§ Second Reading debate resumed.
§ 5.6 p.m.
§ Lord Lloyd of Berwick
My Lords, like other noble Lords who have spoken in the debate today, I, too, strongly support the aims of the Bill. I can state my reasons briefly, and, I fear, superficially compared to the learned speeches we have heard from the three Front Benches.
I was one of those who took part in the Pinochet case when the matter came before this House. The Bill is not in any way a response to the Pinochet proceedings. It is a response, perhaps a belated response some might think, to the Rome Statute agreed as long ago as July 1998, which was three months before Senator Pinochet was arrested.
It is perhaps interesting and instructive to look back at the Pinochet case now and to speculate as to what would have been the result if the International Criminal Court had then been in existence. Indeed my noble friend Lord Lester of Herne Hill has already indulged in a little speculation in that respect.
One of the arguments advanced on behalf of the Government of Spain, and advanced very forcefully as I remember, was that there must be a means of bringing a person such as Senator Pinochet to justice. My answer at the time was a simple and perhaps even rather ingenuous one. My view was that he should be returned to Chile and tried there. That may yet happen 956 if Senator Pinochet is found fit to stand trial. However, that course did not appeal to the majority of my brethren so I say no more about it.
If sending Senator Pinochet back to Chile seemed to me to be the obvious way to deal with the case, it is certainly not the only way in which such a person can be brought to justice. I pointed out that he could have been tried in the domestic courts of other countries, claiming jurisdiction on whatever grounds in the case, provided the Government of Chile did not assert immunity on Senator Pinochet's behalf as a former head of state. In the event the Government of Chile vigorously asserted a state immunity.
Another alternative was that he should be tried in a specially constituted international criminal court, such as happened in the case of Yugoslavia in 1993 and Rwanda in 1994. Lastly, I said that Senator Pinochet could have been tried in the International Criminal Court if it had then existed because Article 27 of the Rome statute, which is the critical provision, in simple terms overrides a claim for sovereign immunity in cases of states which are party to the statute.
I am glad to see that Clause 27 of the Bill reproduces the effect of Article 23 of the statute. That is one of the most important, if not the most important, provisions of the Bill. If the court had been in existence in 1998 and Chile had been a state party to the statute it would have been idle for Spain to seek the extradition of Senator Pinochet, with all the trouble that then ensued. Senator Pinochet could, and no doubt would, have been arrested here under the relatively simple provisions of Part II of the Bill. The Bill has already been described as complex, as must be any Bill with 83 clauses and 10 schedules, but I am not sure that Part II of the Bill is much more complex than the provisions of, for example, the Extradition Act 1989 on which it is to some extent based.
If Senator Pinochet had been arrested under the Rome statute, it would have meant that he could then have been tried for all his alleged international crimes in a truly international court instead of the domestic courts of one or other of a number of different countries, all asserting international jurisdiction and all competing with each other to exercise that jurisdiction. That would surely have been a great advantage. It would also have meant that it would have been unnecessary—this is perhaps a more personal matter—to stretch the principles of customary international law in order to secure his extradition to Spain. However, I recognise that that is a minority view which perhaps I should not even have expressed. What I will say is that the Pinochet case proves the need for a court such as the International Criminal Court. It also proves the need for this legislation. To my mind it is an important Bill and I give it my warmest welcome.
§ 5.13 p.m.
§ Baroness Kennedy of The Shaws
My Lords, the House enjoys the presence of many human rights warriors. I join them in warmly welcoming the Bill. Like the noble and learned Lord, Lord Lloyd, I see the 957 Bill as one of the important actions of the Government. It should not be forgotten how hostile previous administrations were to such a court. I congratulate the Prime Minister and the Secretary of State on their role in the negotiations for the court and on securing a leading position for Britain in its creation.
The idea of a world criminal court is not new. It has had a long gestation period. It received its first concrete shape in 1937 when a draft statute for a court to try international terrorists was produced by the League of Nations. It came up again in the wake of the Second World War. After the Nuremberg and Tokyo tribunals, the UN made a passing reference in the 1948 Genocide Convention to an international penal tribunal and draft statutes were produced over the next few years by the International Law Commission. But the project soon went into the deep freeze of the Cold War and was not brought out again until Gorbachev suggested it as a measure against international terrorism. The General Assembly asked the International Law Commission to resume its work, hurrying it along after large parts of a shocked world expressed enthusiasm for its creation when war crimes in the former Yugoslavia were exposed. The other important engine of change was that many governments were under pressure from NGOs active in the human rights arena to support an International Criminal Court. We should not miss the opportunity of saluting the many dedicated organisations—Amnesty International, the Helsinki Human Rights Watch, and others—which have campaigned for the court for many years.
What kind of court was a matter of wide disagreement and generated a very fractious debate internationally. While it is a source of celebration that 139 nations have now adopted the statute to create the court, we should also remember that 21 nations abstained. The seven which opposed included China, Israel, India and the United States, representing a massive concentration of people and power. There is, of course, a group of countries which does not want a court at all. I suppose that we could call them the usual suspects. The list will not surprise anyone: Iraq, Iran, Libya and Indonesia.
The United States initially wanted a court, but one that would never work against the interests of the United States. The model which the United States preferred was one where the court was controlled by the Security Council, where the US could use its superpower veto against any embarrassing prosecutions. Not surprisingly, China took the same view. That model for a court did not meet the aspirations of Britain, Canada, Germany or any of the other "like minded" group of 42 nations which believe in international human rights. However, trying to find compromises to keep America on side has greatly weakened the statute that was finally agreed. Concessions were constantly made in the negotiations to woo the United States and that has created flaws which are now embedded in the legislation that we are now endorsing. The legislation goes so far as to require 958 a state's consent before one of its nationals can be prosecuted, a clause introduced in a desperate attempt to placate Senator Helms, who demanded 100 per cent protection for American GIs. It does not take much vision to see the practical problem that that creates. Imagine Cambodia ruled by Pol Pot surrendering him or one of his henchmen for trial!
The court also has no "universal" jurisdiction—again at the objection of the Americans. The Rome statute gives the court jurisdiction either by remit from the Security Council—the Security Council gets to decide—or by the consent of the state of which the defendant is a national or in which the crime was committed. The "state consent" provisions within the treaty mean that no one occupying a position of current political or military power in any state is likely to be put on trial unless he invades another state or commits war crimes on its territory. Any retired war criminal like Pinochet in Chile who retains a power base in his state of nationality will remain safe, despite the belief of the noble and learned Lord, Lord Lloyd, that he could have been brought to trial.
The class of criminal most likely to be arraigned at The Hague is persons who commit barbaric crimes in a cause which has utterly failed, in a country which decides to surrender them because it lacks the facilities to try them itself. Otherwise the ICC will become a kind of permanent ad hoc tribunal dependent on references from the Security Council to investigate countries like Rwanda and the former Yugoslavia where none of the combatants has superpower support. It will take strong advocacy by countries like our own to ensure that the court has teeth. As the noble Baroness said at the outset of this debate, the new court will not have any retrospective powers and will be able to deal only with future abuses, so there is no justice here for many of those monstrous criminals of the 20th century who are still alive and who still enjoy their freedom.
The powers of the prosecutor are also greatly shackled by the court. Perhaps that was because President Clinton had the unhappy example close to home of the special prosecutor in the form of Kenneth Starr. Whatever the reason, it is certain that the powers of the prosecutor fall short of what I would have hoped for.
However, I do not want to minimise the importance of this legislation. It is a truly great achievement. To take words from the preamble to the Rome statute, this is a huge step towards global justice:Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage and concerned that this delicate mosaic may be shattered at any time".The security of peoples and the patina of civilisation can easily be shattered. The Bill is probably the best deal that the human rights movement could secure with the realpolitik of state power in the late 20th century.
Finally, the viability of the International Criminal Court ultimately will depend more on the calibre and experience of its judges and prosecutors than on the 959 fine print of statute. I truly urge our colleagues, the Secretary of State and others to ensure that the judges in this court will be our finest.
§ 5.21 p.m.
§ Lord Moynihan
My Lords, as one of the speakers that the noble Lord, Lord Lester, categorised as a "human being" among so many fine legal minds, it is increasingly daunting to participate in the Second Reading of this Bill. Nevertheless, I am grateful for the opportunity to make some general observations. I echo much of what was said by my noble friend Lord Howell in his far from tepid and excellent speech. I, too, have no hesitation in strongly supporting the concept of an international criminal court.
We all desire a more just, a more peaceful and a more secure world. No one who believes in the protection of human rights, in justice and in the rule of law could doubt the worth of the principles underpinning the International Criminal Court. No one could doubt the importance of bringing to justice the perpetrators of many of the worst crimes known to man. Yet, despite millions of victims of genocide, crimes against humanity and war crimes, as citizens of a world society, and as the Minister rightly pointed out, we have frequently failed to do so.
All too often in the past, these criminals have gone unpunished. Most clearly believed that that would be the case and they have been right. The 20th century saw a tyrants' gallery overflowing with unpunished dictators. As a result, the world is awash with men, women and children denied justice, while true reconciliation between conflicting groups or states has often proved elusive.
The establishment of the first permanent international court dealing with individual accountability for crimes against international law is a step on a hard road towards ensuring that the most egregious evils of genocide, crimes against humanity and war crimes which have stained the 20th century with blood and tears, do not likewise stain the 21st century.
In 1998, the Rome Statute established the ICC as a permanent international body to be in harmony with national judicial systems, not in competition with them. That point has been reinforced from all sides of this House. There was a strong British contribution to the complex process of instituting the statute of which we can be proud.
Before I make my substantive points on the Bill, I should like to make some general observations on the efficacy of the court which needs to be explored in further detail. While the need for action is clear, we must ensure that what we are creating is a truly legitimate vehicle for international justice. Such a body must be a powerful deterrent with a broad reach, based on global fundamental principles of justice, able to respond quickly to events and, critically, it must be above damaging accusations of selective justice, under which the strong and powerful are favoured while the weak and defeated are prosecuted. Anything less risks harm to the credibility of the ICC and to international justice.
960 Lawyers, politicians and human rights groups have all lined up to give their opinions on the ICC and controversial issues, from whichever end of the political spectrum they are viewed, have abounded. For some, it is too much world government: for others, it is too little. The seven-year wait before some countries will accept the jurisdiction over war crimes, the potentially indefinite wait in relation to the definition of crimes of aggression and the failure to tackle terrorist offences have drawn criticisms on the one hand, while issues of national sovereignty and jurisdictional borders have been equally hotly debated. The degree to which concessions were required to reach consensus on the statute, in particular in the efforts to persuade the United States of America to sign, has caused some to wonder whether the result has inevitably compromised an effective, independent and fair body. I hope that that is not the case.
Yet I do have concerns about the court's efficacy. Except when the UN Security Council refers situations to the court, the ICC will have jurisdiction over crimes only in countries which have ratified the court's statute, or by their nationals. The preconditions for the court's jurisdiction are either territorial or nationa litybased, although only one is required. But while state parties are obliged to co-operate with the ICC, non-state parties must give their consent.
Much of the debate in setting up the statute centred around the question of where the international legal boundaries should lie between sovereign states and universal human rights. There is, of course, a delicate balance, but to what extent will this limit the effectiveness of the court, since those countries with the worst human rights records are precisely those which are least likely to become parties to the treaty? Iraq and China come to mind. Furthermore, the governments of non-party states whose members may be the subject of investigation are unlikely to cooperate. If they do not consent, what can be done? Will it be impossible to prosecute crimes across jurisdictional borders if states do not consent, and where do those borders lie in reality? To what extent is the back door left wide open for those who commit crimes in countries that have refused to accept the jurisdiction of the court and does this potentially de-claw the court before it has even begun to operate? There is, of course, the mechanism by which the UN Security Council can decide that a situation presents a threat to international peace and security and refer that situation to the court under Chapter VII of the UN Charter. The court can then take action regardless of whether the state concerned is a party to the court or has given its consent.
Yet, speaking from the point of view of a layman, this creates a new set of problems. The Security Council would have to carry the resolution and the recent record of the disagreement and paralysis which has stricken the Security Council on issues from Iraq to Kosovo does not always augur well for such unanimity. The Foreign Secretary has predicted that the Security Council would have referred Saddam Hussein to the ICC, had it been in existence. But what 961 about the example of China, which is a non-state party, but which is of course a permanent member of the Security Council? What action would the court have been able to take in response to the individuals responsible for the crime of Tiananmen Square? What will the court do when faced with such acts by future world leaders of non-state parties?
The absence of American support for the statute was initially a cause of grave concern. Here I echo many of the comments made by the noble Baroness, Lady Kennedy. Without the blessing of the US, the court would always struggle to claim the global mandate necessary for its credibility. However, at the eleventh hour, in a milestone for the ICC, President Clinton signed the statute. Yet US ratification is far from assured. President Clinton made it clear that in signing, the US was not abandoning its concerns about what he called "significant flaws" in the treaty, in particular in terms of the court's jurisdiction over the personnel of non-party states. There was a further sting in the tail. President Clinton said that he would not, and did not, recommend his successor to submit the treaty to the Senate for advice and consent until the fundamental concerns of the US were satisfied. In effect, the US signature ensures a continued place at the negotiating table to influence the court's establishment, but no promises on ratification.
