International Criminal Court Bill [Lords]

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The Solicitor-General: The hon. Lady makes several points, some of which we shall discuss later in relation to universal jurisdiction. She mentioned the case of the person coming on a shopping trip. We anticipate that, once the court is up and running and states have introduced into their laws provisions comparable to part V to deal with such crimes nationally, people who commit them will not be taking many shopping trips. I suspect that already, as a result of as the Pinochet case, for example, people who commit war crimes, crimes against humanity, genocide and so on are not even thinking of taking shopping trips. However, we shall return to that. As we have said, as a result of signing up, immunities in general will not operate.

The hon. Lady makes a valid point about how the operation of the Bill might affect the peace process and inhibit Dayton-type discussions, for example, but I believe that it has already been dealt with. Our view is based on article 16 of the statute, which states that when a resolution is adopted under chapter 7 of the charter—in the event of a threat to international peace and security—the Security Council may ask the ICC to suspend an investigation. If delicate peace negotiations are under way, the Security Council could pass a resolution, and Dayton-type discussions could take place. The hon. Lady makes a valid point, but it is dealt with by article 16.

More generally, a point of principle is involved. We would probably say that justice provides the best possible foundation for long-term peace.

Mr. Blunt: To make it absolutely clear in discussing a case such as Dayton and peace and reconciliation, the only provision in the statute under which investigations can be deferred is article 16. It requires all permanent members of the Security Council not to exercise their veto for that resolution to be passed. The resolution must be renewed every 12 months to sustain that position. Let us consider a case that does not relate to an international problem on which all five permanent members and a majority of the Security Council are agreed, and processes such as Dayton that relate to a national peace and reconciliation process that the international community is not willing to approve, or a regional process for which Security Council approval is not affirmative without a veto. In such circumstances, it is under article 16 only that exceptions can be found, and such peace and reconciliation processes could not proceed in the way that Dayton did.

The Solicitor-General: Simply because the problem is regional does not mean that it would not fall under chapter 7 of the charter, and the Security Council might pass a resolution. The hon. Gentleman is right that the Security Council must make a decision, which requires unanimity. However, in the case of a Dayton-type situation, which was regional in the sense that it was European, or other regional conflicts, that will not necessarily act as a block on the Security Council passing the resolution.

The hon. Gentleman is right that the resolution would operate for only 12 months and would have to be renewed, but as I gave way to him, I was about to say that we would take the view as a point of principle that justice, generally speaking, provides the best foundation for long-term peace. We believe that identifying and bringing to justice those persons who have committed the most serious crimes possible is the best foundation for reconciliation in war-torn societies. It may help the hon. Member for Reigate if I add that the national tribunal for the former Yugoslavia was set up under chapter 7 of the United Nations charter. The hon. Member for Chesham and Amersham raised a valid point, but article 60 provides the answer.

Mrs. Gillan: I thank the Solicitor-General for his response, but he did not address my point about the suggestion made by the hon. Member for Neath when a Foreign Office Minister. What are his views on that proposed solution in relation to the provisions in the Bill?

The Solicitor-General: In Hansard, on 8 March, at column 382, my noble Friend Baroness Scotland of Asthal, the Under-Secretary of State, Foreign and Commonwealth Office, refuted the statement alleged to have been made by my hon. Friend the Member for Neath, the Minister for Energy and Competitiveness in Europe. I can hand the hon. Lady that passage, from which she will see that my hon. Friend did not make the statement about immunity to which she referred.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Schedule 2

Delivery up of persons subject to criminal proceedings, &c. Question proposed, That this schedule be the Second schedule to the Bill.

Mr. Garnier: The schedule belongs with clause 24, and I shall ask the Government some brief questions. First, paragraph 2(3) on page 48 states:

    ``If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State . . . shall consult the ICC before giving directions for the execution of the order''.

In this context, what does ``consult'' mean? Does it imply that the Secretary of State may not do anything without the consent of the ICC and that he will take into account its answer in some way, or does it simply mean that the Secretary of State will inform the ICC of what he wants to do before doing it? My question applies equally to paragraphs 12(2) or 13(4), and to other examples that may exist within schedule 2 of the use of the words ``consult'' or ``consultation''.

Paragraph 2(5) states:

    ``This discontinuance under this paragraph of criminal proceedings in respect of an offence does not prevent the institution of fresh proceedings in respect of the offence.''

Will the Solicitor-General confirm that article 20 overrides that provision? That question relates also to paragraph 4(5).

Paragraph 5 deals with the effect on custodial sentences. How will the schedule affect the Rehabilitation of Offenders Act 1974? I appreciate that most of the sentences that ICC defendants will receive will be lengthy and may well be life sentences, so the Rehabilitation of Offenders Act 1974 may not bite. However, in the event that the ICC hands out a short sentence that comes within the current provisions of the Act, will the provisions of the Act apply to such a sentence?

12 noon

Paragraph 12(2) in part 3 of the schedule states:

    ``The Secretary of State shall inform the court of the request and of the outcome of the consultations.''

Is the word ``inform'' used in the straightforward sense of a person simply telling somebody what is being done— to tell the court of the request and the outcome of consultations—or is there an extra meaning that should be read into the word? Such concerns are similar to those that I had about the word ``consult''. These questions may not detain the Solicitor-General for long, but I ask him to address them before we proceed.

The Solicitor-General: In terms of paragraphs 2 and 12, there are two ends of the spectrum. At one end, there is the matter of simply informing someone of something—``consult'' may mean that; at the other end is a situation in which the person informed has a veto. Consultation falls across the spectrum. One consults rather than simply informs because one discusses the matter with a person and takes into account what a person may say. As the explanatory memorandum makes clear, the purpose of consultations would be to

    ``determine when and how the surrender will take place.''

Consultation would occur so that matters would be discussed and taken into account before a decision was made. The ICC would not have a veto. However, paragraph 12 contains the word ``inform''—there is no consultation there. That deals with the first and fourth points made by the hon. and learned Member for Harborough.

The second point that the hon. and learned Gentleman made was about paragraph 2(5). There is a distinction between discontinuance of proceedings, and a situation in which proceedings are taken to completion. Under article 20 a person who is tried cannot be tried for a second time following an acquittal. However, one may start proceedings that are discontinued, which under our domestic law is not a bar on restarting proceedings.

Mr. Garnier: Would the normal abuse applications apply? If a matter was discontinued and subsequently restarted, would the defendant be able to apply to have the proceedings stayed on the basis that they were an abuse?

The Solicitor-General: In terms of the ordinary rules, the abuse argument would prevent the prosecution from starting again. The hon. and learned Gentleman knows that there are discussions continuing with the Law Commission on whether we should change our domestic proceedings on abuse applications, so that the prosecution could apply to have a judge's decision on abuse set aside. However, at present, a stay resulting from an abuse application means that the matter cannot be started again.

I will probably have to write to the hon. and learned Gentleman about the matter relating to the Rehabilitation of Offenders Act 1974, but I might be able to tell him about it later today.

Question put and agreed to.

Schedule 2 agreed to.

Clause 25

Documents having effect as warrants, &c. Question proposed, That the clause stand part of the Bill.

Mrs. Gillan: I have a brief and simple question. The clause deals with documents that have effect as warrants. The explanatory note states that

    ``This clause provides that a copy or a faxed version of a warrant or other document shall be treated as if it were the original and shall be admissible in evidence.''

With regard to that statement, will the Solicitor-General clarify the standing of electronic transmissions and e-mail? Although we are legislating for the long-term future, it appears that we are dealing only with instruments of communication of the past.

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