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Earl Attlee: I remind the Committee that I have an interest. I have a simple question for the Minister. When we accept diplomatic credentials from a non-state party's diplomats will we be seeking a waiver under subsection 2(b)?

Lord Avebury: The noble Lord, Lord Lamont, raised a number of interesting examples. I wondered when he would come on to Chile. I was very disappointed that he did not refer to the possibility that, if the International Criminal Court had been in existence, some of the leaders of Chile could have been tried under those provisions. Equally, the other examples that he gave were ones which have happened in the past and do not fall to be considered under the Bill because the jurisdiction of the International Criminal Court is not retrospective. So whatever we may think, for example, about the desirability of prosecuting Mr Savimbi, who has undoubtedly committed, as the noble Lord said, a huge number of war crimes in Angola, that possibility is not open for us.

Lord Lamont of Lerwick: The point I was making does not relate to Mr Savimbi but to the general principle. There will be Savimbis in the future; there will be conflicts like the Angolan conflict in the future. I was not seeking to refer to an individual or an individual's situation but to a general principle exemplified by that and which I believe will occur in the future.

Lord Avebury: To pursue the example; Mr Savimbi would already have committed crimes under the ordinary law of Angola. He could be tried under that law. The previous example that the noble Lord gave, which is equally important, was that of Mr Foday Sankoh in Sierra Leone. Mr Foday Sankoh can be tried under the ordinary criminal law of Sierra Leone. I am not altogether clear why the Government and the United Nations consider it necessary to establish a special tribunal to deal with war crimes committed, as he said, in the most appalling civil conflict there, when they can be dealt with under ordinary law. The same applies to Chechnya. Chechnya is technically under the internal jurisdiction of Russia. Any crimes or war atrocities committed by the troops or by the forces of

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the Chechnyan separatists could be dealt with in the normal course of Russian law. Similarly, there are other examples where domestic crimes are committed within the boundaries of a state.

There may be an argument--there has been an argument, as the noble Lord, Lord Lamont, says, in the past--for putting an end to a conflict by allowing a head of state or someone who is at a very senior level responsible for crimes that have been committed in that state, to go into exile. The two examples that occurred to me as the noble Lord was talking were Idi Amin and Mengistu in Ethiopia. But if one thinks about that latter example, there have been quite a few trials instituted by the newly elected government of Ethiopia. Under their ordinary law they have dealt with the people who committed atrocities under Mengistu and he is the only one that escaped. Therefore, if one is saying that it is desirable, from the point of view of putting an end to a conflict, to let the person at the apex of the tyranny and the repression go into exile and live a comfortable life in Saudi Arabia or Zimbabwe while all the underlings who have committed the atrocities while subject to his orders are to be tried, one must disagree with the noble Lord, Lord Lamont. It is surely desirable that we have on the International--

Lord Lamont of Lerwick: Can I put the moral choices to the noble Lord another way? Suppose a war has reached a virtual stalemate. It has gone on for a decade. The only prospect is continuing casualties on both sides. Is it better to fight to the last man until there is no one left or to have a negotiated settlement, which would be impossible under the Bill?

Lord Avebury: If one looks at the cases that we are discussing that would not have happened. I believe that Mengistu was on his last legs at the time when, under American pressure, the Zimbabweans agreed to accept him. Furthermore, in the case of Uganda, Amin would have fallen after the Tanzanian invasion. It made very little difference that he was allowed to go into peaceful exile in Saudi Arabia. Unless the noble Lord can show that letting these dictators off scot-free in the past has been helpful in saving thousands of lives, I do not believe that he has a very good argument. I go further than that and say that if the provision that removes immunity from all officials, including heads of state, of state parties was not in the statute, we should not have the deterrent effect. The whole point of the statute is not simply to bring people to trial for these horrible offences, but to create a powerful deterrent which will stop the offences being committed in the future. If the person at the top believes that he will escape scot-free by having such an immunity--

Lord Lamont of Lerwick: Perhaps I may put another case. Would it not be in the interests of the people of Cuba if the president of Cuba stood down? But how is the president of Cuba likely to stand down when he might face prosecution for crimes committed in his own country?

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Lord Avebury: The whole point that I was trying to make to the noble Lord is that these people--Castro, Savimbi, and so on--are not subject to proceedings under the International Criminal Court anyway because the atrocities that they have committed are in the past and swept into history. It is only crimes committed by Mr Castro or Mr Savimbi after the statute came into force with the requisite number of signatories that will be subject to the jurisdiction of the court. So, while the noble Lord has made an interesting point about the immunity of heads of state, it is not one that we have to consider under the Bill. The Bill only brings into effect the provisions of the International Criminal Court Statute. The International Criminal Court Statute says that there will be no such immunity and it would be impossible therefore for us to make any provision in the Bill which does not agree with that.

