International Criminal Court Bill [Lords]

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The Solicitor-General: Before I lose that point about article 98, paragraph 1 relates to international law, whereas paragraph 2 relates to international agreements. An obligation may apply under international law, but international law can be customary, for example. Paragraph 2 refers specifically to obligations under international agreements—in other words, treaties—and I suspect that that is the distinction.

Mr. Blunt: I concede the point about international agreements. However, is there a difference between a requested and a sending state? What do those terms mean? I understand that the requested state is on the receiving end of the request from the ICC, but how is that different from the sending state?

The Solicitor-General: We may have to return to that. A moment ago, we discussed transit. The sending state may not be the requested state because of a transit issue. Perhaps I shall receive further clarification in due course. It seems that the sending state is the one that sends the diplomat, whereas the requested state is the one that receives the request. I hope that that helps the hon. Gentleman.

Mr. Blunt: Surely the two are the same. Why would the ICC issue a request to a state that could not send the person? That is why I do not understand article 98.2.

The Solicitor-General: I think that we had better return to that.

It is unsurprising that we return to the argument advanced by the right hon. Member for Caithness, Sutherland and Easter Ross, as it was dealt with in the other place and is important. He and the hon. Member for Reigate referred to our obligations under the Rome statute, article 27 of which states that immunity shall not constitute a bar to prosecution before the ICC. States that sign and ratify the statute agree to that provision. The clause provides that diplomatic and state immunity cannot shield representatives of state parties from arrest and surrender. As the right hon. Gentleman said, the position of state party is clearly set out in the statute.

The same is not true in relation to non-state parties, which will not have agreed to article 27. Under international law, we are obliged to accord diplomatic and state immunities unless the state involved has agreed to waive them. We have said all along that we hope that as many countries as possible will become state parties so that the category of non-state parties will be very small—in an ideal world, it would be non-existent. If they became state parties, they would agree to article 27.

Clause 23(4) provides the Secretary of State with the power to direct that arrest and surrender proceedings shall not take place against someone who enjoys state or diplomatic immunity, which would not prevent the proceedings from going ahead were it not for the clause. The clause also states that the Secretary of State can do that only after having consulted the ICC and the state involved. The clause also clearly sets out that the Secretary of State can do that only after having consulted the ICC and the state concerned. We explicitly accept that the Government must consult the ICC about whether issues of state or diplomatic immunity are involved in an ICC request. The clause is drafted in a way that provides for consultations with the ICC and the sending state of the person concerned, and their opinions would be carefully considered before a decision was taken.

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We do not envisage that such circumstances will arise often, if at all. We are providing for a situation that is rare, and the details are difficult to predict. That is why subsection (4) has been included. As the hon. Member for Reigate mentioned, there was no such provision in the consultation Bill. We amended it as a result of comments made by NGOs and by those in another place.

Amendment No. 41 would tie the hands of a future Government with regard to rare and unusual cases that would be difficult to foresee and the details of which would be hard to predict. However, the provision makes it clear that the views of the ICC and the state concerned would be significant factors in any decision that might be taken, and it should therefore be included as a prudent measure against an uncertain future. The right hon. Member for Caithness, Sutherland and Easter Ross might not agree with that, but our policy is clear: war criminals must be brought to justice.

The hon. Member for Reigate correctly pointed out that subsection (4) covers state parties and non-state parties. As I have said, we have included the provision because we live in an uncertain world, and I therefore resist the amendments.

Mr. Blunt: Having listened carefully to the Solicitor-General's comments, I will not press my amendment. I wish to study what he has said, and to take further advice about the consequences of the Government's position, particularly with regard to the issue of immunity and the question of whether people who ought to be brought to justice under the statute will be able to escape prosecution. I want to discuss those matters with some of the learned friends who are associated with the NGOs that are following the proceedings before I adopt a clear position.

I am still looking forward to a final explanation of article 98.2 and its differentiation between a requested state and a sending state—although I fail to see why the ICC should send a request to a state in which the person concerned is not residing.

The Solicitor-General: I apologise for omitting to explain that. The hypothetical country that is always used in discussions about international law is Ruritania. If there is an ambassador for Ruritania, the sending state is Ruritania. The ICC may request the United Kingdom to surrender that person, and in that case the UK would be the requested state. That would be the distinction—if the ambassador is from Ruritania, that is the sending state. The requested state is the UK. I hope that that is a sufficient explanation.

Mr. Blunt indicated assent.

