Iraq (Hansard, 27 January 2003)

§ The Attorney-General (Lord Goldsmith)
My Lords, INDICT asked me to grant consent to the commencement of prosecutions against Saddam Hussein, Tariq Aziz, Ali Hassan Al-Majid and Taha Ramadan. Having considered the material and with the benefit of the advice of Treasury counsel who 911 reviewed it all, I wrote to Ann Clwyd MP at length on 24th January to explain my conclusions that in none of these cases is the admissible evidence that INDICT provided by itself sufficient to commence a prosecution now and that a full police investigation would be needed. Saddam Hussein is in any event immune from criminal jurisdiction here while serving head of state of Iraq.

§ Lord Avebury
My Lords, does the noble and learned Lord agree that many lawyers would disagree with his attribution of immunity to Saddam as head of state and that, as a matter of public and international law, crimes against humanity and war crimes, whether committed by a head of state or not, are not granted that immunity? Does he also agree that in addition to the evidence which has been submitted by Ms Ann Clwyd, statements have also been made by 1,800 people who were traced and interviewed by the Ministry of Defence in relation to Operation Sandcastle? Is he really saying that in spite of all this mass of evidence, there are not sufficient grounds on which to prosecute Iraqi leaders? Will he place a copy of the letter to Ann Clwyd in the Library of the House so that others may judge the validity of his conclusions?

§ Lord Goldsmith
My Lords, the noble Lord raises three questions. First, I do not agree that other lawyers would take the view that Saddam Hussein was not immune from prosecution. The immunity of heads of state was confirmed by the judgment of the International Court of Justice in Democratic Republic of the Congo v Belgium on only 14th February last year. I understand that INDICT's advisers agree with that view.
Secondly, the noble Lord raises a question about the adequacy of the evidence. Someone believing that they know what happened is one thing, but proving it in a criminal court is a wholly different proposition. Having taken the advice of experienced Treasury counsel and considered the matter myself, although the evidence that INDICT has presented to me is telling at face value, I am not satisfied that it goes sufficiently far to justify a prosecution now.
Thirdly, having regard to the confidentiality of prosecution matters and the fact that the evidence came from Ann Clwyd herself, I shall consider the noble Lord's question about whether I would place in the Library of the House a copy of the letter that I have sent.

§ Lord Campbell of Alloway
My Lords, the noble and learned Lord's explanation of the Government's attitude appears to be wholly satisfactory, but I cannot understand why it should now always be assumed that the evidence would warrant a prosecution. Why should Her Majesty's Government have to prosecute? Is there no one else who would wish to prosecute?

§ Lord Goldsmith
My Lords, of course I am grateful for the noble Lord's statement that he finds what I said satisfactory. However, I ought to point out that what I have said is not a government statement: it is a statement of my view as an independent Law Officer, having considered the detail of the evidence in the case.

§ Lord Hooson
My Lords, while Saddam Hussein is head of state he is immune from prosecution, but would the noble and learned Lord tell us whether, if he were displaced, he would be liable for offences that he might have committed while head of state? Surely he would be.

§ Lord Goldsmith
My Lords, I have been asked to consider the question as of now, and as of now the point that the noble Lord makes is entirely hypothetical.

§ Lord Stoddart of Swindon
My Lords, the noble Lord has raised a very interesting question as to who could be prosecuted for war crimes. What would be the position if, for example, there was an intervention in Iraq in which civilians were killed by British and American troops operating together, and that was considered a war crime? Would President Bush be immune from prosecution, but Tony Blair liable for prosecution?

§ Lord Goldsmith
My Lords, that question, raising a number of hypothetical issues as it does, seems to me to fall outside the terms of the Question tabled by the noble Lord, Lord Avebury.

§ Lord Avebury
My Lords, would the Minister kindly answer the other question that I put to him, which was whether he had examined the evidence accumulated by Operation Sandcastle, conducted by the Ministry of Defence at a cost of more than £400,000, in which 1,800 witnesses were traced? I believe that statements were taken from more than 1,000 of them. Does he not take all that evidence into consideration, in addition to that submitted by INDICT, in determining whether prosecutions should be instituted?

§ Lord Goldsmith
My Lords, I most certainly have. The Sandcastle material to which the noble Lord refers does not relate solely to the issue that I was asked to consider, which was that of hostage taking. It covers many other areas as well. I can confirm that that material was looked at in detail.
I give the assurance that I have taken the matter very seriously. I have given it my full and personal attention. In addition, members of my staff have spent days reviewing all the material, including the Sandcastle material. Treasury counsel experienced in such matters has also considered it. I assure the noble Lord that it has all been taken into account.