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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:

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

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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

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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

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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

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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. Just castigating 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

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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 Plavsic 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.

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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--

    (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".

Thus, unless the United Kingdom is either unwilling or unable to prosecute the matter, the International Criminal Court plays no part.

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

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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

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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?

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