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Lord Howell of Guildford: My Lords, my noble friend Lord Lamont has done the House a service in moving this amendment. It has enabled us to focus on the position of the United States for reasons that I touched on when speaking to an earlier amendment. I agree with the noble Lord, Lord Lester, that the participation of the United States is much to be desired and encouraged.

Perhaps I may say to the noble Lord, Lord Clinton-Davis, who speaks with great sincerity, that, with respect, what my noble friend Lord Lamont is saying is not a doctrine of despair but rather a doctrine of positive encouragement. It is possible that we shall be able to bring the United States into this great scheme. As the noble and learned Lord, Lord Archer of Sandwell, reminded us, certain senior lawyers in the American Bar Association believe that this is the right way to go. Unfortunately, however, there are certain very senior people, ranging right across the political spectrum and at the highest legal levels in the United States--regardless of whether they are Clinton or Republican appointees--who believe that the statute is seriously flawed. I do not think that that opinion can be laid entirely at the feet of Senator Jesse Helms. I do not want to be disrespectful to him, but it must be said that he is generally perceived as representing one wing of politics. It is neither fair nor accurate to suggest that all opposition to the measure has emanated from him.

The previous American president, President Clinton, stated that:

he authorised that just before the end of his presidential term--

    "we are not abandoning our concerns about significant flaws in the treaty".

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The president referred to "significant flaws", but the presentation offered to this House has been one that suggests that this is a treaty that we must sign lock, stock and barrel; that we have to sign up to the whole statute because it cannot be changed; and that the Bill before us must therefore mirror, reflect and emulate the statute as closely as possible. Personally, I do not believe that that doctrine is accurate. I believe that later we shall see that other countries have not followed that course.

The expression "significant flaws" was a strong phrase for the then American president to use. To dismiss that or to say that it is not well founded suggests a leap of faith that I for one would not necessarily wish to follow. I believe that the United States can be brought along if we are careful and if we do not dismiss its concerns as being merely arrogant or isolated. We must recognise that it has been worried all along, even though it negotiated fully in the earlier meetings that informed the drafting of the Rome Statute. At the end of 1998, one of the notes that it sent to the Secretary-General stated that it was profoundly worried that the correction procedures for amending the then draft Rome Statute were not being properly followed in accordance with normal procedures on these occasions.

With regard to the flaws in the treaty, there are many areas where wise support of the project leads one to be very careful about dismissing the views of the highest Americans and says instead that we should proceed with the greatest of care and make our own points--without going back over the previous amendment--and put down our own declarations about how we wish to go forward.

That is the way to encourage the Americans to come along. That would be the greatest possible asset that those who genuinely have the interests of this project at heart could contribute in this place. My noble friend has therefore done us a service in enabling us to look at the amendment and discuss the central position of the Americans.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I viewed the amendment with a little surprise and disappointment. I was tempted in reply simply to say that I agreed wholeheartedly with the comments made by my noble friend Lord Clinton-Davis and by the noble Lord, Lord Lester, and to say no more. But that would not do justice to the issues that the noble Lord, Lord Lamont, has raised.

Perhaps I may say straightaway that we have the greatest respect for our American partners. They have been with us in many times of trouble. We take their important views very seriously. But I remind the House that our American partners are now in the same position as Zimbabwe and Iran. They too have signed but not ratified the statute. I am sure that the noble Lord would not suggest that we should await the ratification of it by either of those two states before we independently come to our own judgment.

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This House is a House of Parliament in Britain. The Members of the other place were voted into government by the people of this country--and it is our decisions, our views and our debate which is the most important.

If, in the past, we had adopted the surprising and somewhat unusual approach advocated by the noble Lord, Lord Lamont, we would not have ratified the Convention on the Rights of the Child, the Ottawa Convention on Anti-Personnel Landmines, the Additional Protocol to the Geneva Convention of 1997, or the Geneva Convention on the Law of the Sea. We would have had to wait a great many years to ratify the genocide convention. Therefore, that is not a position that attracts Her Majesty's Government. I am sure that when a different administration were in power, they would not have attracted noble Lords who now sit opposite and form part of her Majesty's Loyal Opposition.

Many noble Lords have spoken with great passion about the independence of this country. Therefore, it is with some surprise and no little disappointment that I listened to the matters now being advocated by some of the same noble Lords. It is right to say that opinion in the United States is not as clear cut as the noble Lord, Lord Lamont, seeks to suggest. There is a good deal of discussion and debate. I hope that the noble Lord will forgive me for also belonging to that somewhat ill-fated profession of lawyers, and saying that lawyers, too, have the ability to look at what is in their national interests. As has been stated, many lawyers in America have said very clearly that they are concerned that the United States has chosen to drag its feet in relation to the matter. We hope that we shall encourage it to change and see the benefits of the negotiations in which it participated to make the statute as good as it now appears to be, balancing--

Lord Archer of Sandwell: My Lords, I thank my noble friend for giving way. Does she agree that when what has been put forward by 10 of the most distinguished lawyers in America is that the opposition is based on a misconception of international law, it is something which perhaps should be taken seriously?

Baroness Scotland of Asthal: My Lords, I respectfully agree. But I would invite the noble Lord not to press this matter to a Division, not to surrender our sovereignty, and in doing so to say that this is not an appropriate matter for Her Majesty's Government.

