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Baroness Scotland of Asthal: I understand the concerns of the Members opposite. They are seeking to protect service personnel who are acting properly in the discharge of their duty. I reassure the noble Lord that this Bill does not seek to entrap those who behave properly in the discharge of their duty in accordance with international law. However, it seeks to catch those acting outside the proper boundaries or borders of permissible activity.

As the noble Lord, Lord Lester, made clear, the amendment would catch none of those whom we wish to be trapped by the Bill, but would set all free. I am sure that that is not the purpose behind the amendment. If it were, I should have become confused and bemused about the stance being taken by Members of the Committee opposite. What I say to reassure the noble Lord is that the whole fabric of the Bill is constructed so as to make sure that those who behave properly will have nothing to fear from it. But, by the same token, we hope that the Bill will strike terror in the heart of the war criminal and will act as a tool to reinforce proper behaviour by all personnel.

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I understand why the amendment has been put forward, but it does not cure the ill which the noble Lord seeks to cure. What it may do is simply spread the disease. I know that that is not the noble Lord's intention. I invite him not to pursue the matter and to withdraw the amendment.

Lord Howell of Guildford: I am grateful to the noble Baroness for that invitation. I am rather sorry that the noble Lord, Lord Lester, brought Ruritania into the debate as an unfriendly country. I have always had a special affection for Strelsau, the Rassendyll family and even the castle of Zenda. But let us suppose that we are talking about countries that are hostile and that really exist. Those are countries for which, in many cases, legal processes are an extension of politics. I fear that we must be reconciled to the fact that even though some of those which have signed, let alone those which have not, would, if they come to ratify, be only too ready to put in all kinds of safeguards and protections, they would not be too overawed by whatever example we have tried to set.

I know that the doctrine put forward in the debate is that we must be a model and so on. "Up to a point, Lord Copper", if I may quote that phrase from Evelyn Waugh. Of course we must be a model up to a point, but not to the point where we remove safeguards in a belief, which is idealistic but is bound to be naive, that everyone will do the same and place their national interest in a lower place in order to elevate the high and noble purposes of the Bill. I do not think that will happen and we should not build too much hope on that.

The position of the United States came into the debate. It is not just Senator Jesse Helms who holds views that some regard as internationally extreme. It is a considerable range of responsible Senators, Congressmen, American lawyers, politicians and those who think hard about these issues. It is people like Senator Hatch, whom one could not possibly condemn as off the main track of sensible understanding of international values. I heard, alas, one eminent QC--he is not a Member of this House or of the other place--dismiss the whole of the American stance as arrogant. That made me very sad. If that is the approach, the chances of getting the United States to be part of the court and to give it the credibility without which it will not be half as effective as we want are very low indeed. I hope that it is not the approach of anyone in your Lordships' House. I am sure that it is not the approach of the Government. I do not even suggest that. However, the American view must be changed if the court is going to work.

I leave aside for a moment the problems of China and India, which have a third of the world's population and do not look too willing to move, although the Indian Government may take a different view in due course. There is the real difficulty that, as the statute cannot be amended for seven years, the very proposition which even President Clinton signed looks a little awkward, although there will be some room for negotiation in the assembly. After all the efforts of the previous US negotiator--the sincere efforts which the

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noble Lord, Lord Lester, mentioned--to get a workable system, the idea that somehow the United States can find its way back into the system in seven years' time and will go along with it in the meantime is completely unrealistic. It is my view that, if this is to succeed as a project, something will have to give. I am not sure that I can see exactly what that will be, but I am equally sure that if we all stand pat on the present arrangements and keep America out, that will be a disaster for the whole project.

Having said that and fully accepting that we cannot lead the way on this--this amendment conflicts with the Rome Statute as it stands; it was tabled to provide an opportunity to hear the Government's final and reiterated views on the matter--I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

[Amendment No. 135 not moved.]

Clause 77 agreed to.