Only last month, Donald Rumsfeld, President-elect Bush's nominee for Defense Secretary, warned that,American leadership in the world could be the first casualty of the Court",and there has even been speculation that George W. Bush could repudiate the signature.
In a sharply-divided Congress, where Republicans have vowed that they will never ratify the treaty and the chairman of the Senate Foreign Relations Committee, Senator Jesse Helms, has promised to work to erase "swiftly and surely" President Clinton's signature, the ICC and the international system of justice is likely to become a pawn in a vicious game of partisan politics in which clashes over the court's impact on US national interests and the President's constitutional powers to conduct foreign policy will raise the stakes sky-high. I ask the Minister, to what extent do the Government consider that the American Servicemembers' Protection Bill, which has attracted considerable support and which would prohibit American co-operation with the ICC while the US is not a party and would cut off US military aid to non-NATO allies who ratify the ICC, amounts to undermining the treaty?
Naturally, there are gaps and loopholes which will need to be addressed and appropriate safeguards put in place during the Committee and Report stages of the Bill—the issue of diplomatic immunity for representatives of non-state parties; the question of who is to carry out the enforcement of ICC orders; the question of a statute of limitations in the case of ageing war criminals; and the issue of the application of universal jurisdiction and its implications.
962 I end on a slightly different note, which I hope is not a controversial one. Criminal prosecution is but one thread in the web we can weave around the perpetrators of these crimes. War crimes tribunals are not the only means of facilitating peace. In certain situations, plea bargains, amnesties and pardons can be important too. Criminal justice should never be an instrument for revenge. Contradictory though it may seem, peace and justice are not always bedfellows, but without peace there cannot be justice. Establishing the truth of what happened in order that nations emerging from a post-conflict situation are able to confront and exorcise the ghosts of their past, has as much of a role to play as criminal prosecutions. In this respect, the example of the South African Truth and Reconciliation Commission in the aftermath of apartheid has much to teach us.
In conclusion, in formulating our strategy for a more peaceful world, a one-size-fits-all prosecutorial strategy or, for that matter, a uniform preference for a non-juridical alternative, would be too narrow an approach. It is true that circumstances differ and circumstances matter. I am glad to say that the atrocities with which the ICC will be concerned are still unusual. For precisely that reason, their resolution should be too. I hope that the ICC will be a further string in our bow for achieving such resolution. I look forward to the next stages of the Bill.
§ 5.33 p.m.
§ Lord Shore of Stepney
My Lords, this very important measure raises quite fundamental questions, including, I am glad to say, the wider picture outlined by the noble Lord, Lord Moynihan, of the contribution that different approaches can make towards an objective which I am sure the whole House, without dissent, shares; that is, how best to deal with the beastliness of the misuse of power and tyranny which some countries inflict on their own people.
We have in the United Nations Charter many defences against the tyranny of aggression. Indeed, the crime of aggression of one country against another is the one great reality to come out of the post-war world and the United Nations Charter. That is why throughout my political life I, and I am sure others, have always felt that when the call came—whether in South Korea or, more recently, in Kuwait and Iraq—the international community had the obligation to act. While the acts may not have been perfect, they were part of the civilising effect of the arrangements made in our post-war era.
The great gap in our post-war era has not been so much the means and organisation to deal with cross-border aggression but what to do with the appalling tyrannies that exist within the territories of sovereign states. One is straightaway up against enormous practical difficulties—the difficulty of power, for example. I am sure that I am not the only Member of the House who has had to do quite a lot of rethinking about our approach to such issues in the light of the Kosovo war and the appalling behaviour of the Serbs in relation to the Kosovar minority. Let no one have any doubt. We crossed an enormous frontier of 963 international action and law when we waged war on Serbia for mistreatment of its own people. No frontier was crossed and no crime was committed against neighbour states—except indirectly, perhaps, when they were burdened with the vast outflow of refugees and so on—but the enormous step forward was taken of criminalising the actions, which we all agreed were criminal, of a tyrant against his own people.
I have since thought a lot about the issue, as, no doubt, have others. When I try to apply that approach to other situations in the world in which we live—either those which have occurred in the past or those which we are facing today—I find that it offers very little opportunity of redress. Can anyone imagine that we would bomb China in order to rescue the people of Tibet? Does anyone think it would be right to bomb Moscow because of Russian behaviour in Chechnya? No. It is not possible. It is possible to contemplate measures of that kind only against insignificant military powers. I do not recommend it.
That is why I am interested, not, as it were, in abandoning the attempt to deal with tyrants but in looking at the whole range of possibilities available to us if we have the intelligence and the will to apply them. That is why I am in favour of this Bill. It is one of the many measures available to us, if you like, short of waging war. Economic sanctions, diplomatic approaches and diplomatic reprisals of one kind or another are there. Looking back on Kosovo, yes, if need be, open our frontiers, however temporarily or for however long, to give some shelter against the evil oppression of tyrannical rulers. Looking back on it, that would have been a better way of trying to deal with that problem.
The intensification of measures against those who behave wickedly against their own people is something with which we should be seriously concerned. I know that noble Lords on all sides of the House share that concern and the worry about how effective the measures will be. I approve without reservation the general purpose behind the Bill. A measure that can bring to justice and punish evil men who misuse power is to be applauded.
Secondly, it must not be forgotten that if virtually all the nations concerned make it clear that they will do their utmost through international law to bring people of that kind to justice, however many years after they may have committed their crimes, it will have a deterrent effect. Those in power who are about to commit acts that are more wicked than usual will think harder about doing so. They will give thought to the fact that they may later want to retire to another country; they will wonder whether they will be arrested. Therefore, this matter should not be judged simply on its own, but as part of what I hope is a growing arsenal of effective measures which—short of waging war on countries that misbehave inside their own frontiers— can be effectively mobilised to the benefit of the many millions who suffer at the hands of tyrants.
That said, I must probe a little the provisions of the Bill. To some extent I follow the sensible approach of the noble Lord, Lord Howell, speaking from the 964 Opposition Front Bench. I say to his critics on the Liberal Democrat Benches that no Opposition can fail to scrutinise legislation in a serious way, as the noble Lord did, if it is to do its duty to Parliament. We all have a duty to examine carefully the measures placed before us.
In that context, I should like to raise a question and then home in on two worries I have. The question follows the line of thought developed by the noble and learned Lord, Lord Lloyd. I should be grateful if, in replying, the noble and learned Lord the Attorney-General would give his view on the following. If this Bill had been passed and the convention had been activated by the 60 signatories, how would that have differently affected the arrival of ex-president Pinochet in the United Kingdom? It would help to clear my mind and would possibly help others.
I turn now to my worries. The first is a minor one. The Bill enacts Articles 6, 7 and 8(2) of the statute. I am slightly surprised that noble Lords have not directed their attention more to the content of those articles. Article 6 deals with genocide. Virtually all its provisions are unquestionable and present no problem. But one or two of the categories raise questions. One such example is,actions which are aimed at destroying an ethnic or religious group … in whole or in part … by causing mental harm to members of the group".I select the words deliberately, but there is not the sharpness one might wish for in a legal document. I shall not make too much of that; it is merely that I should like to feel that opportunities are not presented in terms of loose wording for mischief makers to embarrass or to claim the headlines through judicial proceedings and so on. That, of course, partly depends on the good sense of the judges and the court. But, inevitably, as a court has not yet been established, one can only say that it is important that it should build up confidence in itself and its judgments as time goes on.
Now I must share with the House my major concern. When I looked at Article 8(2), dealing with war crimes, I could hardly believe my eyes. It provides a long list. Some items I wholly accept; they present no worry whatever—for example,Intentionally directing attacks against buildings dedicated to religion, education, art, science … Killing or wounding treacherously … Declaring that no quarter will be given".A further such example is,Intentionally directing attacks against personnel, installations [etc.] involved in a humanitarian assistance".All these are outrageous, and they are adequately dealt with.
However, I direct the attention of the House to subparagraphs (i), (ii), (iv) and (v) of Article 8(2)(b). The items come under the general heading of other serious violations of the laws and customs applied in international conflict. Sub-paragraph (i) refers to,Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities".What is air warfare about, for heaven's sake, if it does not involve such actions? The last time I had anything to do with this matter was when I was in uniform and 965 about to enter Bomber Command. I had to wrestle with my conscience, as I am sure did many others, over the question of whether it would be right to drop bombs on German cities. My answer, reluctantly, was, yes, it would be. I did not have to do so because the war ended, but that has been accepted so far as a legitimate act of war or punishment.
I am concerned, too, by the reference in subparagraph (ii) to,Intentionally directing attacks against civilian objects, that is, objects which are not military objectives".Sub-paragraph (iv) refers to,Intentionally launching an attack in the knowledge that such attacks will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment".Sub-paragraph (v) refers to,Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives".I am not an international lawyer, and it may well be that my astonishment simply reflects the fact that I have not kept up to date with the latest in the Geneva Conventions. But we have surely not forgotten the war which ended only months ago over Kosovo and against Serbia. Civilian targets? The radio and television centre in Belgrade? Objects of no obvious military use? Bridges over the Danube? Installations that have a major effect on the life of communities, as well as an environmental effect. I refer, for example, to the bombing of oil refineries and power generators. It is almost unbelievable that this part of the document should simply go through on the nod and without major amendment. Indeed, I cannot seriously believe that it will be the case.
If we read on through the document and the Bill, we see that all of this applies directly to military commanders. There will be no excuse for them if they defy the new convention and its law. Therefore, if they do partake in a bombing raid on, say, the bridges over the Danube or on the suburbs or major power stations around Belgrade, they will be committing an international offence. But what are they to do? Are they to defy their governments and obey international law? That really is nonsense. We need to hear a very considered explanation for the presence of these provisions and especially the way around them.
I may be exaggerating the position, but when my noble and learned friend responds to the debate I ask him not to conclude that I am deliberately trying to point out difficulties and possibilities that are perhaps remote or unreal. Frankly, on the face of it, it seems to me to be all too real. The problems are there in the convention that we have signed and in the Bill. Indeed, I believe that Schedule 8 lists the matters that I quoted from the convention.
Perhaps the following has some significance. We signed the document in either June or November of 1998. Of course, the war in Bosnia began in March/ April 1999. It is just possible that those who devised all these words were not in touch with NATO and its peace-enforcement mission plans. Was NATO 966 committing a crime? When the number of signatories reaches 60 and the legislation comes into effect, being, perhaps, dated from the moment of signature in 1998, will my right honourable friends the Prime Minister and the Foreign Secretary be faced with the prospect of their arrest when visiting some other country in five or 10 years' time for their activities in Kosovo?
As I said, we need answers to those questions. I am not in any way happy to have to put these points to the House. I very much hope that my noble and learned friend will be able to give me reassurances and explanations that will at least leave me satisfied for now.
§ 5.53 p.m.
The Lord Bishop of St Albans
My Lords, it would be very unwise of a bishop, not least following the noble Lord's speech, to rise to speak in this House and make simplistic and naive claims about Christianity's role in creating a just society or a just world. Our track record as Churches in this respect is very patchy. Even those claims for Christian leadership in such matters for example, Wilberforce's fight to abolish slavery—often fail abjectly to mention that there were many Christians who were in favour of slavery and who brought to their terrible arguments a plethora of biblical "proof texts" as their justification. That kind of behaviour makes me hang my head in shame.
Therefore, I am very aware of some of the appalling things done throughout history in the name of the Church. Yet I am equally aware of those very courageous individual Christians and Churches who have, because of their faith and often at great cost with great heroism, tried to change the world for the better. Notwithstanding our failures and while acknowledging them, there is within the Christian faith a recognition that in a fallen world a proper relationship needs to exist between justice and peace. In a sense and at a philosophical level, the substance of the speech of the noble Lord, Lord Shore, was just about the ethical dilemmas of the relationship between justice and peace. Further, there is now an increasingly keen awareness among Churches that the plight of the most vulnerable in our world should always be at the forefront of our thinking; and that, if any society wishes to call itself just and civilised, it will be to the care of the vulnerable that we should look to test whether or not its claims are genuine.
I warmly welcome this debate, believing that the creation of the ICC may be one of the most critical and most honourable steps that we are likely to take in our generation to create a more equitable and righteous world. But, among others that have already been mentioned, there are two areas that seem to me to require further thought. The first relates to Britain as a potentially safe haven for lesser players from overseas who may have carried out the wishes of their particular tyrannical leader. If I have understood the situation correctly—and I may not have done—I wonder whether it is just or logical that a British citizen, who served as a mercenary, could quite properly be tried in this country for committing exactly the same crimes as a foreign national. Because of our understanding of 967 the relationship between law and territory, the foreign national living in this country would not necessarily be brought to trial. If that is the case, there seems to be a great anomaly, not to say a very great injustice.
Secondly—and I may also have misunderstood this point—would it not be wise and generous to mention somewhere in the Bill, or elsewhere, the envisaged United Nations trust fund for victims? That would at least give some of the people who have suffered so severely some hope of justice.
