the particular hole we believe we have identified. We are concerned to ensure that there is no scope for domestic courts to interfere in current or potential operational matters or to be so moved to bring injunctions, or to feel impelled to bring injunctions, to stop the Armed Forces pursuing activities which they say are of a political nature. I have in mind injunctions that seek to prevent the Armed Forces operating in any way connected with nuclear weaponry. If that sounds far-fetched, it is a matter of record that the Scottish devolved Parliament is about to consider the legality of nuclear weapons.

I am advised that back in 1996, the international court of justice gave an opinion that all nuclear weapons were illegal. It is possible to think of a range of injunctions that active people, with a strong political case to press, might bring against the Armed Forces who were seeking to carry out their normal duties, or who were about to go into a military action required by international peacekeeping interests or engaged in the pursuit of national interests.

If the amendment is rejected, may we at least have an explanation as to why the possibility of an injunction is left in place in the Bill, given the new crimes that we are placing on the statute book? I am told that under English criminal law, courts have an inherent jurisdiction to issue injunctions to prevent threatened criminal offences. If something that hitherto was not regarded as a criminal offence, or identified as such, now becomes a criminal offence, how can we ensure that groups do not engineer injunctions, which interfere with the proper pursuit of national and security interests and the work of the military? I beg to move.

9 p.m.

Baroness Scotland of Asthal

Clause 54 seeks to implement Article 70.4 of the statute, which extends existing offences against the administration of justice to cover the administration of justice of the ICC.

I confess to being somewhat perplexed by Amendment No. 119 as it purports to exclude any injunctive relief in respect of a possible offence committed by Her Majesty's forces. While we do not accept that such a remedy would lie, the amendment has no place in a criminal law statute of this kind. It is a matter for the civil courts. I hope that the noble Lord will not seek to press his amendment.

The Government remain confident that our entirely defensive minimum nuclear deterrent is consistent with international law and consequently there is no question of military personnel and civilians engaged in support of the United Kingdom's nuclear capability acting illegally or being in breach of the Nuremberg principles.

Lord Howell of Guildford

I thank the noble Baroness and ask whether her final comment, which is reassuring, will be placed on the record as a declaration or interpretative note? Will it be placed on the record on the ratification status or made explicit in some other way? The noble Baroness will know that the Republic of France has done precisely that, and that other countries are also concerned about the matter.

I fully accept, as I said, that this is not the ideal place to make the point, but in probing the Government's views I was anxious to have the assurance that such injunctions, which are not unknown, and which may not be unknown in the future, are ones that the courts will not readily grant, merely because new crimes have been added to the statute book. That assurance is fair enough, although I do not know whether it will be enough for people outside. On the question of defence for military operations that could involve things that are now described under the appropriate schedules to the Bill, it is reassuring to have the certainty that there will not be injunctions or court interference of any kind. May I ask the noble Baroness to answer my one question on the declaration before I seek to withdraw the amendment?

Baroness Scotland of Asthal

I hope that I have said as clearly as I can that we shall certainly consider whether a declaration is appropriate. I reassure the noble Lord that our understanding is as I have outlined.

Lord Howell of Guildford

In the light of that reassurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Schedule 9 agreed to.

Clauses 55 to 57 agreed to.

Clause 58 [Genocide, crimes against humanity and war crimes]:

[Amendments Nos. 120 to 122 not moved.]

Clause 58 agreed to.

Clause 59 [Conduct ancillary to genocide, etc. committed outside jurisdiction]:

[Amendments Nos. 123 to 125 not moved.]

Clause 59 agreed to.

Clauses 60 to 64 agreed to.

Clause 65 [Responsibility of commanders and other superiors]:

Lord Howell of Guildford moved Amendment No. 126: Page 31, line 10, leave out from ("or") to ("that") in line 11 and insert ("consciously disregarded information which clearly indicated").

The noble Lord said: Clause 65 sets out the responsibilities of commanders and other superiors who are held responsible for offences committed by forces under their effective command and control. The clause introduces an additional form of criminal culpability and responsibility; namely, that of commanders and superiors for the acts of their subordinates. I understand that the wording of the clause is taken from the Rome Statute and therefore, given the way in which the Committee stage has gone, that the Government line on any changes or improvements to the interpretation of the Rome Statute will be a resistant one. Nevertheless, our amendment seeks to change Clause 65(1)(a) by removing the words, or owing to the circumstances at the time, should have known".

By removing those words, we are seeking some protection for the Armed Forces going about their legitimate business, which may include, internationally, the use of force. As I said at the beginning of the Committee stage, we must avoid criminalising that in all cases, as that would be to the vast advantage of the world's tyrants and perpetrators of atrocities whom we are trying to bring to justice.

The problem as usual is one of subjectivity. It is easy with hindsight to say that a commander under the circumstances at the time should have known. What is the test? What is he supposed to have known? How should he have known it? As is stands, the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event, presumably by the investigatory branch and the prosecutor of the International Criminal Court. If something really horrible happened, as does happen in times of violence and force and is happening all round the world, it might well be in the ambit of debriefs, international investigations and perhaps even court martial. However, can we be sure that the ICC, which may not understand the details of military action and the pressures that operate during a military action, will know the ways of armed forces and be able to apportion blame to a commander because of what he should have known in the circumstances of the time? It may well be that he ought to have known very many things. But let us suppose that a radio failure cut him off from what was going on. How would the court seek to establish the truth of complex circumstances like that?

We have here yet one more example of a matter that concerns those of us who want to see perpetrators of atrocities brought to justice and yet fear that we may be creating a web which will catch some innocent people and a set of conditions that will be politically distorted and used as devices for score settling and vexatious charges and investigations. We have been told throughout the Committee stage that these matters can be held at bay. Indeed, it seems that we have not only belt and braces but the powers for the Secretary of State to turn down any investigation or any proposal from the ICC that it should inquire into anything. That seems to have been the purport of some of the assurances given earlier, which we shall certainly need to examine when we come to the Report stage. In the meantime, we feel that an amendment of this kind would at least relieve one of the concerns—it is a strong concern—felt among the Armed Forces who want to go about their business in a legitimate, sensible and responsible way but where it is possible that they may be involved in ugly developments which could not have been avoided and which may now become the subject of an investigation, a warrant and a prosecution. That cannot be a right ambience in which to continue to conduct a balanced approach to international relations, which ideally should involve diplomacy but may, sadly and inevitably, involve force. I beg to move.

Lord Lamont of Lerwick

Perhaps I may go a little wider than the amendment because I have given notice of my intention to oppose the Question, That Clause 65 stand part of the Bill. If we deal with the points more generally, it will not be necessary to have a debate on clause stand part.

I regard the concept of command responsibility as being at the heart of the Bill. I raised the issue with the noble and learned Lord on the first day of Committee. When I raised the question of its being subjective, he implied that it was not subjective and said that it could be proved directly in an illustration or might he proved structurally. It is to that response that I wish to direct my remarks.

It will not surprise the Committee if I say that I became interested in the concept of command responsibility in the case of Senator Pinochet. A number of allegations were made about what happened in various parts of the country, as well as what happened in certain police stations. However, in the proceedings before the British courts, no evidence was produced in the sense that the person in question—the accused—had any knowledge of or had issued orders in relation to those particular crimes. Reflecting on that, it seems to me that this is an extremely important point of principle in relation to crimes against humanity and war crimes.