The Earl of Onslow: When we were last in Committee the noble and learned Lord, Lord Williams of Mostyn, met me on the stairs and said that no hereditary Peers were taking part in the debate. I noticed that the noble Lord, Lord Avebury, was. I shall now disabuse him. I shall disabuse him because of what my noble friend Lord Lamont has said. I shall put the issue in a long and historical context.

The essential point is to stop punch-ups. When Charles II came back to this country he realised that there had been social upheaval and crimes committed by both sides. Because he never wanted to go on his travels again he determined that as much as possible should be forgotten and forgiven. Incidentally, that is why I still own my small property in Surrey. So I am extremely pleased with Charles II.

Having said that, he recognised that civil war--punch-ups--always involve horrors. It is essential to allow people to get away and escape to stop the continuation of those punch-ups.

The French in 1815 did not learn that lesson. I suggest that, in some ways, the Allies in 1918 did not learn the lesson of a gentle peace. It is no good the noble Lord, Lord Avebury, referring to Mr Castro. Is it not lovely how criminals and dictators are always called "Mr", but if someone is nice and pleasant he is always called by his Christian name by the media? That is one of the supreme ironies. Mr Castro is not going to be tried for anything retrospectively. If he did do something nasty, he would be tried for that.

However, we have to live in the real world. I am not defending the nasties, but we know that they exist. It is the nature of the conflict of mankind. If we want to get rid of the nasties, we must exorcise the poison. That frequently means letting very unpleasant people live in villas in the south of France on ill-gotten gains, which have probably been paid for by taxpayers in Scunthorpe, Washington or Paris, and which have been siphoned off into Swiss bank accounts. We have to swallow our disgust at their behaviour and say that it is better for that to happen, as my noble friend Lord Lamont says, than that the slaughter continues. We should bear in mind the fact that we sometimes have to accept that, and that is why I am sympathetic to what my noble friend said.

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4 p.m.

Lord Archer of Sandwell: Before the noble Earl sits down, does he agree that it is very easy to bear the sufferings of other people in a forgiving spirit?

The Earl of Onslow: I quite understand that, and I equally understand the serious moral dilemma involved. We have to weigh the balance between ending something by getting the nastiness out of the way and holding our nose and thinking that although we do not like the man, we would rather that he lived in a villa in the south of France than that the slaughter should continue. I accept what the noble and learned Lord, Lord Archer, says because I know that he is a great fan of human liberty, for which I admire him. I hope that I am as well, but occasionally one has to hold one's nose in its defence.

Lord Hurd of Westwell: I had not intended to speak in the debate, partly because this is a detailed clause and partly because I could not attend at Second Reading for which I was unable to apologise. In view of the way in which the discussion has evolved in the past 20 minutes, I want to add a word of sympathy for the basic point that my noble friend Lord Lamont raised. On several other quite important matters, I do not agree with him, but I share instinctively some of his concerns on this matter.

Quite often, there is a tension between peace making and justice. My noble friend gave some examples of that. The noble Lord, Lord Avebury, said that such examples related to the past. My noble friend was trying to project the dilemmas into the future by asking how we would handle these events if they happened again. Therefore, his remarks were legitimate.

I would add South Africa to my noble friend's list of examples. Serious offences were committed there, and the people against whom they were committed--to refer to the point made by the noble and learned Lord, Lord Archer-- decided not to proceed down the road of investigating and punishing crimes, although the allegations were serious and terrible and fell within the scope of what we are discussing. Instead, they set up a truth and reconciliation commission, with Archbishop Tutu as its chairman and Nelson Mandela as one of its authors, because they believed that that was a better way of securing the settlement of harmony in the rainbow nation. Most people thought that that was right and that it would have been wrong if one of those against whom allegations were made had turned up in London, Paris or Washington and had been arrested and brought before an international court when the judgment of those in the newly democratic South Africa was to have a different procedure.

My main worry about this whole concept is a slightly different one. We argue all the time in this House about matters of policy, and ethical foreign policy, which is a perfectly legitimate argument. Most of us accept, however, that in matters of policy there must be room for disagreement--even illogicality. In relations between a country like ours and the rest of the world, we cannot be expected to be completely consistent in everything. The moment that we begin to

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shift, or claim that we are shifting, on matters of policy from the discretion of Ministers or parliamentary control to matters of law, we are trying to elevate discussion to a different level. If law is to be valid and valuable, it needs to be impartial and universal. Unfortunately, that concept, coming out of the Rome treaty, is unlikely to be either. It will affect those who are useless from a point of view of diplomacy, those who are defeated and those who are weak. It will not touch those who are powerful and continue to be important players in the world of diplomacy. In policy, we have to make these discriminations, awkward though they may be. Once one begins to talk about international law, one has to achieve a higher degree of impartiality than we shall do under the treaty or the Bill.

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