The phrase that seems to me to sum up some of the debate comes from Nicholas Stewart, who said that our task is,to see our national interests from a truly international perspective".I believe that the redemptive and healing effect that the creation of the ICC will have upon societies that have been subjected to tyranny could well be enormous. It is for those reasons that I warmly welcome the Bill in principle. However, I recognise that trying to establish a proper and fruitful relationship between the absolute moral demands of peace and the absolute moral demands of justice will require all the wisdom and the charitable ingenuity and energy that we in this Chamber and the rest of the world can muster.
§ 5.58 p.m.
§ Lord Clinton-Davis
My Lords, I rise somewhat reluctantly and ambitiously to participate in this debate. I say "reluctantly" because the noble Lords, Lord Howell and Lord Moynihan—and, to some extent, my noble friend Lord Shore—welcomed the changes envisaged by the Bill, but they did so with a certain reluctance. It is not easy to change and, to some extent, I echo their views. But I ask each of them one question: would they prefer the Bill as it is, with all its inadequacies (the same could be said of any international statute) to no Bill at all? Of course they would not. Indeed, I hope that they would not.
The noble Lord, Lord Lester, was enthusiastic about the Bill. I also welcome it, but I welcome it in a world that is far from perfect. The United Nations is living proof of the inadequacy of the rule of international law. But would we rather have a world without a United Nations organisation? I think that the answer to that is certain and clear.
Therefore I welcome the Bill with all its faults. We should appreciate that, increasingly, nations of the world have accepted it. There is a reluctance on the part of some in the United States to accept that point of view. However, I ask those in the United States whether they would rather have no United Nations at all? Perhaps some in the United States would prefer it if that were so, but it is our burden to go ahead with the Bill as swiftly as we can, whatever its inadequacies. However, it is clear that there should be a greater degree of political scrutiny and we should be more pervasive in what we seek.
The Bill seeks to fill a serious gap in international law. It is clear that individuals who have committed crimes of genocide—we understand what that means as it has been practised in Europe—crimes against 968 humanity and war crimes should be tried. It is right that the International Criminal Court should complement national courts, as has been argued.
If we have criticisms, they do not seek to undermine the Bill but to improve it. The noble and learned Lord the Attorney-General may respond to criticisms when he replies to the debate, but there is still some point in placing on record some of the alleged deficiencies in the Bill.
First, with regard to the International Criminal Court itself, how many states have to ratify the statute? We have heard a number of different comments on that point today. I hope that the noble and learned Lord will make that point clear. To its credit, the United Kingdom signed the statute last November. It is now in a position to ratify. In my view it should lead the way in that regard.
The Government received some 45 submissions from a number of people who had read the original Bill. I am told that as yet the report has not reached the Library of this House. I hope that the noble and learned Lord the Attorney-General will be able to inform us whether and in what way the Bill reflects the submissions which have been made.
I am told that the Bill does not include the crime of aggression. What progress, if any, has been made in defining that crime? Will the House be given its place in coining such a definition? I know that we have at least seven years after the statute has come into force, but perhaps the noble and learned Lord the Attorney-General can give us some idea of the timetable.
I turn to the question of legal aid. So far legal aid has been organised on a national basis The noble and learned Lord the Attorney-General will correct me if I am wrong, but I believe that legal aid is determined by the courts in which the defendant is due to appear and it does not apply outside England, Wales or Scotland. How can legal aid or legal assistance—if there is a distinction between the two—be applied as regards the International Criminal Court? The Explanatory Notes remain absolutely silent on that point. The issue may be referable to another enactment. The noble and learned Lord the Attorney-General obviously approves of that argument because he nods affirmatively. But is it not possible for the Bill to refer to that issue? We should not have to identify what the noble and learned Lord the Attorney-General has to say with regard to the Bill. It should be made clear in the Bill.
A defendant may have no or insufficient means to employ a suitable advocate. The case may not attract much attention. Paragraph 53 in the Explanatory Notes refers to a number of issues but I do not believe that it refers to legal aid. Why is that? That matter should be referred to in clear terms.
Paragraph 54 refers to powers conferred by the Bill,to facilitate the voluntary attendance of expert witnesses".But, frankly, I do not understand it. I think that the issue ought to be made clear in the Explanatory Notes. I ask the noble and learned Lord the Attorney-General to make it clear this evening. I do not believe that the 969 voluntary attendance of expert witnesses ought to be left to chance. What precedent can he cite in support of any argument that he seeks to adduce?
Finally, paragraph 21 of the Explanatory Notes headed "Proceedings for delivery order" refers to Article 59.2 and states that,The Statute does not … specify which rights must be respected and nor does it specify what is to happen if the judicial authority determines that there has been a violation of (b) or (c)".Paragraph (b) of the article states that,the person has been arrested in accordance with the proper process".Paragraph (c) states that,the person's rights have been respected".The Explanatory Notes continue:In particular, nothing in the Statute allows a State to refuse to surrender a person to the ICC on the grounds that the person has not been properly arrested or his rights have not been respected".I do not understand that. I have been a lawyer for some 47 years. We should not have an issue where lawyers of my standing do not understand the point the Government seek to make.
What I have said amounts to a Committee point. My noble friend Lord Shore will agree because he made the point in the first place. These may be Committee points but they are of such importance that I hope the Attorney-General will make clear in his winding up speech the Government's stand on them. I welcome very much the enactment of the Bill. I hope that the number of countries which will ratify and sign up to its purposes will be numerous indeed.
§ 6.12 p.m.
§ Viscount Waverley
My Lords, perhaps I may give double congratulations, first, to the Government on bringing forward this Bill, and, secondly, to the noble and learned Lord, Lord Archer of Sandwell, who has worked tirelessly on the issue. I hope that he feels a sense of personal satisfaction today.
The Minister's opening remarks were detailed and I look forward to the opportunity to digest them. From both the noble Baroness and Peter Hain, the Foreign Office Minister, we have a commitment from this country to tip the international balance away from impunity towards justice. However, while I am delighted that Britain will put its full weight behind the establishment of the ICC we must, I believe, attempt to ensure that this Bill will be sufficient to ensure the proper functioning of the court in the exercise of international justice.
International law has long been described as an imprecise science based as it is in part on state practice. It would be unfortunate if we added to the overall complexity by introducing unclear or incomplete definitions of war crimes; or failed to include aggression as a war crime—a point raised by the noble Lord, Lord Clinton-Davis; and if issues of jurisdiction and referral are not clarified.
Who will decide when a country has proved unwilling to investigate? Are there adequate existing international standards of universal applicability? Is 970 the court's remit perhaps a little too broad in these early stages? Are we seeking to try the "top dogs", the leaders, at the ICC or, as some would have it, any individual who commits, orders, facilitates or otherwise assists in the commission of the crime? If it is the latter, the court will be overburdened and parallel truth and reconciliation approaches will have no opportunity to thrive.
Any legal system survives because it has the consent of the majority of those to whom it applies. We must be careful to ensure that the same applies to the jurisdiction and enforcement mechanisms of the ICC. We must be quite clear that this initiative is a genuine one and not an exercise in politicking. If we so disable the court at its inception that any exercise of independence or impartiality is impossible, then it will lose credibility and moral authority. Universal jurisdiction must be accompanied by universal application.
No one can be above the law. On a previous occasion during an Unstarred Question, I sought to introduce consideration of terrorism and narcotrafficking as crimes against humanity. Obviously the possibility of British nationals' involvement, in particular in funding these operations, is considerable. Is there scope for inclusion under Article 7, section 35(k)? If not, I again ask the Minister to widen consideration to those areas.
I believe we all know that in the area of terrorism organisations and individuals based in the United Kingdom are funding or otherwise aiding terrorism outside the United Kingdom, generally giving this country a reputation as a safe haven. If I heard the Minister's remarks correctly concerning the international targeting of individuals, am I to understand that from this point on individuals who are deemed to have ordered, for example, an execution of an individual abroad would now face the ICC, should the UK system elect not to pursue justice? By extension, will proven funding of an overseas terrorist organisation now finally be stopped by the UK authorities, so rendering it unnecessary for a state signatory to pursue the case through the provisions of the ICC?
In conclusion, it is vital that we not only record our commitment to establishing the ICC but that we ensure that every safeguard is in place to deliver international justice. That is the clear message that the world's tyrants will fear.
§ 6.18 p.m.
§ Lord Campbell of Alloway
My Lords, the need for such a court has been recognised by every noble Lord who has spoken. However, the main problem is how to resolve the practical difficulty of impleading the strong. That has been referred to in some detail by my noble friend Lord Moynihan' the noble Lord, Lord Shore, and others. It is as yet a practical difficulty which has not been resolved and may not be able to be resolved. But it is right that if possible an all-but-universal norm should be set to deter and serve as an aid to peacekeeping and diplomacy and, when 971 possible, to be enforced by arrest, adjudication and sentence. It will be welcomed no doubt as a beacon of light for those of whatever origin or faith, or none, who in times of peace or war, or in situations short of war, could suffer grave, perhaps the ultimate, indignity.
The court is assuredly a grand design, rooted and grounded in justice, the servant of human society, which could afford an effective means of resolution when the age-old fault lines erupt with volcanic intensity, but would it? Military intervention has afforded no lasting settlement and justice could do so only if it could reach out to and deal with the strong as well as the weak and not become a cosmetic exercise or a placebo for the conscience of the world.
There is much on which we have to be satisfied before we can ratify. I agree with my noble friend Lord Howell of Guildford that we should not rush to ratification. There are serious reservations, particularly in the United States, which have been referred to by my noble friends Lord Howell and Lord Moynihan and others. There are improvements to be considered and appropriate safeguards to be introduced. As the noble Lord, Lord Lester of Herne Hill, rightly said, the Bill stops short of a satisfactory basis for jurisdiction. It fails to implement the complementarity principle—that is terrible treaty jargon. In those regards, it requires amendment.
Articles 6 to 9 of the statute can be amended only by members of the assembly of state parties. I read Article 8(b) with incredulity and would have referred to it, like the noble Lord, Lord Shore, if I had not been going to refer to another aspect of Article 8, to which I shall come in a moment.
Consideration must be given to improving the safeguards not only in the matters under Article 8(b)(i to iv), but for prisoners of war taken in international armed conflict, who are not covered by Article 8(c)—indeed, they are excluded. An agreement on those matters should be sought before ratification. We must ensure that threatening a prisoner of war with any form of slavery or humiliating or degrading treatment, implementing such a threat or selecting or using a prisoner of war as a hostage is expressly prohibited.
Relevant material is available from the Ex-Prisoners of War Association, of which my noble friend Lord Haig, who was one of the pre-selected hostages held at Colditz, is president. This narrative demands a declaration of interest, as I spent nearly five years of an indeterminate life sentence in Colditz, until I was fortuitously released in mid-April 1945 on the surrender of Colditz to the United States armed forces. That was fortuitous, as the castle was not designated as a prisoner of war camp on the campaign maps. The German armour was around the camp pending re-engagement. But for a home-made Union Jack, which was spotted by chance fluttering in one of the heavy artillery gun sights, we should have been taken out. As President of the Colditz Association and an erstwhile gunner subaltern on the reserve, one does not presume to speak on behalf of members, some of whom were of field rank and later became admirals or generals. The few members who survive prefer to speak for themselves.
972 My speech may disturb some noble Lords, as the House must recognise that if Hitler had won the war, the disposal of prisoners of war would have been truly horrendous. Colditz, a former palace of Saxony, remained in use as a lunatic asylum until it was occupied by an international closed community of prisoners of war from the three armed services. We were under the disciplinary command of our respective senior officers. There was a joint command on escape co-operation.
Over five years, the composition varied from time to time. That is relevant to the proposed new provisions. In the early days we were 25 in the British quarters, under the command of Colonel German. There was a massive presence of French, under the command of General Le Brigant. There were also Dutch and colonial troops and the brave remnants of the Polish cavalry. At the time of our release, there were many more British, together with Australians, Canadians after Dieppe, with one VC, New Zealanders, with another VC, Czechs, Poles and Yugoslays who had served with the RAF, Gaullist French and SOE, all under the command of Colonel Tod. The Americans were under the command of Colonel Duke and the Poles were under the command of General BorKomorowski. By that time, the French and Dutch were no longer with us, having been removed in 1943. Just before our release, a number of prisoners of war with family connections of no little consequence who were held at Colditz as hostages had been removed ahead of the US advance. I shall return to that in a moment.
In the early days, before the tide had turned in the battle for the Atlantic and before the United States entered the war, a tannoy was rigged up in the courtyard to give us a chilling blow-by-blow account of each disaster befalling every stricken or sunken vessel. A Feldwebel—a sort of RSM—came up and said, "For you the war is over. You will be put to work in the salt mines of Silesia. Without an eye guard you will go blind within three months and you shall die there". There is reason to believe that that was not his own idea, but a message. It was then state policy to use those from occupied territories for slave labour. Later, Russian prisoners of war taken on the Ostfront were so used. The Geneva Convention would have been repudiated as yet another scrap of paper. There was no international criminal tribunal and no way in which the implementation of state policy could be obstructed. If Hitler had won the war, all of us at Colditz—all prisoners of war—would have been liable to be put to slavery, and assuredly many would have been.
