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Lord Avebury: First, I apologise to the noble and learned Lord, Lord Archer, for the apparent discourtesy. I had imagined that after my noble friend Lord Lester spoke to me he would have said something to the noble and learned Lord. It is my fault for failing to speak to him before coming into the Chamber. I humbly apologise for any discourtesy.

I am grateful to the noble and learned Lord for going part of the way with us and agreeing that there is a point to be examined in so far as a power to direct the proceedings should not continue where the accused is a national of a state party. I could not for the life of me conceive of circumstances in which the Secretary of State would want to direct that proceedings should be discontinued in relation to a person who has no immunity because the state party has acceded to the ICC statute and has therefore waived all the immunities. It is therefore inconceivable that any circumstances could arise which would require the Secretary of State to think about exercising the kind of discretion he is given under subsection (4).

However, we go further and continue to insist that it is wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events which would take place if there were any dispute about the matter. The noble and learned Lord reaffirmed that there would always be consultations between the Secretary of State and the ICC and between the Secretary of State and the non-state party in order to ascertain, first, the fact that no waiver had been issued and, secondly, that the person had the immunity which he claimed.

The circumstances in which the Secretary of State would want to exercise his discretion would be that the ICC and the Secretary of State disagree on whether the accused had made out a case that he was a member of

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the non-state party and had the immunities which he claimed. We say, and every non-governmental organisation which has examined the point has told the Government, that this is a matter for the ICC and not for the state concerned to which the request is made.

I am afraid that we must disagree about that and return to the matter on Report. However, I hope that it will be possible for us to engage in further conversations with the noble and learned Lord. I speak without the authority of my noble friend Lord Lester, but knowing his character as I do I am sure that he would prefer to resolve the issue by rational argument between us and the Minister rather than by a confrontation on the Floor of the Chamber. I am pleased to see the noble and learned Lord nodding his head.

On the assumption that we can continue to pursue the subsection (2) matter and with the assurance that the noble and learned Lord will look at subsection (1), I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 74:


    Page 13, line 12, at end insert--


("(4A) The power conferred by section 1 of the United Nations Act 1946 (power to give effect by Order in Council to measures not involving the use of armed force) includes power to make in relation to any proceedings such provision corresponding to the provision made by this section in relation to the proceedings, but with the omission?
(a) in subsection (1), of the words "by reason of a connection with a state party to the ICC Statute", and
(b) of subsections (2) and (3),
as appears to Her Majesty to be necessary or expedient in consequence of such a referral as is mentioned in article 13(b) (referral by the United Nations Security Council).").

The noble Baroness said: Amendment No. 74 deals with the particular circumstance in which the ICC investigates a situation at the request of the United Nations Security Council. Any Security Council resolution passed under Chapter VII of the UN Charter would be binding on all UN member states. Such a resolution could include a provision that any indictee be arrested and surrendered to the ICC. Such an indictee might be a representative of a state which was not a party to the ICC, and a representative who enjoyed diplomatic or even state immunity. We would nevertheless be obliged to surrender that individual as a result of UN action, and this amendment gives us the power to do so. It provides for an order-making power under the UN Act. That power would be exercised on a case-by-case basis. Any Orders in Council would be put before Parliament in the same way as existing Orders in Council under the UN Act and, therefore, both Houses would have an opportunity to look at the matter.

This is an important provision to enable us to meet a possible obligation which would arise out of a future UN Security Council resolution. I am grateful to my noble friend Lord Goldsmith for drawing our attention to the issue at Second Reading. Amendment

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No. 133 makes a very minor change to Clause 76 as a direct consequence of Amendment No. 74. I beg to move.

On Question, amendment agreed to.

3.45 p.m.

On Question, Whether Clause 23, as amended, shall stand part of the Bill?

Lord Lamont of Lerwick: I should like extremely briefly to make a couple of points. My concerns are very much at odds with what has been expressed and are very much in a contrary vein to the drift of the main argument. First, I should like to express my caution about the lack of discretion, rather than the concern, which has been expressed, about too much discretion. I have a certain amount of disbelief about the effective abolition of state immunity from representatives of government and heads of state. I have reservations about the desirability of that, and very considerable scepticism as to whether the law will be applied in that way. Are we really to believe that any Israeli head of state or Prime Minister will be indicted? Many people have harsh views about the newly elected Mr Sharon, but I am doubtful whether anyone would be so bold as to initiate proceedings against him which would have extremely inflammatory consequences in a tense situation. I suggest that, in reality, whatever may be the evidence in Chechnya about the behaviour of troops of the Russian Federation, no one would consider indicting Mr Putin. Whatever the appalling record of the People's Republic of China in Tibet, where according to some estimates deaths run into hundreds of thousands, again one can be sure that that will not happen.