An interesting illustration of this has arisen recently and I should be grateful if the Minister could comment on this directly. We have had the trial of the Lockerbie bombers, one of whom was found guilty while the other was acquitted. However, what was interesting about that case was that the doctrine of command responsibility did not apply. If someone planted a bomb on an aircraft in order to sabotage it and kill people because he was a member of the Libyan secret service, is it remotely conceivable that this was done without the order of the Libyan head of state? Yet the British Government have used the device of the trial as an excuse to enable them to resume diplomatic relations with Libya. If the Government really believed in the concept of command responsibility, then I suggest that they should have adopted a rather more robust attitude towards the resumption of diplomatic relations with Libya. It is difficult to believe that an act of that kind, if it were committed by Libyan secret service personnel, could possibility have gone ahead without the connivance and agreement of the head of state.

More generally, the whole idea of command responsibility is rather dangerous and has to be balanced against the needs of justice. It is all too easy for it to be capable of a rather expansive interpretation. Certainly, anyone who commands his troops or subordinates to commit criminal acts, or who knowingly fails to discipline his troops, or to take corrective measures, should be held criminally responsible. But one ought to secure evidence that command responsibility actually involved some explicit or implicit command. The fact that someone structurally—that was the word used by the noble and learned Lord the Attorney-General—was in charge does not make him criminally liable for the actions of his subordinates any more than it would make Mayor Rudolph Giuliani criminally responsible for the occasional abuses of the New York Police Department.

As the Attorney-General pointed out, this issue arose after the Second World War. The United States Supreme Court was asked to consider such a question in January 1946 in the case of General Tumoyuki Yamashita, the defeated commander of the Japanese forces in the Philippines. It is beyond doubt that those forces had committed numerous atrocities as the war drew to its close, but no specific evidence was produced to implicate General Yamashita in any of those events. Despite that, he was found guilty, based on what was then the novel responsibility of command responsibility. He was sentenced to hang by an American military tribunal and was then executed.

Despite the fact that he had clearly been denied the rights guaranteed by the Fifth Amendment to all defendants before the US courts, the Supreme Court upheld his conviction. However, a dissenting opinion was voiced by Mr Justice Frank Murphy, who remarked that, when it came to matters of due process, the horror, the scale, the emotion that surrounds such atrocities did not, justify the abandonment of our devotion to justice in dealing with a fallen enemy commander". He went on to argue that: To conclude otherwise is to admit that the enemy has lost the battle but destroyed our ideals. Stark retribution will be free to masquerade in a cloak of false legalism".

Lord Avebury

Perhaps the noble Lord, Lord Lamont, will tell us whether in that case the general should have been aware of the circumstances of the crimes, which, if I remember rightly, continued over a period of time. Although he might not initially have been aware that the subordinates intended to commit such offences, as time went on and it became obvious to him that they were committing the offences, at which time the second leg of the statute would come into play, did he take such measures necessary to put an end to the crimes being committed under his command?

Lord Lamont of Lerwick

I do not know. I was not in the court room. I can only repeat what Mr Justice Murphy said about the case, and I know that others have held a similar opinion. I suggest to the Committee that, without concrete proof, there is a very real risk of injustice being done. It is very easy to say, "He should have known". It is also easy to imagine the circumstances even though one was not there. A commander might not know everything. It was certainly the opinion of Mr Justice Murphy in the United States that justice was not done. I should feel happier with this statute if more emphasis was placed on concrete proof rather than the somewhat slippery words, "should have known", which are very easy for anyone to adopt.

Earl Attlee

I remind the Committee that I have an interest. I strongly support this amendment. There is much concern in the Armed Forces, particularly at a high level, about some of the potential undesirable effects of this legislation. The fog of war clears very rapidly after the end of an incident.

I fully accept that commanders have an important role to play in these matters. They are particularly responsible for maintaining a high level of leadership and training in their units in order to minimise any possibility of operations going wrong. However, I should like to ask the Minister to what extent she expects commanders to compromise the possible success of an operation in order to ensure that no offences are committed.

Baroness Scotland of Asthal

I deal first with the point made by the noble Earl, Lord Attlee. I can reassure him that it is not proposed that commanders should compromise the success of operations. However, it is imperative that they behave honourably and properly within the confines of the law.

I understand the concerns and anxieties that have been expressed about this clause. However, I should like to allay the fears that may exist in relation to it. I appreciate the desire of noble Lords to ensure that we carefully and fully consider provisions that affect service personnel. I should like to reassure noble Lords that we have done that.

Clause 65 makes a military commander responsible for offences committed by forces under his command and control as a result of a failure to exercise proper control, and a superior responsible for offences committed by subordinates under his control, subject to specified conditions. That provision, which is taken directly from Article 28 of the ICC statute, embodies an established principle of international law, designed to reflect the hierarchical structure of disciplined forces. There is nothing new about the concept; it is known, tried and tested. In international law, the principle of command responsibility has been used in war crimes trials since Nuremberg. In this clause we have deliberately reproduced the language of Article 28, because it is important to us that the provisions of this subject should exactly mirror the Rome Statute.

As I have already said, we do not want a divergence between the jurisdiction of the courts of the United Kingdom and that of the ICC in relation to these crimes. We want to make absolutely sure that we can try British military personnel, including, if necessary, commanders, rather than leave room for the ICC to be able to say, "We were unable to try them" and for the ICC to take jurisdiction. I am quite sure that the Members of the Committee opposite would not like that to be the case.

Turning to the issues raised by the noble Lord, Lord Lamont, I should remind him a little of the history in relation to Lockerbie. He will recall that diplomatic relations were not broken off as a result of Lockerbie; they had already been broken off with the country in question because of the death of Yvonne Fletcher. The two incidents were not connected. Indeed, diplomatic relations is not a mark of approval or a reward for good behaviour.

The noble Lord inferred that command alone could be sufficient for a military commander to be held responsible. Article 28 and Clause 65 require more than mere command alone. They require—I paraphrase—the effective command and control where the military commander either knew or should have known that his or her forces were committing or about to commit an ICC crime, and the military commander failed to take all reasonable measures within his or her power to prevent or repress commission, or to submit the matter for investigation and prosecution.

The noble Lord raised the celebrated case of Yamashita, which involved, as he rightly said, brutal atrocities. I think there were 123 in total listed in the charges, which were committed by troops under the command of the General while he was military governor of the Philippine Islands. I think it will assist the Committee to hear what Mr Chief Justice Stone said in delivering the majority decision of the US Supreme Court on the question of command responsibility. He said: The question is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specific acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violation; result … It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose … would largely be defeated if the commander … could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war commanders who are to some extent responsible for their subordinates". If I may respectfully say so, we are treading very well oiled boards that many have trodden before us. I invite the Committee to say that this matter is properly covered. The amendment as drafted would undermine the goal that we all have jointly in this regard and would reduce our chances of being able to take advantage of the complementarity provisions. I am sure that this is not the intention of noble Lords opposite. I hope that in the light of this assurance, the noble Lord will not press the amendment.

Lord Howell of Guildford

The noble Baroness argues that we are treading well oiled boards and refers to war crimes trials in the past. Reference is often made in this context to the Nuremberg trials. Of course, the Nuremberg trials were what some people call "victor justice". They were, indeed, trials of the most horrific crimes committed by and under the command of some of the people who were charged at Nuremberg, but it was the justice of the winning side against those who had lost the war. That has applied to a number of other war trials since.The noble Baroness says that these arguments are "well oiled boards", and that there is nothing new that should concern us—

9.30 p.m.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. Do I understand him to say that the principles of international justice that were formulated by the international military tribunal in Nuremberg for the trial of Nazi war criminals were not generally recognised principles in all civilised states, but that they were somehow victor's justice and were therefore partial?