Perhaps I may return to the prominentes, which included Elphinstone, Lascelles and Hopetoun Winant, as they then were, Haig, Winert, the son of the United States ambassador at the Court of St James, Romilly and others. On 13th April 1945 they, together with General Bor-Komorowski and the Polish officers under his command, were removed from the castle to be taken to Hitler's last fortress at Berchtesgarten. That was so that, when put to torture, their lives could be bartered for the freedom of those later condemned at Nuremberg. 973 The plan was devised probably in the wake of Stalingrad, when it occurred to the German high command that they might not win the war. The prominentis were selected as part of the plan and were kept in separate quarters and guarded night and day.
Fortunately, the senior British officer, Colonel Tod, had forewarned the Swiss protecting power on his last visit prior to the United States advance, as we knew from our radio. Therefore, when they reached Konigstein, the Swiss intervened and persuaded General Berger to give them safe conduct through the German lines and then took them and handed them over to General Patch at the United States headquarters in Augsberg.
This narrative of events, when Hitler and those condemned at Nuremberg knew that they had lost the war, is relevant to the proposed provisions for further protection to which I refer. When the noble and learned Lord comes to reply, I wonder whether he could advise the House whether, in his opinion, there is a case for further provision. Article 8 makes no provision for dealing with any of these matters. I wonder whether the noble and learned Lord could also advise the House whether trials within the remit of Articles 6 to 9, in which the victor impleads the vanquished, should henceforth be conducted by the ICC. Could he also advise whether, when the ICC has been set up to implement the statute, an indictment laid under the War Crimes Act would be remitted to the ICC for the conduct of proceedings and whether the War Crimes Act should remain on the statute book. I apologise for making such a long speech.
§ 6.33 p.m.
§ Lord Archer of Sandwell
My Lords, it is not on every occasion when I intervene in a debate that I shower praise on the Government. Even today, I do not pledge my unqualified approval for every jot and tittle in the Bill. But fair's fair. The Government's record in the negotiations leading to the statute, in their lobbying since the statute, and in finding time for this Bill despite the other pressures on their legislative programme, have earned not only my approval—whether or not that may serve as a comfort to them—but the approval of a wide sector of civil society not usually noted for its praise of governments of whatever political complexion.
Both my noble friends on the Front Bench have earned a special commendation for their appreciation from the beginning of the negotiations of the importance of this opportunity. Without appearing too fulsome, perhaps I may add a word of gratitude to my right honourable friend the Foreign Secretary, who I believe will be long remembered for his vision in this as in other matters.
As the noble Lord, Lord Lester, and the noble Viscount, Lord Waverley, were kind enough to remark, some of us have waited a long time for this day. When I first emerged from my political chrysalis—admittedly deep in the recesses of history—the prevailing wisdom was that governments had a 974 duty to protect their own nationals so far as they could within the rules of private and public international law, to punish their own nationals when within the jurisdiction they committed offences against nationals of other countries, and, beyond that, simply to maintain law and order within their borders. National sovereignty was sovereign.
However, in the 20th century events in Europe, which had believed itself to represent the ultimate in civilisation, persuaded the world that while bullies and tyrants anywhere could murder and butcher with impunity, peace and security were endangered everywhere because we humans are members one of another. Even in 1945 the International Law Commission began to explore the concept of an international jurisdiction. When in 1947 the General Assembly discussed the genocide convention, the topic was widely, if not particularly loudly, ventilated.
As my noble friend the Minister said in opening the debate, more recent events have reawakened the world's imagination. Events in Yugoslavia, Rwanda and Sierra Leone, which have been mentioned by a number of noble Lords, have persuaded governments that there are some depths of human wickedness and some degrees of human suffering which cannot be dismissed as someone else's business, and that agreeing on standards and insisting on judgment are the right and the duty of the global community.
We come to this debate from differing backgrounds. The noble Lord, Lord Campbell, spoke very movingly of his own experiences. My noble friend Lord Shore made a rather different point. But all of us agree that those who contemplate committing horrific crimes against humanity should know that they will suffer the curse of Cain, and that the blood of their victims will follow them wherever they seek to hide, not primarily out of malice towards them but, it is hoped, for the protection of their potential victims.
We are debating the Bill; we cannot amend the statute. Of course, criminals may evade justice in one way or another. That is true of any criminal. However, like Senator Pinochet, who was mentioned by the noble and learned Lord, Lord Lloyd, they can never be sure what the future will hold. Of course the statute was a compromise; otherwise, we would never have got a statute. But it is not the end of the story; it is the beginning. And it will be a continuing process towards the global rule of law.
It is a jurisdiction which can be made effective. When I last checked, the International Criminal Tribunal for Rwanda had already recorded seven convictions and 35 cases were awaiting trial. The Security Council has found it necessary to authorise the appointment of more judges. No one ever considered that there would be thousands of convicted war criminals in prison—simply enough to make political mass murderers stop and think.
We have just seen an international tribunal take place in Tokyo to rule on the allegation of sexual slavery practised by the Japanese army during the Second World War. A few weeks ago I noticed that the National 975 Council of Resistance in Iran had called for an international tribunal to try certain of the mullahs for murder and torture.
Of course, now that the world has accepted the responsibility of the international community to protect victims, there will be a temptation to drag that concept into political controversies. After the Falklands war, there were allegations of war crimes by British military personnel. They were investigated, I believe, carefully and rigorously, by the Metropolitan Police, and considered by the Director of Public Prosecutions, although and no further action was taken. It might have been more satisfactory, particularly for those against whom the allegations were made, if they had been investigated under a reputable international procedure. I fully take the point made by my noble friend when she introduced the debate about complementarity.
One great advantage of a permanent court, an agreed statute and established procedures is that proper safeguards for defendants can be institutionalised and the court can be insulated from improper political pressures.
Having played a commendable role in the negotiations leading to the statute, the Government are understandably anxious to be among the first 60 ratifications. I pay tribute to the many NGOs, some of them mentioned by my noble friend Lady Kennedy, which have campaigned for this result and which have—I hope that my noble and learned friend the Attorney-General will confirm this—made available to the Government a body of expertise that even the Government's own experts found helpful, in particular those NGOs that formed the coalition for the International Criminal Court. Expertise is not the monopoly of governments, and dialogue between the Foreign Office and civil society can be a source of enrichment to both.
The Bill is to be welcomed for many reasons. Internationally, it is a the pledge that Britain is not about to repeat the mistakes made so often during the past half century of absenting ourselves when a new adventure was taking shape but, when events drove us willy nilly to the table, complaining that if we had been there earlier we should have suggested something different.
Domestically, it is to be hoped that if national governments provide a domestic jurisdiction for dealing with some cases, that would alleviate the need to channel them all through the international procedure. The great benefit is the establishment of an international culture, as my noble friend Lord Shore of Stepney said. At a date not far in the future I believe that even the American Senate—I emphasise the Senate—will admit that some of the disasters that some of its members predicted have proved to be false prophecies and will accept that no state claiming a place in the community of nations can hide permanently in the 19th century.
I turn, admittedly belatedly, to the content of the Bill. It is disappointing that, as so often when a British government have played a noble role and could have 976 taken the stage and received the applause that the world was waiting to accord, they could not quite bring themselves to rise to the occasion. The Government could have included in Clause 51 a provision conferring on British courts a universal jurisdiction of the kind that is already on the statute book in the Geneva Conventions Act. That would have avoided some of the problems arising from the complementarity principle, alluded to by the noble Lord, Lord Lester. At a later stage in our deliberations, some of us may seek to institute further discussions about that. I assure the noble Lord, Lord Howell, that he will not be totally alone. The Government are clearly open to dialogue. It appeared from the consultation document that the Government were contemplating retaining diplomatic immunity for offences under the Bill so that a future Pinochet could still rely on a principle that was never intended for that purpose. They have listened. That fact is reflected in Clause 23, although there still appears to be a gap in the domestic jurisdiction, which is open to discussion.
However, I say at once that I do not propose to embark on a game of poker with my noble friends. I answer the question of my noble friend Lord Clinton-Davis: if the Bill were lost, or if it did not proceed quickly enough to enable us to be among the first 60 ratifications, the tragedy would far outweigh our disappointment about a Bill that could have been better.
I hope that I will be permitted a closing comment in this debate, which many people will read. There may be those among my friends in NGOs who believe that they should lend their support to nothing less than the whole of what they had hoped for. That dilemma does not arise for the first time. In 1833, when at long last the anti-slavery movement in this country was in sight of the objective that it had fought and hoped for—the abolition of slavery in the British empire—the movement split because the government offered emancipation subject to a provision imposing a period of apprenticeship on freed slaves, and compensation for the former owners. William Wilberforce was dead, and Thomas Buxton, who led the movement, believed that the best should not be the enemy of the good. He and those who agreed with him accepted the government's terms. There were others who accused them of betrayal, but there are few historians of the movement now who blame them—certainly not the liberated slaves and their descendants, nor the potential victims.
I believe that we are privileged to take part in this historic debate, and I venture to predict that within a generation the concept of global responsibility for crimes against humanity will have become so much a part of the global legal order that most people will have forgotten that there was a time when it had to be worked at.
§ 6.46 p.m.
§ Lord Monson
As one of the minority of lay Members speaking this afternoon, I am not qualified to discuss most of the technical details of the Bill but I would like, if I may, to comment on its principles and 977 implications. I must try to do so with caution, otherwise Members of this august Chamber may suddenly resemble a Bateman cartoon, with hair standing on end, jaws dropping and hands raised in horror. From that, one may deduce that I have considerable reservations about the Bill, heretical though these words may sound.
First, the Bill is surely yet another step in the direction of world government. As I pointed out the first time that I inflicted my views on the public at large 40 years ago, if a world government were in place, there would be no political asylum for anyone anywhere. Moreover, a world government would soon become a tyranny—a benign tyranny, of course. However, a benign tyranny that is utterly convinced of its own righteousness is in some ways more alarming than a malign tyranny, which usually contains within it the seed of its own eventual destruction, in the form of the human conscience. However, those sentiments will cut little ice with those who are either indifferent to or enthusiastic about the prospect of world government, and I shall therefore give some further reasons.
An international criminal court, like all similar organisations and all bureaucracies that have ever existed at any time, is bound to become more and more activist in order to justify its existence. That has nothing to do with weaknesses or failings of individuals—those working in the court will doubtless be of the highest calibre and will be motivated by the noblest ideals—but it has everything to do with the eternal verities of human nature. That is bound to mean that sores will be re-opened, when those on the spot may have decided that the lesser of two evils is either to let sleeping dogs lie or to deal with past oppression and violence by means that exclude criminal prosecution and may even exclude civil restitution. In other words, they take the view that there are some objectives that must take precedence over justice. One thinks, first and foremost, of South Africa post-apartheid, post-1975 Spain, post-1990 eastern Europe, where there have been hardly any prosecutions, and, of course, of Northern Ireland. How disconcerted the British Government would be if an international body, composed mainly of individuals living thousands of miles away with little knowledge of the situation on the ground, declared that justice must prevail and that those deemed guilty of mass murder or torture must not escape prosecution and, if convicted, must not be released after serving no more than a year or two of their suitably lengthy sentences.
If the Bill had come into existence, say, 55 years ago in 1946, the court would have had its hands full, what with the killing of approximately one-third of the population of East Timor and the now largely forgotten earlier killings of tens of thousands, some claim hundreds of thousands, of Chinese throughout Indonesia on the grounds that they were Communist sympathisers; massacres by both sides in Vietnam; massacres when Bangladesh was breaking free from Pakistan; massacres at the time of Indian partition, 978 though they may have been more spontaneous than directed from above; massacres in Algeria both before and after 1962; massacres by Syrians and, to a lesser extent, Lebanese, Israelis and Palestinians; and in Europe the expulsion (and sometimes the murder) of over 1 million Sudeten Germans up to one year after VE Day.
If the Bill had been in existence before World War II, it would have had to pursue not only German and Japanese war criminals, but would also have had to go into numerous Russian atrocities which are unaccountably omitted from the War Crimes Act. The writer, Anne Applebaum, described how, when Soviet forces invaded East Prussia early in 1945, they literally crucified German women, children and elderly men by nailing them to barn doors. We all know about the rape of tens of thousands of women from eight to 80 in Vienna. Of course, those were acts of revenge; they did not occur in a vacuum. But revenge has never been held to justify such behaviour.
The court might have overridden Churchill's decision (taken for raisons d'état) not to prosecute Italian generals responsible for atrocities in the Balkans in 1943 following the Italian surrender. It would also have to examine the thankfully many fewer war crimes perpetrated by the western allies. I remember vividly a school lecture in 1944 in which an American brigadier general boasted that during the Italian campaign he ordered his men to take no prisoners at all. Even at the gung-ho age of 12 in the gung-ho atmosphere of successive allied victories at that time, I found that boast somewhat disconcerting.