Perhaps the Minister can tell the Committee how, if it does happen, we can expect diplomacy to continue. Will diplomacy take place only by electronic communication? Will it not take place on third party ground? What guarantees will there be for heads of state visiting the United Nations? The Committee will recall that attempts were made to indict both President Mugabe and Fidel Castro. According to some estimates, the latter is responsible for 30,000 deaths. There were attempts to indict Fidel Castro when he arrived in New York, but somehow nothing happened. I find it difficult to believe that anything will happen, but it does not seem to me that that is the impartial rule of law.

My second point is one that I have raised several times. I apologise to the Committee for not having been present at Second Reading. Although I studied the report of the debate in Hansard, I was unable to find the point addressed in the speeches of the Minister. I refer to the point that I raised twice on the first Committee day in relation to the resolution of conflict by domestic amnesties. Both then and today we had in attendance a charm of lawyers. It seems to me that it is possible to argue that the continuing development of international law poses a real threat to conflict resolution. Unless one believes that every internal conflict should be fought to the last soldier

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and be resolved only through unconditional surrender, the automaticity that is upheld by enthusiasts for this Bill will mean that some civil conflicts will be longer rather than shorter.

One example of the kinds of contortion that a government might get into are the recent events in Sierra Leone. There the British Government pressurised President Kabbah's government to accept into coalition the RUF party, under the leadership of Foday Sankoh who, according to all accounts, had been guilty of the most appalling crimes, including the cutting off of children's limbs. In the interests of ending the civil war, after the Lome peace the British Government were anxious to do as much as possible to bring about an end to the domestic conflict. As everybody knows, things did not work out like that. In the rush for the diamond and mineral wealth of the country, the civil war resumed and Mr Sankoh, in his second incarnation, ended up being branded a war criminal. But Britain had had very different thoughts the first time when I put it to the Committee that the evidence was no less than it is now that the most ghastly acts had been committed by his supporters and troops.

I give another example of the dilemmas that can arise. According to the electronic version of the Daily Telegraph for Wednesday 2nd February 2000, Mr Peter Hain, former Minister of State at the Foreign Office, who has been a warm supporter of the International Criminal Court and this Bill, made a speech in which he said that African countries should,


    "offer Jonas Savimbi, Angola's rebel leader, safe passage [into] exile and immunity from prosecution for war crimes in an attempt to end the country's 25-year civil war".

According to the report, the Minister of State was asked whether a man branded a war criminal by southern African states should escape prosecution. Mr Hain, who confirmed that he used these words, said:


    "It is a matter for other African governments. But if the price of settling this devastating war ... was to reach an agreement with Savimbi on where he had a future outside of Angola ... all sorts of things become possible".

I continue the quotation:


    "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'".

I emphasise the words,


    " 'it would be possible to provide guarantees about that' ".

Far from being shocked by what the Minister said--in many ways that is entirely sensible--it seems to me that the logic of that is entirely at odds with the thrust of the Bill and the automaticity that is being urged in the so-called impartial application of law. I say "so-called impartial" because politics, political prejudice, fashion and mythology often intrude into views taken of conflicts. We delude ourselves if we think that politics can be entirely excluded from the resolution of such conflicts.

One might instance our own conflict in Northern Ireland which, viewed from another vantage in the world, might lead others to feel that perhaps we should

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not have had some of the amnesties that have been granted. I might not feel that. I do not feel that. But I can imagine someone else taking a different view. In Northern Ireland we have had a de facto amnesty in order to hasten what we hope will be the end of the conflict. I am not concerned about too little discretion, but that there is not enough. When I put this matter to the noble and learned Lord the other day, he referred simply to the fact that the prosecutor had a degree of discretion. But that is vaguely defined. I put it to the Committee that there is a clear conflict between what is proposed in the Bill and the ending of some ghastly conflicts. Sometimes wars--civil wars in particular--are brought to an end only by politics, negotiation and offers of safe conduct for those who have been involved.


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