Lord Howell of Guildford

No, the noble Lord is not to understand that. He is to understand that some people have made that comment and I am repeating it. That is obviously not the general view.

Lord Lamont of Lerwick

Will my noble friend allow me to intervene? Will he make the point to the noble Lord, Lord Lester, that the Nuremberg authorities and the Nuremberg trials were not an international court in any sense; they were the duly constituted sovereign authority of Germany?

Lord Howell of Guildford

I am grateful to my noble friend for elucidating that matter.

To say there is "nothing new" in the situation that we are addressing tends to bypass two elements that are indeed new. The first is that we are introducing new crimes on to the statute book of the United Kingdom. The second is that, should the Bill become law and should the appropriate number of countries ratify the Rome Statute, we shall bring into being a permanent court which will be ready to step in.

I totally accept the need to have in place the machinery to hunt down and bring to justice the butchers and perpetrators of atrocities around the world who have gone free. That will be a difficult enough task. However, the new situation is not the same as that of past war trials, whatever the debate about their status. We should be blind not to recognise that new fears and worries need to be allayed in the ranks of the military and among those who believe that they carry out difficult tasks. In the heat of war things are done which may be profoundly regrettable. Now, we should be entering into a complicated and highly subjective debate about situations involving the tragic death of civilians, or an over-reaction in terms of violence against violence or some counter-measure against snipers who have slaughtered a soldier standing beside other soldiers. Tempers can fray.

In a mild, modest and inadequate sense, I have talked to soldiers in Northern Ireland who have just lost a companion, slaughtered by a sniper. The need for restraint is very great indeed. The feeling of these lads is that one of their people has been unnecessarily cut down, and the revenge impulse is very strong. It can be contained, but sadly that does not always happen. In such circumstances, where does the commander stand? Is he or she now to be indicted if something terrible is done, or can it be handled through the processes of the court martial? All these questions are in the minds of the military. To ignore them or to say that there is nothing new here is not the right way to proceed in terms of the reassurance that is needed.

If the reply given by the noble Baroness is all that she can offer at this time, we shall certainly want to return to the matter on Report. We have not received the assurance that we need in order to see not only that the guilty are brought to justice, but that the innocent and those who are servants of the state are properly protected. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 agreed to.

Lord Howell of Guildford moved Amendment No. 127: After Clause 66, insert the following new clause—

DEFENCE AGAINST UNLAWFUL USE OF FORCE

(".—(1) A person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for survival of the person, or another person, or property which is essential for accomplishing a military mission, when he acts against an imminent and unlawful use of force in a manner proportionate to the degree of danger to that person, or the other person, or property protected.

(2) A person may rely on the above defence if he can establish, on the balance of probabilities, that he was acting as part of a defensive operation and/or there was a necessity to act in this way.

(3) It shall be a defence, to any allegation under the ICC Statute, that the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been"

1. (a) caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person, or another person, and
2. (b) the person acts necessarily and reasonably to avoid this threat.").

The noble Lord said: This amendment is also moved with the intentions and actions of our Armed Forces very much in mind. The purpose of the amendment is to create a defence against what would otherwise be an unlawful use of force, or one that might be alleged to be unlawful. It would allow a person to defend himself, or others, or property, if it were, essential for accomplishing a military mission". There are many obvious examples of this that we could list. Subsection (2) of the amendment sets out the defence; namely, on the balance of probabilities, which, as I understand it, is the test for any defence in criminal law.

Subsection (3) of the amendment also creates a defence as regards an allegation under the ICC statute regarding a person's conduct. The defence of "duress" from imminent death or imminent serious harm is created. Thereafter, paragraph (b) refers to a person acting, necessarily and reasonably to avoid this threat".

As I said, we have the concerns of the Armed Forces very much in mind in this amendment. It cannot be right not to have available the defence of defending oneself, or others, in what would otherwise be judged by the ICC as an unlawful use of force. I beg to move.

Lord Lester of Herne Hill

The Bill does not incorporate the definitions in the ICC statute of "self-defence" or of "duress" into domestic criminal law. As I understand it, that is left to English law, which is probably a wise judgment. It is important to ensure that the Bill does not produce definitions of "self-defence" or of "duress" that are inconsistent on their face with what is contained in Article 31 of the statute.

By way of these amendments, the Conservative Front Bench has managed to secure a double violation of the definitions in Article 31. In the first place, when "self- defence" is defined in the amendment, the words that one finds in the tail-piece of Article 31(1)(c) are omitted. Those words read: The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph". The noble and learned Lord the Attorney-General will correct me if I am wrong, but my view is that the words of Article 31.1.(c) are exactly the same as the position under English law as it stands; in other words, a person could not successfully plead self-defence merely because he was involved in, a defensive operation conducted by forces". Therefore, if I am right, by omitting those words from the definition in the amendment, there is a conflict both with traditional English criminal law and also with the definition in the ICC statute.

The Conservatives then make the same mistake when they come to define the word "duress". Again, the definition falls short of what the statute defines in Article 31 because the statute's defence is subject to a limitation that is ignored by the amendment. The statute's defence can only be exercised where, the person does not intend to cause greater harm than the one sought to be avoided"— a kind of principle of proportionality. Again, unless I am much mistaken, that concept would be well recognised in English criminal law in relation to the defence of duress. Therefore, both because it is inconsistent with the ICC statute and also because it is not on good "speaking terms" with traditional English criminal law on the defence of self-defence and on that of duress, we oppose these amendments.

Baroness Scotland of Asthal

I say once again that I understand the nature of the concern expressed by the noble Lord, Lord Howell. I also understand that by seeking to introduce two defences to the allegation that an ICC crime has been committed, he does so with the purpose of being helpful.

However, I reassure him by saying that the defences which are currently available under our law will also be available in cases where there is an allegation that an ICC' crime has been committed. The noble Lord, Lord Lester, is right to say that these issues are covered by our law. This is made possible by Clause 56(1) of the ICC Bill, which applies the, principles of the law of England and Wales", in, determining whether an offence under this Part has been committed". I emphasise that it imports or implies the whole of the principles or the laws in England and Wales. I hope that the Committee will agree that the matter is more conveniently expressed in that way than annexed to any Bill of this kind in volumes.

In applying the principles of the law, defences both statutory and at common law are invoked. Should a person find himself or herself accused of an ICC crime resulting from a situation described in subsections (1) and (2) of the amendment, a possible defence could be provided under the common law or by Section 3 of the Criminal Law Act 1967, where reasonable force is used.

In respect of the proposed subsection (3), the common law recognises the availability of defence of duress which may be applied by our courts in certain circumstances, although not in relation to murder, as the Committee will know. To incorporate these amendments would run the risk of excluding other common law defences. I am sure that Members of the Committee opposite do not want that. The defences under our own law are the best defences for individuals before our courts.

I also note that the proposed amendment departs in certain serious respects from the provisions of the statute that have already been referred to by the noble Lord, Lord Lester. In sharp contrast to Article 31 of the statute, the amendment would allow the person a defence if he can establish that he was acting as part of a defensive operation. The noble Lord, Lord Lester, has already outlined that point.

Subsection (3) of the proposed amendment reflects part of Article 31 of the statute. As I believe the noble Lord, Lord Lester, also made clear, it does not include certain important elements of that provision. I shall not repeat them as I believe that the noble Lord has already referred to them.