The British Army of course—this is universally agreed—behaved better than anyone else. But even we were not immune, as I know from reliable first-hand accounts from people who served both in the European and Pacific theatres. I was thinking originally only of killing prisoners in cold blood. But from what both the noble Lord, Lord Howell, and the noble Lord, Lord Shore, said, it would appear that the Bill, if it had been in force then, provides that our airmen could have been prosecuted for bombing residential areas of German cities.
If the court had come into existence as long as 80 years ago, it would presumably have had to prosecute those who drafted and signed the 1923 Treaty of Lausanne, which set in motion ethnic cleansing on a truly massive scale, as well perhaps as those who expelled at gunpoint at least 110,000 Protestants and pro-monarchist Roman Catholics from the south of Ireland at approximately the same time.
Despite all that, it may be argued that provided states could be given the right to opt out of the provisions of the Act in favour of reaching their own internal settlements, a permanent court would surely be preferable to the present ad hoc arrangements which are apparently favoured by most, I read, of the United States Senate and Congress. In principle I agree. There is something distasteful about only going for "soft" targets, such as leaders of small countries which are not nuclear powers, which possess no oil or other mineral reserves to speak of, which are not 979 strategically situated, whose inhabitants are not adherents of a religion which promises eternal paradise to those who are killed in combat fighting for their faith and where there is no huge Diaspora scattered throughout the western world, some of whose members are likely to commit acts of terrorism or sabotage if they felt their leaders back at home were being unjustly persecuted, as they saw it.
So casting the net wider than those relatively small number of countries is right in principle. But in practice things are likely to turn out rather differently, as both the noble Lords, Lord Howell and Lord Shore, pointed out. However badly they behave, I do not believe that politicians or military men from Russia, China, Burma, Indonesia, Iran, Iraq, Syria, Libya or Algeria will ever come before the court as far ahead as one can reasonably look. I have my doubts too about those from the United States, India, Pakistan, Nigeria, most Latin American countries and Israel. At risk, therefore, will be those from smaller countries like Sri Lanka or Lebanon, or some of the less important African nations together with those from western and central Europe, and highly improbable candidates like Canadians and New Zealanders.
Even so, it will no doubt be argued, is not imperfect global coverage better than virtually no coverage? Even if only a handful of people are deterred in practice from inflicting unnecessary suffering, is that not worth it? The answer has to be "perhaps". One of the reasons the answer cannot be "definitely" is that the prospect of prosecution may encourage a ruthless politician or soldier to go much further than they originally intended by making sure that they eliminated all potential witnesses to their crimes.
Finally—this may be Committee stage material and if so I apologise for raising it now—I should like to say a brief word on Schedule 8, Article 8, which lists war crimes. Ridiculously, dumdum bullets are outlawed, but not the new bullets which splinter into 100 or more fragments when they hit human flesh, causing far worse injuries than a soft-nosed bullet does. Nor are the thermobaric bombs and shells used by the Russians against the people of Grozny, the blast from which apparently sucks people's eyeballs out, among other things. Surely something ought to be done about those omissions.
§ 6.57 p.m.
§ Lord Goldsmith
My Lords, I too warmly welcome the introduction of this Bill, which will enable this country to ratify the statute of the international criminal court.
This Government played an important role in securing agreement on the statute of the court. If I may say so. the commitment more generally of this Government to human rights is very much to be praised. In the Human Rights Annual Report 2000, my right honourable friend the Foreign Secretary said,No British Government has given a higher priority to human rights than this one".I agree. That has been evident not only in the domestic sphere, particularly with the introduction of the Human Rights Act, but also in foreign policy; in the 980 conduct of the Government as regards Kosovo, Sierra Leone and in relation to this Bill. So it would be entirely fitting for the United Kingdom to be one of the founding members of the court by being among the first 60 to ratify the statute.
Why is the court so important? If I may say so, that has been powerfully explained by my noble friend Lady Scotland, by my noble and learned friend Lord Archer with passion, by the noble Lord, Lord Lester, and, with clear logic, by the noble and learned Lord, Lord Lloyd of Berwick. It is particularly plain, if he will forgive me saying so, that when one of the more hesitant voices in the Pinochet case supports this Bill as an important step towards justice and world peace, that should be very much heeded.
The preamble to the statute says that the court has a purpose; that is, to put an end to impunity for the perpetrators of grave crimes, and thus to contribute to the prevention of such crimes.
As my noble friend Lord Shore clearly demonstrated, that deterrent element is an important part of what the court will produce; that is, the fear that prosecutions may in future come about if particular conduct is engaged in. The need is for the court to establish individual accountability for the violation of international human rights' standards. No clearer justification for the court can be found than in statistics provided by the United Nations on its website. I find such statistics both horrifying and hard to believe. In the past 50 or so years there have been 250 conflicts; 86 million civilians, mostly women and children, have died, and over 170 million people stripped of property, rights and dignity. Many are simply forgotten while the men responsible walk free. The court is needed as a most important element in the strategy of trying to bring to an end that sort of injustice and evil.
At the heart of the need for the court is a need to reassess the idea of state sovereignty. It was probably John Austin, in his lectures in jurisprudence in University College in the early 19th century, who most developed the idea of state sovereignty; the idea that law is a body of rules fixed and enforced by a sovereign political authority that led to the view that there could be no such thing as international law as there is no sovereign political authority able to enforce it. It also led to the view that no individual within a state could complain outside that state about treatment because it was for the state, the sovereign political authority, to determine what happened in that state.
In many ways sovereignty is a good concept. It allows citizens to order their own affairs without external interference from powerful neighbours. But sovereignty—or at least this exaggerated notion of sovereignty—has also provided an excuse for despots behind which they can hide to justify no interference in the domestic affairs of the country. Many changes have been made over the past 50 years which have led towards an erosion of that sovereignty. However, it will take this court finally to establish not just that there are international standards but that there is a proper mechanism to enforce them.
981 In 1950 the great international lawyer, later a judge of the International Court of Justice, Hersch Lauterpacht, stated:the individual has now acquired a status and a stature which have transformed him from an object of international compassion into a subject of international right".Perhaps at the time that statement was more wishful thinking than fact, but the court could make it now a reality.
Those are my reasons for warmly supporting the Bill. Before I turn to the content of the Bill, perhaps I may comment on two particular themes which have emerged in the debate. First, the noble Lord, Lord Howell, started warmly to support the Bill. However, he appeared to lose his enthusiasm towards the end of his remarks. I respectfully suggest that one should look carefully at the points he made. I did not find them persuasive. Perhaps highest among them was the concern that the statute establishing the court might not give rise to the rights of fair trial to which citizens of this country are entitled. He put that on the basis that that was a concern of the United States. I am not sure that it is the concern of the United States or those concerned about this statute, or whether the idea of a politicised court, the fear of an interference with sovereignty, does not lie more at the heart of those concerns.
However, when I look at the statute of the court—I respectfully urge the noble Lord, Lord Howell, to do so—I find all sorts of safeguards. In Article 15 I find the basis for an investigation by an independent prosecutor. Article 22 contains the principle that there should be no criminal responsibility unless the matters constituted a crime at the time. Article 40 contains the idea that the judges as well as the prosecutor must be independent. I could go on through the statute to the right of appeal. However, I draw particular attention to Article 67, which provides the provisions for a fair trial: the right to be informed in detail of the charges; the right to have adequate time for preparation of a defence; the right to be tried without undue delay and the right to examine and cross-examine witnesses—indeed, all the safeguards which we find in the European Convention.
I understand that in the United States there is a different constitutional issue, on which not all lawyers agree; that is, whether there is a problem under the United States constitution in allowing a "foreign court" to try US citizens. That is not our problem. I very much hope that it is one which the United States' authorities will overcome.
The second theme raised was a concern that the statute—it is the statute and not the Bill—may go too far in the definition of certain offences. My noble friend Lord Shore developed that point with power and eloquence. I am not a public international lawyer. However, my understanding from that deficient background is that the statute identifies what is now recognised to be the definition of war crimes. Perhaps I may briefly refer to the example given by my noble friend, which is reproduced in Schedule 8 and relates 982 to incidental loss of life or injury. I draw attention to the fact that the full provision contains a number of important safeguards; that the act should be intentional and done in the knowledge that certain events will occur. In particular, the question is whether that incidental damage, injury or loss of life would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
I believe that it is only in the clearest cases, in which there have been direct and deliberate attacks on civilians for no discernible military objective, that that definition would apply and that today we would say that that is, indeed, a crime.
The two strands of concern about the Bill are not ones I share. However, before I conclude I wish to make two other points. The first relates to the question of diplomatic immunity. I readily acknowledge the great improvements to the Bill which have been made. The addition of Clause 23 to deal with diplomatic immunity is undoubtedly one such improvement. However, a distinction is drawn between diplomatic immunity attaching to a person by reason of connection with a state which is party to the statute and one which is not. In at least two cases the court may have jurisdiction though that particular exception for immunity would not apply. I refer first to the case in which the person is subject to jurisdiction because he has committed these offences in another country of which he is not a national, and it is only that other country which is a party to the statute, and, secondly, to cases where the Security Council refers the matter to the court. Perhaps when my noble and learned friend the Attorney-General replies he would indicate whether there is still concern over immunity and how that might be dealt with.
The other more important question was referred to by several speakers, most recently by my noble and learned friend Lord Archer of Sandwell. It is the accountability gap. Only when all states are parties to the statute will it be inevitable that the court has jurisdiction in all cases. That will not happen—or will not happen for a long time. Yet this country could itself have taken universal jurisdiction by not limiting, as Clause 51 does, the right to prosecute to the case of British nationals or offences committed in this country.
As the right reverend Prelate the Bishop of St Albans said, it gives rise to anomalies. The situation could arise where two people residing in this country are both accused of commiting the same atrocities. However, as one is a national and the other is not, we could prosecute the one but not the other, notwithstanding that there might be the clearest evidence and the clearest public demand for prosecution.
There is a second anomaly. We have universal jurisdiction in certain cases; for instance, the convention on torture and certain breaches of the Geneva Convention. In those cases, we can prosecute those who have committed offences abroad who are not British nationals but are sheltering in this country. It is anomalous that we could prosecute a man for torture but not for murder.
983 I accept that those are important and difficult questions, but I hope that the Government will think again about whether they can take the step of filling the accountability gap. People are already raising the spectre that the United Kingdom might become a safe haven for war criminals and those who commit atrocities. That would be terrible. I understand that Canada, New Zealand and Belgium in their statutes have assumed universal jurisdiction but that Germany and Switzerland, to name but two, have indicated their intention to take on that jurisdiction. Therefore, I hope that the Government will reconsider the issue.
Subject to that important point, I repeat my warm support for the Bill. Secretary-General Annan described the statute as,a giant step forward in the march towards universal human rights and the rule of law".The statute is not perfect; it has compromises. It is not the only instrument to secure universal peace and justice but it is an important one. By introducing the Bill, the United Kingdom will continue to take a lead in the march towards that universal peace and justice.
§ Lord Campbell of Alloway
My Lords, before the noble Lord sits down and in view of his criticisms of the speech of his noble friend Lord Shore, perhaps I may ask him to look at paragraph 2(b)(ii) of Article 8 which appears at the top of page 63 of the Bill. The noble Lord, Lord Shore, said that that provision was liable to misconstruction; that it was not a realistic presentation. In order to save time, I take only one aspect but it is most important. The provision states:Intentionally directing attacks against civilian objects".I suppose that the railway tracks to Auschwitz were civilian objects, as were the engines driven around Germany pulling trains. They were objects which were not military objectives. Therefore if the allied high command says that the railway tracks to Auschwitz and the engines are military objectives that is all right, so what is the object of the provision?
Does not the noble Lord, as a lawyer, agree with the noble Lord, Lord Shore, that those provisions should be examined?
§ Lord Goldsmith
My Lords, far be it from me to do so; I do not have the noble Lord's distinguished record. However, I should have thought it clear that there will be circumstances in which roads, generators and bridges are military objectives. Perhaps I may make two other points. First, we are talking about the statute and not the Bill. We cannot amend the statute; it exists. It may not be perfect but it is what we have.
Secondly, I turn to the safeguards in the statute. They are, first, an independent prosecutor who must investigate the material; secondly, a pre-chamber which must decide whether a warrant shall be introduced; thirdly, a confirmation of the charges before a trial takes place; fourthly, independent judges 984 to determine it; and, fifthly, that the Security Council can still suspend investigations if it considers it appropriate to do so. Those safeguards satisfy me.
§ Lord Campbell of Alloway
My Lords, perhaps, by leave, I may inform the noble Lord that in my speech I made it plain that the statute could not be amended. That is why ratification should be delayed.
§ 7.16 p.m.
§ Lord Blaker
My Lords, the noble Lord, Lord Shore of Stepney, who I am sorry is no longer in his place, raised with some incredulity several questions about the list of crimes in Article 8 within Schedule 8. My noble friend Lord Campbell of Alloway, in his speech and in his recent intervention, reverted to that topic. My interest is in paragraph 2(a)(i) of Article 8, which refers to wilful killing. Having been Minister for the Armed Forces at the time of the sinking of the "General Belgrano", I shall await with interest the reply of the noble and learned Lord the Attorney-General on this subject.