Mr. Maclennan: The Solicitor-General is right to say that there is simply a division of opinion on this issue, which is probably not easy to resolve. I am no clearer about the circumstances that the Government are fearful of, and, in all candour, the Solicitor-General admitted that he could not foresee any in which it would be necessary to rely on the provisions in subsection (4). That proves to me that it is—to use the lawyer's phrase—ex abundanti cautela that the clause is being put forward. I remain unconvinced by the arguments deployed by the Solicitor-General. This is a straight issue of principle about who should decide whether or not the immunities persist or obtain. It seems to me that the statute provides for it to be in the determination of the court and not the Government. Should there be a conflict between the two, the court would decide. However, in the light of uncertainties, it would be inappropriate to press the matter. I shall certainly take further counsel on the point and perhaps return to it a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mrs. Gillan: I want to take this opportunity to press the Solicitor-General further on the circumstances that surround the clause regarding state or diplomatic immunity. In his response to the amendments, he said that the Government's policy was clear, and that war criminals must be brought to justice. That is a commendable policy and one with which we would all agree. However, we require further and better particulars. It appears that under our commitment and ratification process—the introduction of this legislation will mean that all UK citizens, whether soldiers or politicians, will be subject to surrender to the ICC—we as a country can play host to visiting diplomats, heads of state and others who we will not be able to touch with a bargepole, as they say in some quarters. I would like the Solicitor-General further to identify the circumstances in which a visiting vile man could come on a shopping trip to Harrods and remain at liberty and at large. All of us want to satisfy ourselves that that cannot happen in the UK. It would be a crying shame to have gone through all the processes of negotiating the statute of Rome, introducing the legislation and discussing it at great length, to find that there was a lacuna whereby a perpetrator of a crime, who had diplomatic and state immunity, could come here for a shopping trip. That would upset us all greatly.

Ms Oona King (Bethnal Green and Bow): Does the hon. Lady share my joy and pride at finding on closer inspection of the Bill that no such loophole would exist as long as the said war criminal was being investigated by the ICC, and the ICC made a request to the Government for his extradition? The said criminal would be brought to justice, notwithstanding the shopping trip to Harrods.

Mrs. Gillan: I thank the hon. Lady. Sadly, she is merely a Back Bencher and not in government. I seek such reassurances from those on the Government Front Bench.

I want to explore how far we can push the argument. With regard to the perpetrators of a war crime who would not be subject to immunity on United Kingdom territory along the lines that the hon. Lady and I have been discussing, in some circumstances it may be desirable for such individuals to be subject to immunity pro tem. Over the past few years, there have been many negotiating processes, for example, at Rambouillet and Dayton. In an attempt to reassure myself and the Committee that peace processes can move forward, it is apposite to raise such issues to ascertain whether there would be room under the Bill and, in what circumstances, to enable a negotiating process to take place on a third party's territory. Instead of Rambouillet, could a peace process between two warring factions be held at Chesham and Amersham? We are considering the tension between a conflict resolution and justice. We must ensure that we have the correct vehicle for ensuring justice, but we do not want to inhibit a potential peacemaking or negotiating process that could result in the termination of a conflict and the saving of lives.

I hope that the Minister will deal with that issue because we must ensure that we are not cutting off a route to the many countries that will roll into the process. We are moving towards 60 and, as has been expressed, we are hoping eventually that the United States will decide that its concerns have been satisfied as, indeed, we hope that our worries will be under the Bill. That will be of small comfort, however, if we develop a court and a process that will inhibit the saving of lives and the cessation of violence and hostilities between parties.

The problem is of concern to me, and it may be to those to whom we offer asylum. We rightly continue to offer asylum to victims of conflict and persecution throughout the world, but people may wish to see the perpetrator of a crime brought to justice who might be invited here to negotiate a peace process. I want to ensure that the Bill does not remove any options for an exit route, which could bring about a cessation of hostility.

I refer to the matter because it was raised by the former Foreign Office Minister with responsibilities for Africa, the hon. Member for Neath , who, when asked about Dr. Savimbi, is alleged to have said:

    ``I would say to him: `If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that.'''

He is alleged to have said that to the Electronic Telegraph. I do not believe that that statement has been revoked, although the Minister may tell me differently. Certainly, that was the reported statement of the former Foreign Office Minister, who may have been trying to ensure that there was a way of concluding conflict.

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If the statute, when it is enacted, removes the possibility of an exit route, it would be wrong to let the legislation slide through without exploring the limits and the possibilities of providing an exit route to individuals who have undoubtedly been part of revolting war machines and disgusting tactics used against their own people and others. There is no doubt that it is desirable to remove such individuals from the arenas concerned, and it is therefore necessary to consider the matter as a potential way of bringing hostilities to a conclusion. However undesirable it may be morally, it may be practically expedient to conclude matters. I am not advocating that as a course of action; I am merely trying to explore what possibilities would still exist if the legislation were firmly on the statute book.

There is also the question of the potential to disrupt diplomatic processes. Will the Minister reassure me that he does not see any reason to rewrite the diplomatic rules as they apply, or to develop further the way in which we do our business? It seems that the statute may deter face-to-face diplomacy if there is a fear that an individual may fall within the jurisdiction of the statute. Will the Minister therefore say how he has viewed the potential for the reduction of face-to-face diplomacy as a result of the treaty? What discussions has he or the Department had with other countries on the way in which they will handle such a situation? Our relationship with other countries vis-a-vis the statute is also of great importance. We cannot fulfil the conditions of the statute in isolation—we are dependent not only on the operation of the court but on the way in which other countries operate their regimes and diplomatic processes, and how they participate in events on the world stage.

I hope that this was a suitable debate in which to raise such issues, and I look forward to a response from the Solicitor-General.

 
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