If we incorporate these defences in terms which would allow an acquittal where the ICC would convict, we run the risk that the ICC would hold that our courts had not tried a suspect for a statute offence, and thus would take jurisdiction itself; that is, we would not be able to take advantage of the principle of complementarity. We are confident that the defences available in the laws of England and Wales are applicable and should be those which British citizens who are tried on these cases would be able to take advantage of. We would not like to see them restricted or confined in the way in which the amendment suggests, although we absolutely understand the purpose that the noble Lord sought to achieve by so amending.

Lord Howell of Guildford

I am grateful for the noble Baroness's comments, which I found reassuring. In as far as she is able to explain that under the common law these matters would be fairly handled, that must be reassuring to those outside the Chamber and outside the skilled and expert but sometimes rather baffling world of legal interpretation who are worried as they go about their business, particularly in the military world where ugly things do happen tragically. I found the noble Baroness's comments useful and valuable. They will be on the Hansard record. In the light of that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Clauses 67 to 69 agreed to.

Clause 70 [Extradition: Orders in Council under the 1870 Act]:

Baroness Scotland of Asthal moved Amendment No. 128: Page 33, line 36, at end insert ("any Part V offence. (2A) "Part V offence" means—").

The noble Baroness said: The amendments are brought forward for the avoidance of doubt. Amendments Nos. 128 and 129 are technical ones which do not change the policy as set out in the Bill. They are proposed in the light of the recent Court of Appeal decision in Al-Fawwaz v. the Governor of Brixton Prison which exposed a discrepancy in some extradition cases. The amendments are intended to give better effect to the lifting of the dual criminality rule in respect of Schedule 1 to the Extradition Act than is presently provided in Clause 70 as drafted.

The amendments bring Schedule 1 extradition cases in line with the position in respect of other extradition cases dealt with under the Extradition Act 1989. It does so by enabling extradition for the extra-territorial offences of a requesting state under Schedule 1 as is the case with other requesting states under the main body of the 1989 Act. I beg to move.

Lord Lamont of Lerwick

Perhaps I may raise a point which is not directly relevant to the amendment but to the clause.

Clause 72 covers offences not regarded as of a political character. It provides that extradition can take place for these offences even if they were not offences at the time and place where they were allegedly committed. Can the noble Baroness comment on that? We have been continuously reassured that there is no retrospection in the Bill.

Baroness Scotland of Asthal

There is no retrospection for new offences. Of course there are already existing provisions in relation to old offences as regards extradition.

On Question, amendment agreed to.

Baroness of Scotland of Asthal moved Amendment No. 129: Page 33, line 42, leave out subsection (3) and insert—

• ("(2B) For the purposes of Schedule 1 to the 1989 Act, conduct, wherever committed, which constitutes—
1. (a) a Part V offence, and
2. (b) an offence against the law of any state in relation to which that Schedule has effect, shall be deemed to be an offence committed within the jurisdiction of that state.
• (2C) If any conduct would constitute a Part V offence if committed in the United Kingdom then, notwithstanding that it does not constitute such an offence—
1. (a) a person whose surrender is sought in respect of that conduct may be surrendered by the United Kingdom in pursuance of an Order in Council to which subsection (2) applies, and
2. (b) subsection (2B) applies to the conduct as if it constituted a Part V offence.").

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Lord Howell of Guildford moved Amendment No. 130: After Clause 70, insert the following new clause—

REPORTING OF CONSULTATION BETWEEN ICC AND SECRETARY OF STATE

(". The Secretary of State shall following any consultation prior to any proposed warrant, or actual warrant, from the ICC lay a report before the Foreign Affairs Select Committee of the House of Commons, or any ad hoc committee of that Committee, setting out in particular—

1. (a) the nature of the proposed warrant;
2. (b) the grounds for refusal to accept the warrant; and
3. (c) any reasons given by the Secretary of State why he considers that a warrant should not be issued, or that the case has been dealt with and or, that the case will be dealt with under United Kingdom jurisdiction").

The noble Lord said: Although the hour is getting late, I make no apology for bringing to the attention of the Committee a matter which I believe to be central to the effectiveness of the legislation and which to me is somewhat puzzling in the light of the many remarks made in Committee by Ministers.

In Committee it is our job to scrutinise the proceedings, jurisdiction and extent of the powers of the international court. Where powers are being created or transferred, that is a matter of proper concern in the interests of the subjects of this country. We have been told more than once that our amendments cannot be considered, not because of their merits—they may be technically inadequate—but because "this is what the Rome Statute states and that is what goes".

That leaves us in a slightly difficult position. While we have said that we welcome the Bill and its aims, we seek reassurance on a number of aspects. We can only do so by amendment. I hope that this amendment will not meet with the same response as others for this reason. The noble and learned Lord the Attorney-General has said during the course of the debate—I do not think that I distort his words—that we shall not have the situation where, in taking proceedings against an alleged war criminal, we are faced with a warrant from the ICC. He said that the ICC would alert us to the fact that it proposed to issue a warrant to someone suspected of being in the United Kingdom, resident or otherwise—we shall come to that another time. I hope that he is right in assuring us that national courts in signatory countries to the statute will have primacy.

That is all very well. The aim of the amendment is to get behind that and find how we can become aware of any discussions or consultations between the Secretary of State and the ICC that could lead to the rejection of an ICC investigation. In other words, how do we set out the reporting requirements for that very important procedure? My understanding of what has been said earlier in Committee by a number of authorities, including Ministers, is that the Secretary of State can say, before a warrant is issued—in other words, during the discussions or consultations with the ICC—that we in the United Kingdom will deal with the matter, that we believe that we have dealt with the person sufficiently or that we believe that there is no need to pursue the matter and that will then be the end of it. That is certainly a safeguard, although I tremble slightly at the thought of how other countries, with maybe less commitment to the rule of law or with a commitment to other kinds of law, such as Islamic law, will interpret that provision, but there it is. That is apparently what we have said.

If the International Criminal Court is not satisfied with the Secretary of State's assertion that the matter has been investigated and there is nothing more to do, can it issue a warrant in any case? Does it have the power to initiate proceedings against a state party and signatory country if it believes that an alleged war criminal is not going to be prosecuted or was not sufficiently prosecuted—or for some other reason? It appears that the Secretary of State of a signatory country can deal with an alleged war criminal nationally and insist to the ICC that the nation state has dealt with the alleged criminal. Is that all within the bounds of the Rome Statute and the treaty?

There is some clarity lacking on that issue. The aim of the amendment is to bring the contents of such discussions and decisions within the realm of Parliament. Of course it will be said that we should soon hear of any such proceedings that were knocking around. It is doubtful that the ICC would not know about them. However, the issue has been raised in your Lordships' House. Under those circumstances, if the ICC' issued a warrant or proposed to the Secretary of State that one should be issued, Parliament should be made aware of the matter and would wish to know about it.

Finally, the amendment would put such discussions on a formal footing. We are talking about extremely serious matters and the most hideous of crimes. We would want to know what was being considered by the Secretary of State and the International Criminal Court. The Minister may have in mind some reporting regime to Parliament. If so, it would be good to hear about it, because we need more than just a statement that it is a matter of interpreting or enshrining the statute in the law of this land. I beg to move.

Lord Lester of Herne Hill

Clause 2 deals with requests for arrest and surrender, and Clause 3 with requests for provisional arrest. They give the Secretary of State very little discretion. That is especially true in relation to the issuing of warrants.

The function of the Secretary of State is to forward either the ICC warrant or the ICC request to the appropriate judicial authority, or, in the case of a provisional warrant, to a constable. In the case of a provisional warrant, his role is slightly expanded. Under Clause 3 he forwards the request to a constable only if it appears to him that an application for a warrant should be made. However, if that is read together, as it must be, with the statute, the Secretary of State would have little reason to refuse to issue a warrant.