I support the Bill and hope for the success of the court. I am concerned that it should have wide and general support. I propose to point out some of the factors which I believe it should take into account if it is to succeed in earning that support.
The background against which the debate is taking place is a steady erosion of national sovereignty. The setting up of the court is a further step in that erosion.
That erosion has been caused by a number of factors with which we are familiar. I refer to two terrible world wars; disorder in the world following the end of a number of empires, including the Soviet empire; the unbelievable speed of global communication; and the military intervention in Kosovo, referred to by the noble Lord, Lord Shore, which involved the acceptance of the doctrine that in order to avert a serious humanitarian catastrophe it is permissible to intervene in a military sense in another country, even if that intervention is not backed by a specific resolution of the United Nations. Moreover, the Prime Minister, in his Chicago speech last year, said that the democracies have an obligation to intervene wherever bad things are happening in the world.
This process of the erosion of national sovereignty can have benefits in a world which is dominated by democracies, as it is at present. But should we not ask ourselves whether that would be different if the world were dominated, as probably it will one day be, by dictatorships. I believe that there must be limits to the speed at which the process of the erosion of national sovereignty can proceed and I believe that that is relevant to the actions of the International Criminal Court.
It is important that the court should have political antennae. I am not talking about politics entering into its judgments, although it will often be difficult for the court to escape entirely from political considerations. In particular, I have in mind the preliminary decision to bring a prosecution by the prosecutor and the 985 tribunal which assesses that question. The mistaken timing of a prosecution may cause considerable damage.
To revert to Kosovo, during the negotiations for an end to the fighting the international war crimes prosecutor announced that Mr Milosevic would be treated as a war criminal. That announcement, the timing of which was, I believe, ill-judged, did not prevent a satisfactory conclusion to the fighting, but it might have done so. I believe that that provides a lesson as to the care to be exercised by a prosecutor, not least in the timing of any prosecution. That decision could stop negotiations which might otherwise put an end to fighting in the modern world, with all its horror.
There is another recent example of a doubtful announcement by a prosecutor. Carla Del Ponte, Chief UN War Crimes Prosecutor, is reported in today's edition of The Times as saying that,her tribunal could open an investigation into the use of depleted uranium ammunition by NATO, which many blame for cancer among soldiers who served in the Balkans campaign".It would be wise for Mrs Del Ponte to reflect very carefully before proceeding in that direction. That is a highly sensitive issue which, if pursued, could discredit the development, which in general we support, of international tribunals.
I believe that the court should also consider the effect of a prosecution in the country concerned. Even democracies may sometimes be reluctant to take proceedings, or to have proceedings taken, against their nationals or to surrender them to the court if in the judgment of their governments stability would be upset. I refer to the example of General Pinochet to whom frequent reference has been made in this debate. When the charges against him were originally brought in this country there was turmoil on the streets of Santiago. The situation was fairly delicate, because the history of Chile during the time of Pinochet, and before, had been fairly bloody and stability had been achieved with some difficulty between the supporters and opponents of General Pinochet. At the time that charges were brought against the general in this country there was a serious risk that stability might be upset. One was glad to observe that matters calmed down, but it is possible that if General Pinochet had stood trial in this country the turmoil would have been much greater than it was at the time he was charged.
I conclude by referring to the United States. I am glad that President Clinton has signed the treaty. What I say is put in a friendly way because I am a great admirer and supporter of the role of the United States in general in the world. I believe it is extremely important that the United States should ratify the treaty and become a member of the court. Voices in the United States have called for a guarantee that no US citizen will be convicted or imprisoned by the court. That is comparable with saying that the US will not engage in any military action if there is any risk of a casualty being suffered. Those two propositions are 986 parallel one to the other and are inconsistent with the position of a great nation, let alone the most important democracy in the world.
One noble Lord referred to the newly-appointed Secretary of State for Defense, Mr Rumsfeld. He has said that American leadership in the world may suffer if the US is a member of the court. I believe that that is entirely the wrong way round: US leadership will suffer if America is not a member of the court, because its influence, which is generally for the good, will be weakened. I recall what happened at the time that the United States decided not to join the League of Nations. That emasculated the League which was never of much use. Although the issues here are not as important as America's failure to join the League, which we know was one of the contributory factors of the Second World War, I believe that that example should be borne in mind by the United States.
§ 7.25 p.m.
§ Lord Brightman
My Lords, as I speak as near as proves practical to the gap perhaps I may be permitted to turn away for a moment from the substance of the Bill to pay a compliment to the draftsman of the Bill and explain why. I invite noble Lords to turn to Clause 80 of the Bill on page 38. That clause is an index of expressions defined in the Bill. The first column sets out the expressions which are defined in the previous clauses, and the second column points to the clause in which the particular definition is to be found. That admirable drafting technique serves two purposes. First, the index tells the reader immediately whether a particular word or expression has its popular meaning or a special meaning. Secondly, if the word or expression has a special meaning it tells the reader immediately in which provision that meaning is to be found. For example, the first column of Clause 80 tells the reader that "war crime" is a specially defined expression. The second column of that clause tells the reader to turn to Clause 50 for that definition or, more accurately, exactly where to find it.
This admirable drafting technique is not new but is not used as often as I believe it could and should be. It was used in one Act in Session 1993–94: in four Acts in the bonanza Session 1997–98; and in one Act in the previous Session. I congratulate parliamentary counsel on using the technique in this Bill and express the hope that it may be used more frequently in future Bills. It is immensely helpful to the reader.
§ 7.29 p.m.
§ Lord Cocks of Hartcliffe
My Lords, in a few days' time we shall observe Holocaust Day, but so far not much has been said about it. Noble Lords will recall the way in which the Germans turned killing into an industrial process on a massive scale: 6 million Jews, 80,000 to 100,000 romanies, or New Age travellers as we now call them, many trade unionists, homosexuals, the mentally handicapped, who today are described as people with learning difficulties, and those suffering from mental illness and physical handicap were killed. Most of that process, particularly the persecution of the Jews, began within a month of Hitler assuming 987 power on 30th January 1933. While we talk about Africa and one or two other places, we should remember that the backdrop to this must be the Middle East and the problems faced by Israel.
The noble Lord, Lord Lester, with whom I am delighted to be in harmony on the Bill, referred to the contribution of the noble Lord, Lord Howell, as "tepid". That was more elaborately put by my noble friend Lord Goldsmith, who said that he "lost his enthusiasm". He raised several important points. I should like to say a few words about them because most of my other material has been pre-empted by the 16 previous speakers.
The noble Lord referred to the United States' worries and that we must take them seriously. Particularly with the new president taking office in the United States, it is important that we do not make rash statements which will prejudice people in the Americas who are not particularly well inclined towards this legislation.
On 2nd January the Independent—to my prejudiced mind, that is about the only independent thing about that newspaper, otherwise I regard it as a chattel of the chattering classes—there was an editorial which stated:Bill Clinton's welcome move towards international justice".It mentioned Senator Jesse Helms, the chairman of the Senate Foreign Relations Committee, who has already been mentioned. It said:Mr Helms is worried that the establishment of the court, which 139 countries have now signed up for, would make US citizens liable for prosecution. Well, yes. Why should Americans think they are different?".That is an example of the level that some political debate is reduced to these days; that is, if someone puts up an argument against you try to show them as isolated, bizarre, cranky and even call into question, in a polite kind of a way, their mental state.
I have always regarded the Americans as a quite remarkable people. They live on a very large land mass with great natural resources. They are separated from their neighbours to west and east by thousands of miles of ocean. They would have a perfectly legitimate case for an isolationist policy and could live perfectly well on their own. But we are all aware of their efforts in two world wars. Some of us actually saw them here and lived through the last war when without their help we could not have moved into western or southern Europe. We have to remember that they think about these matters. Since the Second World War they have assumed a much greater role in the world and when necessary have been prepared to send their men to various parts of the world. With their isolationist position and the possibility that they could have adopted that attitude, we have to respect that. When they express doubts we need to look at them rationally and allow them time to come to terms with what they are being asked to do. Justcastigating them will harden any resistance to going the whole way.
The noble Lord, Lord Howell, also mentioned cost. The Americans may well feel that if this legislation gets under way they will have to pick up most of the tab. It 988 is coarse, but that is the kind of argument which appeals to people. With 4.5 per cent of the world's population, already they pay 25 per cent of the United Nation's expenses. That is the absolute maximum that any one country is allowed to pay. They are coughing up there. Yet from time to time we hear them castigated in the Chamber for being a little behind with their expenses.
If this legislation gets off the ground, we have to make sure that the accounting—the money—is entirely transparent because there is nothing more destructive to an international organisation than accusations that someone is fiddling and money is going astray. Everything has to be absolutely above board. We have seen the damage done in the European Community when various issues have surfaced in the way of expenses abuses.
I am not over impressed with the consultation process that has taken place here. The document refers to it and to the responses, but I have an awful feeling that the people who have been consulted and who have responded come from a limited section of society. That is a matter which I previously mentioned in the Chamber when we were talking about constitutional changes. They are not truly a representative sample of the British people. Yet if they give the say so everyone clutches them to their bosom and says, "Well, here you are, a great groundswell of opinion", "endorsement", and so on. We should think more about how we consult.
I understand that this matter was on a website and that people could make contributions there. Not everyone has access to the network or can even use it. Instead of the old class system, we are now creating a new class system of people who have access to websites and people who have not. Noble Lords may think that this is an academic point, but in my former constituency the local council is consulting, people on secondary education. People can make their views known via its website. One can guess which parts of Bristol are benefiting from that. I have previously referred in the Chamber to the closure of a secondary school in the most deprived area of my former constituency because the people did not know how to make their voices heard.
The appointment of judges needs to be absolutely above board. There must be no question that anything other than merit is the criterion. If there is any talk about quotas or so and so's turn, the integrity of the court will be destroyed. One may say that integrity is automatically assumed in these matters.
A lady called Biljana Playsic has just surrendered for trial. There has been much speculation in the broadsheets that some kind of deal has been done. The court says that there has been no deal and there have been no talks. I simply do not believe that. Neither do a great many people who have studied the matter. If we start off with people suspecting that they are not being told the truth the whole process will be undermined. Otherwise, I welcome the Bill very much indeed.
§ 7.37 p.m.
§ Lord Kingsland
My Lords, I hope the noble and learned Lord the Attorney-General and the noble Baroness the Minister will not mind if, first of all, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on the arrival of the Bill in your Lordships' House. More than anyone else in your Lordships' House, indeed in either House, he has played the main role in making sure that the Bill is with us today. He has been persistent; on some occasions he has been intransigent; but, above all, he has been indefatigable in his pursuit of that objective. Perhaps my only sorrow is that the noble and learned Lord, Lord Shawcross, who also played such an important part in earlier years, is not here today to listen to the debate. One of the reasons why the debate has been so successful is because at the end of his contribution the noble Lord, Lord Cocks, said that he was in total harmony with the noble Lord, Lord Lester of Herne Hill. That is indeed a statement to be much admired. We also heard it with some relief. I shall not attempt to summarise what all noble Lords will agree has been an outstanding debate today. I simply wish to add one observation which is primarily about the Bill and not about the statute.
As the noble Baroness the Minister said in opening the debate, the principle that underlies the Bill is the principle of complementarity. That is to say, as long as a national government investigates and prosecutes an alleged offence, the International Criminal Court has no role.
The matter is dealt with in Article 17 of the Rome Statute. Paragraph 1 of the article states, inter alia, that,the International Criminal Court will determine that a case is inadmissible where—Thus, unless the United Kingdom is either unwilling or unable to prosecute the matter, the International Criminal Court plays no part.
- (a) the case is being investigated or prosecuted by a state which has jurisdiction over it unless the state is unwilling or unable genuinely to carry out the investigation or prosecution,
- (b) the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute".
Clause 5 sets out the procedure for making a delivery order for the International Criminal Court as a consequence of its issuing to the United Kingdom something called a request for surrender. However, as a result of Article 17 of the Rome statute, such a request will be admissible only if the United Kingdom Government are unwilling or unable to investigate and prosecute.
As my contribution to the debate, and looking ahead to the Committee stage, I want to ask the noble and learned Lord the Attorney-General some questions about Clause 5. First, in what circumstances does the noble and learned Lord anticipate that government would be unwilling or unable to investigate and prosecute? Second, if there are circumstances in which the Government are unwilling to prosecute, it surely means that they are willing that 990 the International Criminal Court should prosecute. What motive would they have for that? Would it be that they might consider the rules of procedure of the International Criminal Court to be more appropriate to a prosecution than our own rules of procedure?
That would be unlikely, from the point of view of the defendant. What about the position of the defendant, for the defendant will surely have a view about whether he or she would prefer to be prosecuted in the United Kingdom rather than in the International Criminal Court? Should that individual have the opportunity to have that decision of the United Kingdom Government tested in the United Kingdom courts? Should not the individual benefit from a procedure in our own courts whereby he can question the fairness of the Government's decision to refuse to pursue him in our own courts—a refusal which will, inevitably, lead to a request for surrender by the International Criminal Court?