Clause 78 [Extent]:

Baroness Scotland of Asthal moved Amendment No. 136:


    Page 37, line 41, after ("except") insert ("section 32 (transfer of prisoner to give evidence or assist in investigation) and").

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clauses 79 to 83 agreed to.

Schedule 10 agreed to.

Schedule 1 [Supplementary provisions relating to the ICC]:

Lord Lamont of Lerwick moved Amendment No. 136A:


    Page 40, line 4, leave out paragraph 1.

The noble Lord said: I should like to raise a number of points relating to Schedule 1. The first relates to the question of immunities. We see that the Bill as a whole is a feast for lawyers; a tremendous input has come from the lawyers. We have been given long lectures on how no immunities should be granted to anyone. There is to be sovereign immunity, no diplomatic immunity or, indeed, any immunity for anyone other than lawyers.

In paragraph 1 of Schedule 1 we find tucked away the most interesting provision in the entire Bill: subordinate legislation conferring privileges and immunities on the ICC. I should like to ask the noble Baroness why it is necessary to confer such immunities on the court. Is it normal for courts to enjoy immunity? For example, only yesterday a story was published in the newspapers concerning a judge in the Czech Republic. He has been accused of taking a bribe in relation to a court case held some years ago. What will be covered by these immunities? Will it be impossible for people to seek redress against judges if they are thought to have behaved in any way improperly? I refer to questions of miscarriages of justice; namely, not matters that would normally be the subject of an appeal.

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I notice that the schedule also makes provision for pensions. Those pensions are presumably ones for UK judges to the ICC, to be paid out of UK taxation. That raises the question of the resources to be made available to the court. I should be grateful if the Minister could comment on what resources are to be made available. How much is it thought that British taxpayers will have to contribute? What will be the situation if other governments do not contribute? It is important, if multi-national or multi-lateral funding is to be used for the court, that it should not be dominated by one country or a group of countries.

A criticism that I would level at the tribunals in the former Yugoslavia is that they have been excessively dominated in their funding by Muslim countries. I suggest that that could be perceived as calling into question the impartiality of the court.

I have previously raised with the Minister the question of whether it is appropriate for a court to be partly privately financed. I understand that part of the finance for the equipment used in the Yugoslav tribunals was provided by Mr Soros. Contrary to legend, I have nothing against Mr Soros, in this or any other context, although the French authorities seem to have some quarrel with him. But I question whether it is appropriate for a private individual to fund a court in this way. We regard it as unthinkable that a court nationally should be partly privately funded. I should like the Minister to address the source of the funding, whether it will be evenly spread and whether it will be dominated by particular countries. Those questions give rise to a number of concerns.

Paragraph 3 of Schedule 1 refers to the power to give effect to the Rules of Procedure and Evidence. Perhaps I may ask the Minister to say a little more about that. In particular, will she say how we can ensure that in the minds of judges standards of proof and standards of guilt are the same? What will be done to bring about a harmonisation of standards and expectations?

I have heard from many members of the Bar and lawyers who have appeared before the Yugoslav tribunals. I have not heard unmitigated praise for the way in which the judges operate or for the way in which the rules of procedure of those courts operate. For example, is it intended that we shall have rules relating to the length of time that someone can be detained before being brought to trial? I have heard all kinds of criticism from people who have appeared before those tribunals. I know that they would prefer not to be named, and they will not be named by me. However, I can say that they hold great reservations about the operation of such tribunals. I make that point because, when a similar point was raised earlier, the noble Lord, Lord Goldsmith, and others expressed horror that any criticism should be made. The decision whether or not to establish an international criminal court should, at least in part, be based on the experience of those involved with tribunals relating to the former Yugoslavia. Not everyone who has been professionally involved with those tribunals holds the rose-coloured spectacle view of them that has been put forward during the debate.

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My final point relates to paragraph 4. The orders made under paragraphs 1 to 3 will extend to Scotland. This paragraph provides that they shall be made only with the consent of both Houses of Parliament and the Scottish Parliament. What will happen if the House of Lords says "no" to one of those but the Scottish Parliament says "yes"?


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