As has been said many times during the debate, the safeguards under the Bill and the statute are partly to be found in the national judicial system in relation to habeas corpus and respect for fundamental rights, and mainly in the International Criminal Court procedures. Given the very limited breadth of ministerial discretion, we cannot understand how such a matter could possibly need to be reported either to the Foreign Affairs Select Committee of the other place or to any other parliamentary oversight body. For those reasons, we do not consider the amendment to be necessary or appropriate.

Earl Attlee

Does the noble Lord, Lord Lester of Herne Hill, agree that if a warrant arrives it is most likely to be directed at a member or former member of Her Majesty"s Armed Forces? Such a situation could be extremely damaging for morale in the Armed Forces, and therefore Parliament should know about the difficulties.

Lord Lester of Herne Hill

Of course, I realise that it is possible—one hopes that it will never happen—that members of the Armed Forces may be guilty of crimes against humanity, of war crimes or of genocide. In that case, they should be treated in the same way as the perpetrators of that type of crime in any other country. As to whether such a case should be reported to Parliament, I have no doubt at all that in a country with a vigorous press the fact that the request has been made will be noted. I also have no doubt that Members of this House and of the other place will make quite sure, as they always have done in the past, that such matters are debated.

Baroness Scotland of Asthal

I want to reassure noble Lords opposite and all Members of the Committee in relation to this matter. When appropriate, matters relating to requests from the ICC will be brought to the attention of Parliament in the usual manner without a requirement formally to lay a report. That has been the practice on many occasions and, indeed, was the approach taken in the Pinochet case, when the Home Secretary's reasons for his decision were brought to the attention of another place.

The ICC would have to consider any challenge to its jurisdiction at a preliminary admissibility hearing in accordance with Articles 17 and 19. Members of the Committee will know that Article 17 provides that a case should be investigated by a state which has jurisdiction over it where the state has decided not to prosecute the person concerned unless the decision has altered from the unwillingness or inability of the state genuinely to prosecute. Article 19 provides that the court shall satisfy itself that it has jurisdiction in any case brought before it. The court may, on its own motion, determine the admissibility of a case in accordance with Article 17.

We do not believe that a problem will arise in that respect. In the light of our assurance that the matter would be brought before Parliament in the usual way, we hope that noble Lords will agree to withdraw their amendment.

Lord Howell of Guildford

As I understand it, the noble Baroness is saying that these matters will come before Parliament but that one does not require further formality, procedures or definition of procedures in codifying the way that they will come forward because come forward they will. I believe that that is what she is saying. That I understand and accept. However, I remain a little puzzled. My mind is far less clear about the nature of the procedure than are the clear minds of those who, like the noble Lord, Lord Lester, are obviously reassured by the situation. Perhaps this does not arise but let us suppose that the ICC says, "We have had notification" perhaps from some other country or a former enemy—I know that this is not retrospective—"that back in Bosnia, something really dreadful happened and some atrocities were committed which we, the recipients, believe involved brutality and war crimes which should be brought to justice". That comes from the ICC to the Secretary of State. The Secretary of State might say, "We have looked into this. We have concluded that the matter should not be pursued because the military personnel concerned were under intense pressure. They bombarded the wrong village and blew up an alleged ammunition dump, which turned out to be full of civilians. We have looked into that and we do not believe that any further blame can be apportioned". Or the Secretary of State might say, "Yes, we have proceeded to a court martial and those involved were acquitted".

I think that I understand that in the second instance that is enough and the ICC will go away; but in the first instance, what is the nature of the consultation? Is it correct that the ICC, if told by the Secretary of State that the matter will not be pursued nationally—which, in another language, one could say was an indication that the nation state was unwilling, not unable, to proceed with the matter—will then have to go away? If it is, does not that somewhat weaken the impulses and momentum which are meant to be behind the Bill, as has been put so eloquently by the noble and learned Lord, Lord Archer, and the noble Lord, Lord Goldsmith?

I should like to be told that that analysis is wrong, that there is not that defence by the Secretary of State, and that the investigation could proceed. Before we finish Committee stage it is important to get absolutely clear and on the record the safeguards or limitations which the Secretary of State—or, in any other country trying to pass similar legislation to ours, a senior minister, Minister of Justice, or whatever—can deploy to prevent an investigation going ahead. I repeat that that applies in particular, obviously, to the armed services and the inevitably violent situations in which they have to conduct their difficult business. I should like the Minister to address that point before we go further.

10 p.m.

Lord Goldsmith

The noble Lord referred to me as one of those who had been happy about the Bill and anxious that it should go forward. Perhaps I may say, before the Minister replies, so that she can indicate whether this is right, that the answer to his question is to be found in Article 17.1(b). If the Secretary of State or whoever it is says that the case has been investigated and a decision has been taken not to prosecute, the case will be inadmissible so far as concerns the ICC, unless the ICC takes the view that that decision resulted from the unwillingness or inability of the state genuinely to prosecute. In other words, it is another example in which the ICC does not step in where a country is able and willing genuinely to prosecute and to investigate, but will do so if it is not. That is my understanding. My noble friend will confirm or say otherwise on that point. I hope that answers the question.

Baroness Scotland of Asthal

I can confirm that what the noble Lord, Lord Goldsmith, says is right. Earlier I read out Article 17.1(b). Perhaps I may assist noble Lords. The articles which perhaps help most start with Article 5.4, there are then Articles 17, 18 and 19. In addition to those three articles—I am happy to go through them with a little care if Members of the Committee would like—full procedures are provided for in relation to admissibility and the challenges before the ICC in the rules of procedure at Articles 51 to 62. The scheme is clear. The noble Lord, Lord Goldsmith, is right to say that Article 17.1(b) assists as he and I have already outlined. Article 17.1(c) goes on to state: The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20". Indeed, the whole of Article 17 is relevant.

I ask Members of the Committee to look also at Article 18.2, which provides for more specific provision, and then at Article 19. The issue appears to be comprehensively covered in relation to those matters. I am sure that in close scrutiny of those parts of the statute the noble Lord will find the reassurance he seeks.

Lord Howell of Guildford

I thank the Minister for that answer. I also thank the noble Lord, Lord Goldsmith, for his intervention, which cast a beam of light. But his light falls on what I am afraid is still a grey area. The questions that hang in the air are: what is unwilling; who decides; and by what public or private consultation is it established that the state believes it is not a sensible matter to pursue or is unwilling? At what level inside the office of the prosecutors, the pre-trial chambers and all the other apparatus of the Bill is that decided?

Baroness Scotland of Asthal

I am happy to read out all the provisions but I invited Members of the Committee to look at Article 17.2, which provides that: In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized in international law, whether one or more of the following exist, as applicable". I respectfully suggest that the noble Lord scrutinises the provisions in each of them because he will find the help he needs.

Lord Howell of Guildford

I am happy to receive that invitation. Having done the scrutinising I shall do it again, but I am still uneasy about the subjectivity of the decisions and the need for the Parliament of this nation to be fully apprised of the nature of any disputes and exchanges which may arise over an area where there is not an objective, a perfect solution, no matter how many times one reads the detailed articles of the statute. That is in the nature of the thing because we are dealing with matters which are associated with judgments which can be subjective and are not always objective.

However, as time is getting on I shall seek to return to these matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 agreed to.

On Question, Whether Clause 72 shall stand part of the Bill?

Lord Lamont of Lerwick

I thank the Minister for having answered the questions I sought to raise about Clause 72 when addressing Clause 70. I am sure that she realised I was speaking at cross purposes to the wrong clause. I assume that her answer to me applies.