Perhaps I may help the Minister by saying that I do not think the precedents in relation to the ad hoc court in Yugoslavia and Rwanda are helpful because the basis for the establishment of those two courts is not the principle of complementarity. As the noble and learned Lord the Attorney-General is aware, those two courts were established by a resolution of the Security Council under chapter 7 which makes both those courts subsidiary organs of the Security Council. It is clear that, in those circumstances, there is a judicial hierarchy where the international courts are superior to the national courts. But the situation here is in a sense the opposite. It is clear from the Rome statute that the principal court is the national court and that the International Criminal Court has jurisdiction only by default.
That brings me to my next question, which concerns Clause 5(4). It states:In the case of a person alleged to have committed an ICC crime, the competent court may adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC".As I understand it, the clause is intended to stay the proceedings in the United Kingdom while the question of admissibility or jurisdiction is considered in the International Criminal Court. It is clear from Articles 55 and 67 that in a full trial of a matter before the International Criminal Court an individual would be entitled to legal aid. I can understand the uncertainty of the noble Lord, Lord Clinton-Davis, about that because the matter is not dealt with in the explanatory statement which emerged at the same time as the Bill. But would legal aid be available to an individual who wished to challenge the issue of admissibility as a preliminary matter in the International Criminal Court?
Furthermore, let us suppose that the United Kingdom Government disagreed with the International Criminal Court about issuing a request for surrender. In other words, let us suppose that the United Kingdom Government had initiated a bona fide investigation with an intention to prosecute and therefore did not believe that the International Criminal Court ought to take jurisdiction. Would the 991 United Kingdom Government deploy their own counsel at the admissibility hearing to pursue what they considered to be the national interest in that case?
Clause 5(6) states that if it appears to the competent court that in the process of the issuing of the warrant and of arrest a person's rights have not been respected, the court—the United Kingdom court—shall notify the Secretary of State of that fact and the Secretary of State shall transmit the notification to the International Criminal Court. What is the use of that to the individual involved? The rights here are not rights which are set out by the International Criminal Court; they are rights set out in our own law underpinned now by Article 6(1) of the European Convention on Human Rights. What is the point of protecting something if there are no adverse consequences for the state if it does not protect it? In other words, what is the point of setting out this protection in the Bill if an individual can seek no remedy in his own courts when the rights granted under the Bill are not respected?
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way and I apologise for interrupting the list of interrogatories that lie is administering to the luckless Attorney-General. I want to encourage the noble Lord to go further. Does he agree that Article 59(2) of the ICC Statute plainly contemplates that a person arrested is to be brought before the competent judicial authority in the custodial state, which shall determine in accordance with the law of that state, among other things, whether the person's rights have been respected? Is it not therefore rather strange that, instead of the Bill providing for the determination by the UK court by judicial review as to whether rights have been respected under UK law, all that can be done is for the Secretary of State to pass on something which the UK court has itself mentioned? Does that accord with Article 59.2?
§ Lord Kingsland
My Lords, I am much obliged to the noble Lord for drawing the attention of noble Lords to that part of the Rome Statute. The noble Lord, Lord Lester, made the same point in a different context when he drew attention to the right of review covered later. I respectfully submit that he was quite right to say that it is a pity that the Bill allows only for a habeus corpus remedy when a judicial review remedy would be much more appropriate.
Underpinning these questions—they were more harshly described by the noble Lord, Lord Lester, as interrogatories, although I am sure that the noble and learned Lord the Attorney-General does not perceive them as such—is my fear that the model taken for Clause 5 is not the model that should naturally flow from the principle of complementarity, so ably outlined by the noble Baroness the Minister, but a model which seeks to reflect a practice which has grown up over the past few years as a result of the jurisprudence of the ad hoc courts for Yugoslavia and Rwanda.
992 This has been a splendid debate. All noble Lords will have been greatly moved by the intervention of my noble friend Lord Campbell of Alloway. Although some criticisms have been made of the outstanding speech of my noble friend Lord Howell, we remain to hear—I am sure that the response will be delivered in Committee—the reasons why the noble Baroness is so confident that the procedures set out in the Rome Statute accord with those set out for our citizens in the European Convention on Human Rights.
§ 7.52 p.m.
§ The Attorney-General (Lord Williams of Mostyn)
My Lords, I believe that we all recognise that this evening we are starting to make history. My noble and learned friend Lord Archer of Sandwell deserves our full-hearted gratitude and I particularly wanted to acknowledge the extremely generous tribute made by the noble Lord, Lord Kingsland, to my noble and learned friend. This is not the first time that my noble and learned friend has undertaken such noble work. Let us never forget that it was he who moved the amendment to the Human Rights Bill which did away for ever with that grotesque blot on our jurisprudence, capital punishment. I shall not be partisan, but it will be remembered by all noble Lords that no vote was registered against his amendment. Voices were raised, but no one voted.
This is an extraordinary time. I think that it is right to say that full credit ought to be given to my right honourable friend the Foreign Secretary. He has been quite indefatigable in pursuing this purpose. It is not a purpose that is likely to secure enormous electoral support, in that many people would not put their mind to this topic while casting their vote.
Perhaps I may mention two points by way of background. Last week I spend two days in Holland, one at Camp Zeist to attend the closing stages of the Lockerbie trial. The following day I attended the International Criminal Tribunal for Yugoslavia on the very day that Madam Playsic attended to be indicted. If we had held these exchanges 10 years ago and I had recited that short history, noble Lords would have thought that I had—temporarily, I would hope—taken leave of my senses.
In 1999, I was in Cambodia, talking to a Minister of justice who endured strains and pressures that none of us can possibly imagine. I discussed with him, reasonably and carefully, the prospect of establishing a tribunal to bring to account those who had committed dreadful and unimaginable crimes under the former regime. There was some difficulty. However, now the United Nations and the Cambodian Government have agreed on the creation of a special court involving both Cambodian and international judges and lawyers. On 2nd January, the parliament of Cambodia unanimously approved the law to establish a special court. So when we are asked to pass this Bill, perhaps we should undertake the task in the context of other, nobler acts to which our colleagues in other jurisdictions have put their hands.
993 Perhaps I may recite to noble Lords only some of the countries—I have picked them almost at random, though perhaps not wholly—who have signed the statute. As my noble friend the Minister pointed out, 139 have already signed. These include Algeria, Angola, Argentina, Bolivia, Cambodia, Chile, Colombia, the Democratic Republic of Congo, Eritrea, the Federal Republic of Yugoslavia, Haiti, Nigeria, the Russian Federation, Sudan, the Syrian Arab Republic, Zimbabwe and—I know that this recent signatory will please my noble friend Lady Kennedy—Iran. Not all of those names, which I have chosen at random, would have been immediate candidates for your Lordships' thoughts as regards who might be among the early signatories to this important statute. As my noble friend has mentioned, 27 countries have already ratified the statute. It is our purpose and determined desire to be among the first 60 countries.
This will be a transformation in the jurisprudence of mankind. I entirely agree with what was said by my noble friends Lord Shore, Lord Goldsmith and Lord Cocks, that this is not simply to bring about punishment, because one of the true and moral purposes of law is to prevent criminality. This is not, to use the jargon, a "signal". This is a weapon. If those who wish to commit gross crimes require any warning, it is to be found here.
A number of questions were put. They were not, I think, interrogatories, which would require me to respond on oath. If I get anything wrong, I hope that most noble Lords will forgive me. I respected and appreciated the contribution made by the noble Lord, Lord Howell of Guildford. The caution and prudence he demonstrated and the questions he put were legitimate. Not all states will sign with equal good faith. Furthermore, not all will ratify with anything other than reluctance. To many of us, that would imply that perhaps the statute and our Bill are quite useful steps forward.
The noble Lord also asked whether this would affect only the weak and the defeated. I think not. When Madam Plavsic surrendered herself to an international court, that suggests that this does not cover only the weak and the defeated. Will it be simply cosmetic? I believe not. One does not wish to be overly dramatic, but if there were still chancellories around the world, I think that some groaning might possibly be heard. Will it catch only the big fish? The growing and developing experience of the International Criminal Tribunal for Yugoslavia is demonstrating the contrary. I do not wish to prejudice any future arrests or trials, but one can see—I put this quite neutrally—that up the scale of responsibility, more and more people are in fear, probably legitimate fear, that they may well have to answer to a lawful tribunal for their alleged crimes.
However, the noble Lord is right to say that the United States has reservations. We shall have to wait and see. Neither my noble friend the Minister nor I know more than that President Clinton signed the treaty on 31st December last year. We understand 994 perfectly well that some of his congressional colleagues—as they will continue to be when he has passed from his presidential stage—have serious doubts. I echo what a number of my noble friends have said: this is not a perfect Bill. It is not a perfect statute, but it is infinitely better than doing nothing at all.
The noble Lord, Lord Lester of Herne Hill, asked a number of questions. One of them, as the noble Lord, Lord Kingsland said, related to the question of appeal by way of judicial review in so far as it was in harmony or disharmonious with the question of judicial review. I shall be writing to the noble Lord on that question. I shall copy my reply to other noble Lords who have shown an interest and I shall ensure that a copy is placed in the Library.
There is no doubt that it is an important question. It raises the general issue of the relationship between judicial review and habeas corpus, a matter on which the noble Lord has touched before in correspondence. He will know that the general issue is being considered by the Lord Chancellor's Department at the moment. There has been the Bowman review of the Crown Office List and it may be—I genuinely do not know—that some advantage may come from those questions. I simply do not know. When I have further information, even if it is disappointing—I do not know whether it will be—I shall communicate it to the noble Lord.
The noble Lord, Lord Lester, also raised the question of scrutiny, in this context and more generally. We are open—I say this quite deliberately—to considering ways of contributing to the efficient parliamentary scrutiny of treaties. I have to say—not simply because I am standing in this House—that this House does extremely well in carrying out that work. We made that point quite clearly in evidence to the Royal Commission inquiry into the reform of this House. Essentially, of course, it will be a question for each relevant House but, as far as we are concerned, we think that there is substantial virtue in the proposal.
The noble Lord, Lord Lester, raised questions about immunities. The Rome Statute provides that immunity shall not be a bar to prosecution before the ICC. States which have signed and ratified will have agreed to that provision and therefore diplomatic and state immunity cannot shield representatives—but I take his point—of states parties. The same is not true of non-states parties, a matter raised by my noble friend Lord Goldsmith. We are required by virtue of international law obligations to give diplomatic and state immunities unless the state concerned has agreed to waive them. We hope that as many countries as possible will become states parties. If they do not, we are in the position that has already been accurately described.
Clause 23 was the subject of particular inquiry by my noble friend Lord Goldsmith and my noble and learned friend Lord Archer. That clause provides that the Secretary of State may direct that arrest and surrender proceedings be not taken against someone enjoying state or diplomatic immunity. However, I remind the House that he can do that only after 995 consulting the ICC and the state concerned. I should say as plainly as I can that the Government's clear policy is generally that all those indicted by the ICC should be brought to trial. The provision in Clause 23 is simply a prudent measure against a possibly uncertain future.
I turn now to the remarks of the noble and learned Lord, Lord Lloyd of Berwick, for which my noble friend the Minister and I were extremely grateful. It is very valuable to have the view of someone who sat judicially in Pinochet's case. I believe that, post-Pinochet, the maps we formerly read have needed to be rolled up. This is, in part, one of the consequences of a changed world, which we are capable of improving.
In the context of the noble and learned Lord's remarks in regard to Senator Pinochet and the question put by my noble friend Lord Shore—I am dividing his questions into two—whether or not Chile had been a state party at the time that Senator Pinochet committed his alleged offences, he would have been triable domestically in Chile unless Chile was unwilling or unable to try him. If, as the noble Lord, Lord Kingsland, said, on the basis of complementarity Chile had been unwilling or unable to try him, then the International Criminal Court would have had jurisdiction. I have put that answer carefully, of course, reminding the House—as did my noble friend the Minister earlier—that this is not retrospective. I have therefore put the conditions around that answer in that way.
I was grateful for the support of the noble Baroness, Lady Kennedy. I am happy to be able to say that, as a fairly late signatory, Iran has now included itself.
I particularly welcome the strong support for the concept, as the noble Lord, Lord Moynihan described it. I simply do not know what the consequences of the protection Bill in the United States will be. I understand that there are strong, powerfully held views in the United States about the proposition that United States nationals should not be tried elsewhere. That is a political judgment for our friends in the United States to make. I echo, if I may, what my noble friend Lord Cocks of Hartcliffe said: we should not be too eager to castigate the United States. In many ways it is an open, generous-hearted, fine country. Not that we agree with it on everything, but at least we can disagree, I hope, in an agreeable and decent way.
