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Lord Lamont of Lerwick: I should like to raise three points on Clause 2. First, can the noble and learned Lord tell the Committee what details must be satisfied as regards the warrant? Subsection (3) provides:

I assume that there are some other criteria which the warrant must satisfy and it is not sufficient merely that it is a document issued by the court. Presumably, that document must be drawn up according to certain rules.

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My reason for raising this matter is prompted by an issue which arose in the case of General Pinochet. The noble and learned Lord will recall that in that case the Lord Chief Justice held that the arrest warrant was not a good one. Subsequently when that document was referred to as a defective warrant the noble and learned Lord was quick to say, no doubt correctly, that it was far from being defective but none the less it was not good. I should like the noble and learned Lord to tell the Committee what criteria the warrant must meet other than simply that it is issued by the ICC.

My second point is a more general one. The noble and learned Lord has rejected the amendments tabled by my noble friends on the Front Bench and referred to the demands of the statute and, therefore, the need for automaticity. That is all very well, and I follow the logic of it. However, perhaps to anticipate a point to which the Committee will turn later, Clause 65 is concerned with the doctrine of command responsibility. Whether the commander of certain forces really has control over the behaviour of his troops is a very subjective matter. Some jurists have been very critical of a number of the judgments that have been made, particularly as regards people convicted in the Far East after the Second World War. I am also aware that a number of eminent American jurists have been extremely critical of the way in which that command responsibility was applied after the Second World War. Therefore, I believe that the points made by my noble friend on the Front Bench must be looked at in the context of command responsibility, which can be very subjective.

Thirdly, I should like to repeat the point that I put to the noble and learned Lord in relation to the amendments. The noble and learned Lord had many points to answer but he did not manage to deal with that question or the matter raised by the noble Lord, Lord Monson. How will these provisions apply when a national government wishes to have a domestic amnesty? How will they apply in the case of Northern Ireland when sometimes political decisions are made about the most horrendous crimes committed on our own soil?

Lord Lester of Herne Hill: Perhaps in responding the noble and learned Lord can confirm that my understanding of the position in relation to the first point raised by the noble Lord, Lord Lamont, is correct. In Clause 2--request for arrest and surrender--subsection (3) provides that the judicial officer must be satisfied, according to normal principles of English administrative law, that the warrant appears to have been issued by the ICC and endorse it for execution. When one reads that provision together with Clause 5(2)(b), the competent court--the UK court--must be satisfied,

    "that the person brought before the court is the person named or described in the warrant".

According to my understanding of English law, that means that the court must be satisfied on the basis of proper material.

If one ties that in with the ICC statute just to see how

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full the safeguards are, Article 59(2), which deals with arrest proceedings in the custodial state, provides:

    "A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State"--

that is to say, the normal English principles of public law--


    (a) The warrant applies to that person"--

that must be decided to the appropriate standard on the basis of proper evidence--

    (b) The person has been arrested in accordance with the proper process; and

    (c) The person's rights have been respected".

If my understanding is correct--I should be grateful if the noble and learned Lord can confirm it or otherwise--it appears that there are adequate safeguards against any abuse or miscarriage that may arise both under the statute and the statute read together with Clause 2 of the Bill.

Lord Avebury: I have one additional point only to add to what the noble Lord has said about the contents of the warrant. That is the provision of Article 91, paragraph 2(c), of the statute where it states that the documents must contain,

    "such information as may be necessary to meet the requirements for the surrender process in the requested State".

It goes on to provide that,

    "those requirements should not be more burdensome than those applicable to requests for extradition"

in the normal course of extradition proceedings. Therefore, the warrants supplied by the International Criminal Court have to be at least on all fours with those which are provided for extradition under treaties in force that we have signed with other states.

Lord Williams of Mostyn: The noble Lord, Lord Lamont, really asked questions with three aspects. The first related to the technical quality of the warrant document. I believe that he will find the answer to that question at paragraph 5 to Schedule 1 to the Bill. That states:

    "An order, judgment, warrant or request of the ICC which purports--

    to bear the seal of the ICC, or

    to be signed by a person in his capacity"--

then I omit some words because they are on the face of the Bill. That is not dissimilar to--I say I hope by way of assistance--the kind of scheme that we adopted successfully some years ago; the backing of warrants regime with the Republic of Ireland. So I hope that that deals with his technical question on the nature of the warrant.

The second question he raised related to command responsibility. Since Nuremberg--about which I know there are differing views--the principle of command responsibility is well-developed in international law. I do not think that it is subjective; it is perfectly simple. Indeed, if one had domestic proceedings in this country and a commanding officer in the Armed Forces gave an unlawful order which was

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then carried out resulting in death, both the soldier and the person who gave the unlawful order are liable to be tried for murder. It is not a difficult concept; it is a question of proof in particular circumstances.

Lord Lamont of Lerwick: With great respect to the noble and learned Lord, is that really what "command responsibility" means? I know we shall debate this issue later, but my understanding is that command responsibility might be held to apply even though there is no actual concrete evidence that a general or a commanding officer had actually issued any such orders. The case that I referred to--I am afraid I do not have the details here but I intend to refer to it when we come to the relevant clause--related to a Japanese general who was executed in the Philippines. A good many people were critical that there was no evidence, but none the less command responsibility was alleged to apply to him simply by merit of his rank and the bad behaviour of his troops. No one questioned that the troops behaved badly.

Lord Williams of Mostyn: The noble Lord is probably right that we should deal with the matter in its appropriate place. But I do not think there is a difficulty about proof of command responsibility. It may be proved directly in the illustration I gave; it may be proved structurally. But that is a matter of whether the court is satisfied beyond reasonable doubt that the charge has been made out. However, as the noble Lord said, we shall refer to this matter later.

The noble Lord returned to the question of amnesty. These are crimes of the gravest kind. It is extremely unlikely that an amnesty could legitimately be given. But the answer to the question is that the ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty had been proclaimed, but not where it was a purely bogus or cosmetic amnesty for illegitimate purpose.

Clause 2 agreed to.

Clause 3 [Request for provisional arrest]:

[Amendments Nos. 8 and 9 not moved.]

4.45 p.m.

Lord Kingsland moved Amendment No. 10:

    Page 2, line 38, leave out ("instruct") and insert ("request").

The noble Lord said: Amendment No. 10 concerns a Scottish matter. It arises under Clause 3(3). There is a view that Scottish Ministers should refer the application for a provisional arrest warrant to the procurator fiscal for his or her consideration. It should then be a matter for the procurator fiscal to determine whether the criteria for justifying such a warrant have been met and whether the application should be submitted.

As the noble and learned Lord the Attorney-General is aware, in the Bill as currently drafted, the procurator fiscal would have no discretion to decide whether an application is appropriate. That would represent a

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significant departure from the procedure of applying for warrants in other criminal cases. I beg to move.

Lord Williams of Mostyn: This is back to the earlier discussion between "shall" and "may" but is put slightly differently because of the different context of "instruct" and "request". My stance remains the same. What is provided here is a similar scheme; namely, if it appears to the Secretary of State that an application for a warrant should be made in Scotland,

    "he shall transmit the request to the Scottish Ministers who shall instruct the procurator fiscal",

but simply to take the step of application for a warrant for the arrest of that person. It seems to me that there is no difference in the scheme, apart from the wording, to that which Members of the Committee have already agreed.

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