Clause 72 agreed to.

Clause 73 [Consequential amendments of armed forces legislation.]

[Amendment No. 131 not moved.]

Clause 73 agreed to.

Clauses 74 and 75 agreed to. [Amendment No. 132 not moved.]

Clause 76 [Application of provisions in relation to other International Tribunals]

Baroness Scotland of Asthal moved Amendment No. 133: Page 37, line 20, leave out ("and (3)") and insert (", (3) and (4A)").

On Question, amendment agreed to.

Clause 76, as amended, agreed to.

Clause 77 [Crown application]

Lord Howell of Guildford moved Amendment No. 134: Page 37, line 37, leave out from ("Crown") to (", and") in line 38.

The noble Lord said: As we near the end of Committee stage I return to the familiar theme, which we discussed a moment ago, of the protection of innocent persons, not the pursuit of international butchers and monsters, to which the Bill and project are dedicated, who must be brought to justice, if that can be done. I refer to the people of our nation who are in the service of the Crown. The reasons for the amendment are simple enough. Armed Forces personnel are subject to military discipline and, if they act pursuant to orders, they should not be liable to ICC prosecution.

Some Members of the Committee have had difficulty in imagining what may go through the minds of soldiers when they read some of the provisions of the Bill and how the whole project is to move forward. On the whole, this country is on good terms with most states in the world. One of the matters that I found most wonderful and gratifying in the years that I chaired the Foreign Affairs Committee and travelled around the globe was how the world was such a Britain-friendly place. On the whole, people do not seek to settle scores with us and build up revenge cases, although there are plenty of reasons in history why they may do so.

As I understand it, in the statute a check is provided against abuse and politically motivated prosecutions, in addition to all the pre-trial machinery and so on built into the conduct and procedures of the ICC as provided by the Security Council of the United Nations. In theory, the many extensions of criminal definitions could apply to a number of countries; for example, those in the Middle East. Israel is accused daily of deportation, forced transfers, genocide and murder against the Palestinians. Turkey is also accused of those crimes against the Kurds, and Iraq is accused of committing crimes against its own people, the marsh Arabs. Although they may appear to us to be remote concerns, they indicate how, even when countries have not signed the statute, for example Turkey and Iraq—Iran and Israel have done so—there is pressure for the political settling of scores to be incorporated in the procedures of the ICC.

These are very complex problems. Unless the safeguards at the highest level are made absolutely clear in ordinary English, not just (dare I say?) in the reassuring language of legality, criminalisation of the use of international force may be on the cards. People will look over their shoulders, even when they act under UN authority in the name of peacekeeping, and retaliation against violence may potentially become a more dangerous pastime for the individuals involved. It is for that reason that at the end of Committee stage we table one further amendment to give reassurance to those who serve the Crown and their country and are involved in actions, which other people, far from our own definitions, describe as war crimes, and find themselves fingered. They may be investigated or named only in the tabloids but that can mean destruction for many of them. That is the danger. Every assurance we can extract from the Government and legal luminaries, both in this House and elsewhere, that that danger is not there, and that there are safeguards against it, is one more support for the success of the Bill. Every lack of assurance is one more weakness in the Bill and one more danger that it could fail. I beg to move.

Lord Lester of Herne Hill

I wonder what the noble Lord would think if a similar immunity clause were inserted into the law of Ruritania, immunising anyone acting in the discharge of their duties in the public service of the People's Republic of Ruritania, in circumstances in which the Armed Forces of Ruritania had committed atrocities and barbarities of the kind that are stigmatised by customary international law as well as conventional international law? In other words, I wonder whether he would be able to apply the standards he has just outlined to another country that committed these kinds of barbarities against our own people? I venture to think that he would not dream of defending immunity of that kind.

Under the law as it stands, if members of the Armed Forces in the service of the Crown of this country act in breach of Article 2 of the European Convention on Human Rights by unlawfully killing, then there is no immunity at all. Their case has to be determined under British law, and, if necessary, by the European courts. If they are guilty of acts of torture or inhuman or degrading treatment or punishment under Article 3 of the convention, there is no immunity.

If they act in breach of the Geneva Conventions Act, there is no immunity. If they act in breach of the Criminal Justice Act as it applies to acts of torture, there is no immunity. I fail to understand why it is thought that such an immunity could even be dreamt of as being appropriate. It would be directly contrary to the ICC Statute to insert such an immunity. I give way to the noble Lord, Lord Lamont.

Lord Lamont of Lerwick

Instead of using "Ruritania" why does the noble Lord not simply use the "United States"?

Lord Lester of Herne Hill

Because I am using a state that is an enemy or an unattractive state, a real example of one that would commit crimes against humanity or war crimes and so on. What I am dealing with here is not immunising United States forces, but immunising our own United Kingdom forces. The point I am trying to make is that we would never dream of tolerating such a provision in relation to an unfriendly foreign state; for example, Nazi Germany.

Lord Lamont of Lerwick

I wonder if that really is what the noble Lord was advocating or whether he was just advocating it in respect of "another country", because what he has said is very much what the United States wants to do with regard to giving itself protection from this legislation. He may know that Senator Helms has talked of introducing a Bill that would authorise the President to use military force to rescue an American held for trial by the ICC.

Lord Lester of Herne Hill

I doubt that anything I or most Members of this House could say would ever satisfy Senator Jesse Helms. I do not aspire to that level, if that is the right way to put the matter.

As the United States has been mentioned, I do not know whether the noble Lord, Lord Lamont, knows that during the negotiations the United States delegation and, separately, the United States military representatives sought and obtained concession after concession in the drafting of the ICC statute. Those concessions were made by the United Kingdom and the others who signed and wish to ratify, in the hope of persuading the United States to follow suit. However, in spite of the broad concessions that have been made, Senator Jesse Helms and many others like him did not wish to sign and ratify. They regret the fact that there has been signature by the United States.

I would not dream of counselling the United States as to what might be in its best interests. The question that we are considering is whether it is compatible with the ICC statute to confer immunity, whether that would be consistent with the other international human rights treaties to which I have drawn attention and whether it is really a matter of principle or is something that we could possibly condone. Why on earth, I ask, should the armed forces of our country be above international law, customary international law or in this case conventional international law? If they are properly suspected and charged with committing these sorts of crimes, why should they have general immunity? Perhaps I may add that this is an ICC statute with more safeguards, properly written in, under United States pressure, than any other international human rights treaty of which I am aware.

Lord Lamont of Lerwick

If those remarks were addressed to the United States as well as the United Kingdom, while the principle that the noble Lord advocates is laudable, common sense indicates that one would pursue this matter with considerable reticence if one belonged to the country that carries out more peacekeeping than any other country in the world.

Lord Lester of Herne Hill

The United States has its own proper concerns. Indeed, it is not alone in that. I am seeking to address the issues of principle, and it would be impertinent of me to talk about what is in the best interests of the United States. I recognise the concerns, but I believe that they have been properly met in the concessions made in the ICC statute. I very much hope that it takes less time to ratify this statute than the genocide convention, which the noble Lord will remember was not ratified by the United States until many years after other democratic and civilised states throughout the world had done so.

Lord Avebury

Let us consider the matter from the viewpoint of Senator Jesse Helms. The reason why he does not want the United States to sign the ICC statute is that he knows that there cannot be any exemption for the personnel of the American armed forces, apart from the protections that have been rehearsed time and again, such as those in Article 17 and so on. The senator's position is logical. He does not want the United States to accept a statute from which there is no exemption, whereas the noble Lord on the Tory Front Bench is trying to add to the Bill an exemption that is totally incompatible with the statute. Senator Jesse Helms is at least more consistent than the noble Lord on the Front Bench.