The noble Lord, Lord Shore, then invited my particular response to the question of Article 8, an issue touched on by the noble Lord, Lord Blaker. I remember of course that the noble Lord, Lord Campbell of Alloway, also raised these questions. On pages 62 and 63 of the Bill, Article 8 contains descriptions of war crimes. They are purely descriptive of what international law presently regards as offences. We are bound by the Geneva conventions and the protocols we have signed. What one finds here have already been described and assented to by this country as being war crimes.
They are not as bald nor as brutal as they seem. The noble Lord, Lord Goldsmith, was quite right to point, for instance, to Article 8(2)(b)(iv). One has the 996 proportionality or the excessive argument put there. One has the necessity to prove intent. If one goes to the protocols—which I shall not because I do not have time to do so—there are many installations, devices, buildings and objects which are capable of military use and also capable of civilian benefit, such as electricity generators. One has to approach these matters proportionately, rationally and reasonably.
§ Lord Shore of Stepney
My Lords, I am grateful to my noble and learned friend for turning his mind to this rather difficult problem. Certainly one wishes to ban war crimes but, within the memories of all of us, specifically listed are actions which were undertaken by the whole NATO alliance in defiance of what is now written into Article 8(2). It is a very serious contradiction. The fact that the Americans, for example, may be rather reluctant to ratify the convention as it is at present may be well understood. But also, surely, we agreed. We took part. We bombed civilians, we bombed the bridges and we bombed electricity plants. We did all that, not because we are aggressors and ferocious people but because it was a necessary part of liberating, as we saw it, the people of Kosovo from the oppression of Serbia. There must be some way in which this different motivation and approach can be recognised in the treaty or in the Bill. We must find a solution.
§ Lord Williams of Mostyn
My Lords, I profoundly disagree with what my noble friend has said. We did not act unlawfully in Kosovo. We acted on perfectly legitimate international grounds. We did not deliberately bomb civilians. It is not illegitimate in international law to bomb bridges if they are used for military purpose—and plainly they can be. It is not illegitimate to bomb railways if they are used for military purpose.
I return to the cautionary note sounded by my noble friend Lord Goldsmith about Article 8(2)(b)(iv) on page 63 of the Bill, referring to,Intentionally"—I stress that word—launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".That is a well-known and well-understood concept in international law.
I repudiate as firmly as I can that the British Government or our Armed Forces were acting unlawfully in Kosovo in terms of international law. I do not believe it to be correct. The Government have taken the most careful advice about the legality of such actions and the Armed Forces have similarly taken their own advice.
§ Lord Campbell of Alloway
My Lords, I merely seek information in view of the previous exchange. I am not returning to the matter of Kosovo but deal merely with a point of construction as to the words used. Is the noble and learned Lord saying that they originate from the 1957 Geneva Convention and that, therefore, they 997 are part of international law and we must accept them today in our modern concept of war? Is that the position?
§ Lord Williams of Mostyn
My Lords, that is what I am saying, except that I include for completeness the 1949 convention, which is set out at page 62 of the Bill under the first definition of "war crimes". The noble Lord is right. The world has changed. We have international obligations. It is useful, if I may say so as respectfully and gently as I may, occasionally to remind ourselves of what they are. In the context of the question put by the noble Lord, Lord Blaker, which fits in here, in his example the protection is that given to those who are protected by the Geneva Convention: in other words, protection for those who are specified—as, for instance, civilians—by virtue of their having particular protection under the Geneva Convention.
§ Lord Shore of Stepney
My Lords, I am grateful to my noble and learned friend for giving way. I shall be brief. To make it absolutely clear, I do not for a moment consider that our actions justify the charge against us of committing war crimes. But how do we defend ourselves from accusations by those who are not friendly to us that we have committed war crimes, given the range of actions that we are obliged to take for military purposes?
§ Lord Williams of Mostyn
My Lords, we do so without the slightest difficulty; indeed I should be happy to do so if called upon, as I may be. The fact is that we studied carefully the ambit of our international legal obligations. The fact is that we have the right in international law to prevent overwhelming humanitarian catastrophe. I assert that on behalf of the Government. I would put it forward to any court that 700,000 or 800,000 people being driven from their homes, in the greatest act of mass forced deportation since the end of the last war, is an overwhelming humanitarian catastrophe requiring action. It is true that some civilians were killed. Did we set about the deliberate murder of civilians? No, we did not. Did we sometimes make errors? Yes, we did—but those errors were made in a nobler cause and I believe that history will applaud us.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble and learned Lord for giving way. Am I right in thinking that Justice Richard Goldstone's independent commission appointed by the United Nations to look into the matter concluded that there was a technical problem about the absence of authorisation by the Security Council under the charter, but that so far as the merits were concerned what had happened in Kosovo was entirely justifiable and that there might be a need to amend the UN charter in that respect; but that so far as any other matter was concerned, what had been done was in accordance with international law? That is my recollection; I wonder whether I am right.
§ Lord Williams of Mostyn
My Lords, I do recollect fully the text of what Judge Goldstone said. However, I am content in my view that we were lawfully justified in what we did—bearing in mind that if one carries out such activity mistakes will sometimes happen. No one regrets those mistakes more than I. But, qualitatively and legally, it is wholly different to make a genuine error—bombing, firing and shelling from a distance is utterly different from the wilful, monstrous ethnic cleansing that was carried out on defenceless people. To deviate for a moment from the purpose of the Bill, we had no selfish interest there: we had no investments, oil wells or installations to protect. We behaved properly, decently and lawfully.
§ Lord Howell of Guildford
My Lords, I admire the robust way in which the noble and learned Lord defends the right and lawful actions of this nation in our involvement in Kosovo. I agree with him 100 per cent. But is that the point? Is not the question whether other state parties who may take a different view hold us in the same admiration for what we did? Might they not interpret what we did in the name of liberty and right as aggressive and damaging to their interests and their national viewpoint?
§ Lord Williams of Mostyn
My Lords, that may well be so—and where parties disagree, even for ignoble motives, the courts then decide. I should be happy to argue the case in any domestic court; Britain will be a state party and we should be willing and able to examine such allegations. I should also have no difficulty in arguing the point in an international court. It is not simply a matter of presentation but of whether what was done was right. I entirely agree with the noble Lord. Did we do the right thing? Did we behave lawfully? I believe that those two short questions offer their own internal reply.
The noble Lord, Lord Clinton-Davies, asked a number of specific questions about legal representation. He is right to make those inquiries. The statute makes provision for legal aid to be provided to suspects being prosecuted if they do not have sufficient means to pay for legal assistance. That is one of the rights recognised specifically in Articles 55 and 67 of the statute. As it is in the statute, and as the Bill gives effect to the statute, no specific reference to legal aid is necessary.
The noble Lord asked detailed questions about ratification. Sixty signatures will be needed before the court can be established. The NGO coalition for the International Criminal Court, to which I readily pay tribute, has set July 2002 as its goal. Eight of the European Union countries have ratified; the other six are in the process of doing so. In terms of signatures, four of the permanent five members of the Security Council have signed; all members of NATO apart from Turkey have signed and, as I said, all of the European Union nations.
The noble Lord, Lord Clinton-Davies, asked about the definition of "aggression". That has not been arrived at. Rather than spend further years attempting to produce an agreed definition, we decided to proceed 999 at this stage. If there is agreement about the definition of "aggression" as a crime in international law, it can become a crime only by virtue of this statute when the statute itself is amended, which cannot happen for seven years.
The noble Lord also asked about the report. I can tell him that it was placed in the Library of the House on Friday 12th January. I am sorry if a copy of it was not readily available for him. As to the question of expert witnesses, we have not, in practice, found any difficulty in getting many expert witnesses to attend the Yugoslav tribunal or the Rwandan tribunal. Therefore, we have not considered that the power would be required.
I was grateful for the support expressed by the noble Viscount. Lord Waverley. I believe that I have dealt with the specific questions posed by the noble Lord, Lord Campbell of Alloway because, in a sense, they intermingled with topics to which I have already responded.
My noble and learned friend Lord Archer asked about universal jurisdiction, as did other speakers. My noble friend Lord Goldsmith was quite right to say that we have universal jurisdiction elsewhere in our domestic jurisprudence. However, we have had that in the past when it was part and parcel of an international agreement. So noble Lords are quite right: we have jurisdiction over torture because it is part of the convention against torture. Similarly, we have universal jurisdiction over grave breaches of the Geneva Conventions because that is an obligation of such conventions.
As I believe all your Lordships know, there were very lengthy negotiations leading up to the Rome Statute but they did not deal with universal jurisdiction. The statute does not require universal jurisdiction; that is why it is absent from the Bill. I give way.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for giving way. This is such an important matter that I feel it worth taxing the patience of the House for a few moments in order to follow up the question. First, was the noble Lord, Lord Goldsmith, right to say that other signatory states in their implementing legislation—notably, New Zealand and Canada—are taking universal jurisdiction? Secondly, if we do not do the same, will there not be a problem of a hole in the middle; that is to say, that there will be some rare cases where neither the United Kingdom courts nor the ICC will have jurisdiction over offences that ought to be dealt with by one court or the other?
§ Lord Williams of Mostyn
My Lords, I do not know the answer to the first question, but I shall undertake some research in that respect. My noble friend simply mentioned that in his speech and I do not have such information with me. It is not clear to me whether those domestic statutes have actually been passed. As regards the noble Lord's second question, I do not believe that there will be a hole in the jurisdiction. Obviously, bearing in mind the questions put by the 1000 noble Lord, Lord Lester, and those raised by my noble friend Lord Goldsmith, I shall want to look into the matter.
On behalf of my noble friend the Minister and myself I ought to have pointed out that any amendment that is put forward that is consonant with what we wish to bring about—in other words, that is consistent with the spirit of the Bill—we shall consider most carefully. Moreover, as both of us had agreed on this, I should have said earlier that, if there is any meeting that is usefully to be called, we should be more than happy to attend it in an effort at least to talk through these issues. I recognise, with a single exception, that all noble Lords have given the spirit of the Bill the most generous welcome. The exception is the noble Lord, Lord Monson—
§ Lord Archer of Sandwell
My Lords, before my noble and learned friend proceeds, I must raise a further point. I apologise for being tiresome, but it is most unusual to catch him out in a non sequitur. I believe that he said a few moments ago that the statute does not require universal jurisdiction and that is why it is not in the Bill. However, does my noble and learned friend agree that that is not conclusive and that the Government will not regard that as a conclusive argument?
§ Lord Williams of Mostyn
My Lords, it was not a non sequitur because my noble and learned friend forgot the first step; namely, as I correctly described it, the fact that the negotiations did not produce a consensus on universal jurisdiction. It is absent from the statute and, therefore, it is not to be found in the Bill, which is putting the statute into effect. That is not a non sequitur. It is a perfect sequitur, if that is the opposite.
I return to the noble Lord, Lord Monson. He gave us a useful reminder of man's hypocrisy and endless capacity for self-deception. I agree with him. However, the fact that some powerful members of state organisations have committed what I believe I can fairly call "state crime" should not disable us from doing the best that we can, with limited opportunities, to bring about improvement in an area where lawlessness rules. I cannot dispute the noble Lord's historical references, but I would not draw gloom from them: I would draw from them the prospect of improvement.
I have dealt with the points raised by my noble friend Lord Goldsmith and also the specific question raised by the noble Lord, Lord Blaker. I was very happy to have the commendation—vicariously, I have to say—for the parliamentary draftsmen and the Bill team from the noble and learned Lord, Lord Brightman. He had the decency to smile at me because he has constantly urged me to do this in the past. Although I should not really be saying this, the truth is that we knew many months ago that the Second Reading of this Bill would be dealt with today—which happens to be the 90th birthday of the noble and learned Lord, Lord Simon of Glaisdale. It was intended as a gift-wrapped birthday present for him because I know that he shares the same views as the noble and learned Lord, Lord Brightman.
1001 I believe that I have covered the remarks made by my noble friend Lord Cocks, with which I fundamentally agree. It is very important that the quality of the judiciary be high. Judging from my experience of Monsieur Jorda, the president in the Hague of the Yugoslav tribunal and in particular, if I may say so, of the British judge, His Honour Richard May, my opinion of them in that respect could not be higher.
I turn now to the noble Lord, Lord Kingsland, and his questions. He invited me to contemplate circumstances in which I believe he said that this Government would be unwilling or unable to investigate or prosecute those who pass through these shores. That is entirely my point: this is not a Bill for this Government. It is a Bill for the next 25 to 30 years. It is possible, even if unlikely, that a different government might take a different view on these matters. However, one has to allow even for catastrophe in Bills put before the House of Lords. There could well be occasions where, domestically, a government might legitimately not want to prosecute on the basis that it was more appropriate, say, for their non-nationals to be prosecuted in the International Criminal Court. It might be logistically better; indeed, it might be better for all sorts of reasons if the opportunity—in other words, the option—is there contained.
I have done my best to answer the questions that have been put with great courtesy and tact. My noble friend the Minister and I are both extremely grateful for that. The only regret that we have is that there was such a sparse attendance in the Chamber tonight for a measure that really matters for the future of this country and for the future of international legality. But, then, perhaps it is not enormously popular.
On Question, Bill read a second time, and committed to a Committee of the Whole House.