Lord Lamont of Lerwick: My Lords, I am very sorry to have caused so much hand-wringing and to have disappointed the Minister. She was speaking with such sorrow and was disappointed in my approach. I have no intention of putting this matter to the vote. As the House well understands, I wanted to raise the issues that have been seriously put by the United States. The matter has nothing whatever to do with sovereignty. That really is a nonsensical argument; talk about the word "eccentric"" It is completely illogical to say that in one instance we should follow an example of another country voluntarily, through our own

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Parliament in a matter that is for our own free decision. What that has to do with all the other conventions and following the Americans, I simply cannot see. I am surprised that the Foreign Office could not come up with something better to put in the Minister's brief because that really does not follow. I have no intention of pressing the matter to a vote. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 12 [Right to review of delivery order]:

Baroness Scotland of Asthal moved Amendment No. 4:

    Page 8, line 16, leave out ("(8)") and insert ("(9)").

The noble Baroness said: This is a technical amendment. As a consequence of the changes made to Clause 5 on Report, I regret that a minor drafting error has occurred in Clause 12(4)(b). The intention is that, like the competent court, a higher court which hears an application for habeas corpus will be able to issue a declaration if it determines that the person's rights have not been respected. That declaration shall be transmitted to the ICC.

As it presently reads, subsections (4) to (8) of Clause 5 would apply to a court hearing an application for habeas corpus but not subsection (9), which provides for a declaration by the court to be passed to the ICC. The amendment would remedy that error. I beg to move.

On Question, amendment agreed to.

Clause 51 [Genocide, crimes against humanity and war crimes]:

5 p.m.

Lord Avebury moved Amendment No. 5:

    Page 26, line 5, at end insert (", or

(c) outside the United Kingdom by a non-United Kingdom national, when the alleged crime was committed against a United Kingdom citizen.").

The noble Lord said: My Lords, as Clause 51 stands, it is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime, but only if the act concerned is committed in England or Wales, or outside the United Kingdom by a UK national, a UK resident or a person subject to UK service jurisdiction.

On previous occasions, without success, we have tried to remove those restrictions. I do not propose to return to that general argument now. I deal with the limited case where the victim of a Rome Statute crime outside the United Kingdom is a British citizen. That is a point that I have raised on two occasions in the past without eliciting any response from the Minister on the Front Bench.

If a person who is alleged to have murdered a British citizen in the course of an internal armed conflict comes here and we cannot arrest him because we deliberately failed to take the power suggested in the amendment, the British people might find that very hard to understand or excuse. The Minister may say that if the evidence is good enough the ICC would, in

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any case, issue a warrant and the offender would be taken into custody following the procedures in Clause 2. But would that always be so?

Your Lordships may remember the case of Tharcisse Muvunyi, against whom the Rwanda Prosecutor-General said there was overwhelming evidence of his involvement in the genocide in Rwanda, and yet it was not until February 2000 that he was arrested and brought before a court in London, having lived here since March 1998. So it took nearly two years to get around to issuing an indictment. One must suppose that the International Criminal Court, with a great many more cases than either of the two existing tribunals, will not issue indictments more expeditiously than either of those tribunals have done in the past.

A few minutes ago the noble and learned Lord, Lord Williams of Mostyn, underlined the principle of complementarity; he said that only if the domestic jurisdiction is unable or unwilling to exercise its powers would the ICC come into play. I agree that the whole thrust of the legislation is that, wherever possible, the load should be taken off the shoulders of the international court and dealt with in the domestic jurisdictions of signatory states. It would be helpful to the ICC if this minor extension of our domestic jurisdiction were to be agreed.

In previous debates, I have mentioned the case of Mr Yunus Yosfiah, who was a special forces major at the time of the clandestine Indonesian invasion of East Timor, where he was commanding the unit that murdered five newsmen, including two Britons--Malcolm Rennie and Brian Peters--on 16th October 1975. Those journalists were in Balibo when the Indonesians arrived. An eye witness reported that the journalists were dressed unmistakably in civilian clothes; that they had painted an Australian flag on the wall of their house; and that it was perfectly obvious that they were not combatants. But when the Indonesian forces came into the town of Balibo they shot first Brian Peters and then, as the remainder of the journalists were frantically pointing at the Australian flag and shouting "Australians, Australians", the troops surrounded them and fired automatic weapons at them until they were all dead. The bodies were then burnt so as to remove the evidence, and only fragments of bone were handed over to the Australian authorities a few weeks later.

This Yosfiah spent a year in Britain at the Royal College of Defence Studies in 1989, as Hugh O'Shaughnessy revealed in the Independent in November 1995. We were unaware of his presence at that time, but imagine the outrage if it had become public knowledge that a foreign officer, who was an honoured guest of Her Majesty's Government, had murdered two Britons in cold blood some years earlier but could not be arrested in the United Kingdom for that crime. That would have been the situation then; we could merely have asked Mr Yosfiah to leave the country.

But suppose that all those events were transposed into the future. What will people say when they know that the failure to prosecute results from a deliberate

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omission by your Lordships and by the Government? Admittedly, these cases will be extremely rare, but they could become less so as time passes. We have more and more British civilians working as technicians, professionals, humanitarian workers and UN observers in situations of armed conflict such as Chechnya, the Balkans, Angola or Colombia.

From time to time, unfortunately, there may be murders of British civilians such as the three telecoms experts who were abducted in Chechnya in October 1998 and then brutally decapitated two months later. In that case, the Russian authorities say that they have arrested the killers. Nearly always, the government concerned would take responsibility for catching and prosecuting those who commit war crimes. But the whole purpose and rationale of the ICC is that sometimes it is the governments themselves or their agents who are guilty, as they were in East Timor, as I have mentioned.

The amendment envisages a very special set of circumstances: that a British citizen is the victim of a Rome Statute offence in some other country; that the authorities of that country are unwilling or unable to prosecute the perpetrator or that he is careful to stay outside their jurisdiction; that the ICC has not got around to issuing an indictment against the perpetrator; and that he comes within our jurisdiction. The case of Yunus Yosfiah shows that the combination is not impossible. I beg the Government to accept this small extension of our jurisdiction to deal with it. I beg to move.

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