Baroness Scotland of Asthal

I understand the concerns of the Members opposite. They are seeking to protect service personnel who are acting properly in the discharge of their duty. I reassure the noble Lord that this Bill does not seek to entrap those who behave properly in the discharge of their duty in accordance with international law. However, it seeks to catch those acting outside the proper boundaries or borders of permissible activity.

As the noble Lord, Lord Lester, made clear, the amendment would catch none of those whom we wish to be trapped by the Bill, but would set all free. I am sure that that is not the purpose behind the amendment. If it were, I should have become confused and bemused about the stance being taken by Members of the Committee opposite. What I say to reassure the noble Lord is that the whole fabric of the Bill is constructed so as to make sure that those who behave properly will have nothing to fear from it. But, by the same token, we hope that the Bill will strike terror in the heart of the war criminal and will act as a tool to reinforce proper behaviour by all personnel.

I understand why the amendment has been put forward, but it does not cure the ill which the noble Lord seeks to cure. What it may do is simply spread the disease. I know that that is not the noble Lord's intention. I invite him not to pursue the matter and to withdraw the amendment.

Lord Howell of Guildford

I am grateful to the noble Baroness for that invitation. I am rather sorry that the noble Lord, Lord Lester, brought Ruritania into the debate as an unfriendly country. I have always had a special affection for Strelsau, the Rassendyll family and even the castle of Zenda. But let us suppose that we are talking about countries that are hostile and that really exist. Those are countries for which, in many cases, legal processes are an extension of politics. I fear that we must be reconciled to the fact that even though some of those which have signed, let alone those which have not, would, if they come to ratify, be only too ready to put in all kinds of safeguards and protections, they would not be too overawed by whatever example we have tried to set.

I know that the doctrine put forward in the debate is that we must be a model and so on. "Up to a point, Lord Copper", if I may quote that phrase from Evelyn Waugh. Of course we must be a model up to a point, but not to the point where we remove safeguards in a belief, which is idealistic but is bound to be naive, that everyone will do the same and place their national interest in a lower place in order to elevate the high and noble purposes of the Bill. I do not think that will happen and we should not build too much hope on that.

The position of the United States came into the debate. It is not just Senator Jesse Helms who holds views that some regard as internationally extreme. It is a considerable range of responsible Senators, Congressmen, American lawyers, politicians and those who think hard about these issues. It is people like Senator Hatch, whom one could not possibly condemn as off the main track of sensible understanding of international values. I heard, alas, one eminent QC—he is not a Member of this House or of the other place—dismiss the whole of the American stance as arrogant. That made me very sad. If that is the approach, the chances of getting the United States to be part of the court and to give it the credibility without which it will not be half as effective as we want are very low indeed. I hope that it is not the approach of anyone in your Lordships' House. I am sure that it is not the approach of the Government. I do not even suggest that. However, the American view must be changed if the court is going to work.

I leave aside for a moment the problems of China and India, which have a third of the world's population and do not look too willing to move, although the Indian Government may take a different view in due course. There is the real difficulty that, as the statute cannot be amended for seven years, the very proposition which even President Clinton signed looks a little awkward, although there will be some room for negotiation in the assembly. After all the efforts of the previous US negotiator—the sincere efforts which the noble Lord, Lord Lester, mentioned—to get a workable system, the idea that somehow the United States can find its way back into the system in seven years' time and will go along with it in the meantime is completely unrealistic. It is my view that, if this is to succeed as a project, something will have to give. I am not sure that I can see exactly what that will be, but I am equally sure that if we all stand pat on the present arrangements and keep America out, that will be a disaster for the whole project.

Having said that and fully accepting that we cannot lead the way on this—this amendment conflicts with the Rome Statute as it stands; it was tabled to provide an opportunity to hear the Government's final and reiterated views on the matter—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

[Amendment No. 135 not moved.]

Clause 77 agreed to.

Clause 78 [Extent]

Baroness Scotland of Asthal moved Amendment No. 136: Page 37, line 41, after ("except") insert ("section 32 (transfer of prisoner to give evidence or assist in investigation) and").

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clauses 79 to 83 agreed to.

Schedule 10 agreed to.

Schedule 1 [Supplementary provisions relating to the ICC]:

Lord Lamont of Lerwick moved Amendment No. 136A: Page 40, line 4, leave out paragraph 1.

The noble Lord said: I should like to raise a number of points relating to Schedule 1. The first relates to the question of immunities. We see that the Bill as a whole is a feast for lawyers; a tremendous input has come from the lawyers. We have been given long lectures on how no immunities should be granted to anyone. There is to be sovereign immunity, no diplomatic immunity or, indeed, any immunity for anyone other than lawyers.

In paragraph 1 of Schedule 1 we find tucked away the most interesting provision in the entire Bill: subordinate legislation conferring privileges and immunities on the ICC. I should like to ask the noble Baroness why it is necessary to confer such immunities on the court. Is it normal for courts to enjoy immunity? For example, only yesterday a story was published in the newspapers concerning a judge in the Czech Republic. He has been accused of taking a bribe in relation to a court case held some years ago. What will be covered by these immunities? Will it be impossible for people to seek redress against judges if they are thought to have behaved in any way improperly? I refer to questions of miscarriages of justice; namely, not matters that would normally be the subject of an appeal.

I notice that the schedule also makes provision for pensions. Those pensions are presumably ones for UK judges to the ICC, to be paid out of UK taxation. That raises the question of the resources to be made available to the court. I should be grateful if the Minister could comment on what resources are to be made available. How much is it thought that British taxpayers will have to contribute? What will be the situation if other governments do not contribute? It is important, if multi-national or multi-lateral funding is to be used for the court, that it should not be dominated by one country or a group of countries.

A criticism that I would level at the tribunals in the former Yugoslavia is that they have been excessively dominated in their funding by Muslim countries. I suggest that that could be perceived as calling into question the impartiality of the court.

I have previously raised with the Minister the question of whether it is appropriate for a court to be partly privately financed. I understand that part of the finance for the equipment used in the Yugoslav tribunals was provided by Mr Soros. Contrary to legend, I have nothing against Mr Soros, in this or any other context, although the French authorities seem to have some quarrel with him. But I question whether it is appropriate for a private individual to fund a court in this way. We regard it as unthinkable that a court nationally should be partly privately funded. I should like the Minister to address the source of the funding, whether it will be evenly spread and whether it will be dominated by particular countries. Those questions give rise to a number of concerns.

Paragraph 3 of Schedule 1 refers to the power to give effect to the Rules of Procedure and Evidence. Perhaps I may ask the Minister to say a little more about that. In particular, will she say how we can ensure that in the minds of judges standards of proof and standards of guilt are the same? What will be done to bring about a harmonisation of standards and expectations?

I have heard from many members of the Bar and lawyers who have appeared before the Yugoslav tribunals. I have not heard unmitigated praise for the way in which the judges operate or for the way in which the rules of procedure of those courts operate. For example, is it intended that we shall have rules relating to the length of time that someone can be detained before being brought to trial? I have heard all kinds of criticism from people who have appeared before those tribunals. I know that they would prefer not to be named, and they will not be named by me. However, I can say that they hold great reservations about the operation of such tribunals. I make that point because, when a similar point was raised earlier, the noble Lord, Lord Goldsmith, and others expressed horror that any criticism should be made. The decision whether or not to establish an international criminal court should, at least in part, be based on the experience of those involved with tribunals relating to the former Yugoslavia. Not everyone who has been professionally involved with those tribunals holds the rose-coloured spectacle view of them that has been put forward during the debate.

My final point relates to paragraph 4. The orders made under paragraphs 1 to 3 will extend to Scotland. This paragraph provides that they shall be made only with the consent of both Houses of Parliament and the Scottish Parliament. What will happen if the House of Lords says "no" to one of those but the Scottish Parliament says "yes"?

Lord Lester of Herne Hill

The noble Lord, Lord Lamont, is at least consistent. Earlier in the debate he expressed scepticism, if not something stronger, about the way in which our own House of Lords had dealt with the case of Senator Pinochet. I believe that he said that the Law Lords somehow had not acted in the judicial way that he would have wished. If he thinks that of our own judges, it is not surprising that he finds it appropriate to express doubts about the court not yet established.

If he is open to it, I believe I can provide him with some reassurance. If he reads the ICC statute, he will find a number of provisions that answer his points. For example, Article 40 guarantees judicial independence in a strong way. Article 41 deals with the disqualification of judges whose impartiality may be in doubt. Article 46 deals with the removal of judges for serious misconduct or a serious breach of duties under the statute. That will be further dealt with in the Rules of Procedure and Evidence. Article 47 deals with disciplinary measures against a judge or prosecutor and so on who commits less serious misconduct. So there you have a battery of safeguards, coupled with the other safeguards in regard to the need to act judicially in a real sense.

So far as concerns privileges and immunities, Article 48.1 requires the court to enjoy in the territory of each state party such privileges and immunities as are necessary for the fulfilment of its purposes. Just as our courts have immunities when exercising judicial functions subject to their removal by impeachment—and there is a similar provision here for impeachment—so all international organisations properly so called have privileges and immunities within the territories of the states which are members and supporters of those organisations. So there is nothing strange or unusual about a privilege and immunity clause.

Lord Lamont of Lerwick

The noble Lord says that it is nothing strange—it is. Perhaps he will give a rationale for it. Why should a head of state have no immunity and an organisation like the court have immunity? Is he aware that in countries such as New Zealand judges do not have immunity; judges can be prosecuted for offences or taking bribes? Why should we not have the highest standards for an international court?

Lord Lester of Herne Hill

Judges here may be prosecuted for criminal offences, just like anyone else. I am talking about immunity in respect of the exercise of their judicial functions and the importance of having independent tenure. The noble Lord asked me why international organisations have immunity. The reason is that they have international legal personality and they are, as a matter of customary and conventional international law, always protected in their international functions by immunities in the states in which they operate. The point I make simply is that that is true of the European Court of Human Rights, of the International Labour Organisation and of every international organisation that is recognised as being international.

So far as concerns funding, that is determined, as I understand it, by the assembly of states parties. I do not think that any of the points raised are new or give rise to any real concern.

Lord McCluskey

I wonder whether I am looking at the same statute as the noble Lord, Lord Lamont. The one that I am looking at talks about immunities for judges being immunities which are required to give effect to the statute. You do not have to commit genocide to give effect to the statute; you do not have to commit crimes against humanity or accept bribes to give effect to the statute. Accordingly, immunity is extremely narrowly defined. If one recognises that that is what this states and what the treaty and statute state, there is no problem at all.

Lord Williams of Mostyn

I am about to fulfil a lifetime's ambition. I am able to say, in respect of what the noble and learned Lord, Lord McCluskey said, that I have heard what he said, I agree with everything he said and I have nothing to add.

I do not think that there is anything to add to what the noble Lord, Lord Lester, said. I understand the questions put by the noble Lord, Lord Lamont. All the answers that I was going to give included going through Schedule 1, paragraph by paragraph. Those answers have already been given. I do not think that I can assist the Committee further, bearing in mind that the hour has now past 10.41 p.m.

Lord Lamont of Lerwick

Before the noble and learned Lord sits down, could he at least answer the questions about funding?

Lord Williams of Mostyn

Certainly. This will not come cheap. I believe that experience will demonstrate that the number of cases which have to go to the ICC will be relatively few. It will therefore not be possible to give even a general estimate of the cost to the United Kingdom of the ICC. Should we take prisoners at the ICC's request, the conventional figure at the moment is about £25,000 or £26,000 per head per year. I am trying to be as helpful as possible. Our contribution to the Yugoslav and Rwanda tribunals last year was about £5.7 million.

I should say in the context of the Yugoslav tribunal that I have visited it. Sometimes that is helpful. Two senior British prosecutors had been there for a long period of time on a very small remuneration, barely enough to live on. I was unable to find any criticism of the quality of the judges, or of the procedure. I thought it exceptionally fair and exceptionally careful, moderate and scrupulous.

10.45 p.m.

Lord Lamont of Lerwick

My question related not merely to the total cost but to burden-sharing between different countries.

Lord Williams of Mostyn

The burden-sharing will be on a band agreed between the parties. Obviously, it will depend on how many states ratify the agreement. If large states such as the United States do not ratify, we shall not be able to look to them for a contribution.

The kind of figure I mentioned is quite large—£5.7 million. But I wonder how proportionate that figure is in the context of the wrongs that we are hoping to prevent and put right. I believe that this country has a big enough heart to discharge those debts.

Lord Lamont of Lerwick

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howell of Guildford moved Amendment No. 137: Page 40, line 41, after ("shall,") insert (''unless the contrary is shown on the balance of probabilities,").

The noble Lord said: We conclude this Committee stage with an amendment of exquisite technicality and narrowness. It is so exquisite and so narrow that I may not even be able to present it in the precise form that I should like. It arises from the provision in paragraph 5 of Schedule 1, which states that, An order, judgment, warrant or request of the ICC which purports … to bear the seal of the ICC, or … to be signed by a person in his capacity as a judge or officer of the ICC, shall … be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person".

The amendment queries whether "without further proof" is adequate and suggests that a tighter test of authenticity would be justified. It introduces the concept that is no doubt familiar to lawyers, but not to me, of the "balance of probabilities". The amendment argues that the balance of probabilities test must be employed. So if the warrant looks less than genuine by 50 per cent, there must be a proper test of authenticity by the judges. The warrant should not merely be accepted on the hopeful assumption that it looks all right, therefore it should be all right.

This is a small matter, but it is part of the general structure of reassurance that we seek to build, not into the statute, which I see is cast in stone, but into our interpretation and handling of how the statute may become law in this land. I beg to move.

Baroness Scotland of Asthal

I hope that we can end the Committee stage on a happy note, with my being able to give great comfort to the noble Lord. It has been the case for the past 150 years that documents from foreign courts may be admitted in criteria in our courts if they purport to be duly signed as sealed, without any further proof being necessary. The various statutes on the matter, such as the Evidence Act 1851, contain a provision equivalent to that proposed in the amendment. In our view, the ICC should be treated like any other court outside a jurisdiction in this respect. I can tell the noble Lord that in the past 150 years even the lawyers seem to have been satisfied with the provision. Therefore, I hope that the noble Lord will withdraw the amendment.

Lord McCluskey

The point is that the provision enables one to avoid the need to prove the seal or the signature, but the document, judgment, order or warrant still has to be "of the ICC". So the problem does not arise, except in relation to the formality of proving the signature or the seal.

Lord Howell of Guildford

If the problem does not arise for lawyers, that is an assurance; and, indeed, if it has not arisen for the past 150 years, that is really an assurance. I am comforted. Therefore, I gladly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

House resumed: Bill reported with amendments.

House adjourned at eight minutes before eleven o'clock.