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Discretion is given to the Secretary of State in subsection (4), which the noble Lord, Lord Avebury, wants to see removed, that after consultation with the ICC, proceedings under this part of the Bill can be stopped. In other words, the challenge to immunity can be challenged and immunity re-asserted. We need to know from the Minister how far the discretion goes and under what circumstances the Minister thinks it will be used. If it is used, will that be reported to Parliament and that the Secretary of State had so directed under his powers in subsection (4)?
Could one speculate a little as to whether it would be used to protect senior officials, senior Ministers, or even a head of state? The Bill is not retrospective but we can see situations in the recent past where our own senior Ministers, indeed, the Prime Minister, have carried responsibility for actions which have involved the killing of civilians and the intentional bombing of targets which may or may not be genuine military objectives. I have personal views that such actions were entirely right and proper, but many people have personal views that they are not; that they should be challenged and that they constitute war crimes. This might be a place where this barrier--we shall come to others which appear to exist in the Bill--could stand in the way of charges being raised, warrants being issued or even an investigation being initiated against a senior official who, in our view inside this jurisdiction, had acted properly and in the service of the state.
We need much more clarification. As for this being a model for other countries, I have to say that in general I hear the idealism of the noble and learned Lord, Lord Archer. Indeed, we heard similar idealism from the noble Lord, Lord Goldsmith, last week on the idea that if we follow certain lines and reduce our safeguards against certain unwelcome developments, even safeguards against our national interest, other countries will follow suit and we would have set a good example.
That is high idealism and it is splendid. However, I feel that with some little experience of international affairs it is completely unrealistic. The real world is not like that. There are many countries which have not yet signed, and even signatories such as Iran, which would not take the slightest notice of models and examples that we set. They would look after their national interests, certainly protect their senior officials and insist on immunity with gusto.
To turn the argument on its head, this particular case is one example which, if left in the Bill as the Government clearly want, will be a model that all the countries will follow. They will follow models which enable them to have more protection, more safeguards, more immunities and more guarantees so that they can frustrate the international jurisdiction,
Lord Archer of Sandwell: I am grateful to the noble Lord. If, as he says, it is true--it may well be--that if the provision we seek to delete is left in, other countries will regard it as a model, does he regard that as an argument for leaving it in or for taking it out?
Lord Howell of Guildford: I regard it as a case for looking at our own interests and leaving it in, not as a case for thinking too much about what will or will not be a model. I have tried to say that the general argument, which was used by the noble Lord with great sincerity, that other countries--perhaps some of the non-signatories which will become signatories such as China--will be influenced for one second by what we leave in or take out of the Bill, is a well-meaning fantasy. However, I also say that this case might be one example which they will follow. I do not know whether or not they will. Even if we leave it out, they will probably put it in again if they have similar legislation.
On balance, my own view starts from our own interests in the international context with a desire to make the Bill work. Nevertheless, I realise that in certain cases the discretion must exist. Therefore, I am not on the side of the amendment, but I should like some of the questions raised to be answered.
The Attorney-General (Lord Williams of Mostyn): I sympathise with what motivates the noble Lord, Lord Avebury and the noble and learned Lord, Lord Archer of Sandwell. However, they proceed on a mistaken analysis of what the statute brings about and what Clause 23 deals with.
The Rome Statute brings about a circumstance in which immunities shall not be a bar to prosecution before the ICC in respect of those states which have signed and ratified, because by signature and ratification they agree to the provision of non-immunity. This clause provides that diplomatic and state immunity cannot shield representatives of states parties from arrest and surrender to the ICC. That is the first proposition and the first step.
However--this is where the mistaken analysis creeps in--the same is not true of non-states parties. By virtue of subsisting international law which binds Her Majesty's Government, we have to accord diplomatic and state immunities unless the state concerned has agreed to waive them. Two matters follow from that. First, we hope that as many countries as possible will become states parties to the statute. Secondly, we hope that the remainder will not permit immunities to protect their representatives from criminal responsibility. That is the purpose of subsection (4).
Therefore, the provision has nothing to do with any weakening of the power of the ICC to bring to justice those against whom grave allegations are made who are representatives or nationals of state parties. Here we are dealing with the representatives of international sovereign countries which have not agreed to the ICC statute.
Lord Archer of Sandwell: I thank my noble and learned friend for giving way. I am trying to follow his argument. However, I am a little puzzled because subsection (4) provides that the Secretary of State may direct that proceedings shall not be taken against such a person as mentioned in subsections (1) or (2). Subsection (1) relates to states which are members.
Lord Williams of Mostyn: And subsection (2) refers to connection with a state other than a state party to the ICC statute. That is exactly the point I am making. One therefore has two categories. Some are representatives of states' parties and some are representatives of parties which are not state parties. That is exactly the point I am trying to make.
Lord Avebury: I do not believe that the noble and learned Lord has fully taken the point raised by his noble and learned friend. The power in subsection (4) allows the Secretary of State to direct that the proceedings do not go ahead in relation to a person such as is mentioned in either subsections (1) or (2). If the noble and learned Lord is arguing that we still need the discretionary power in relation to non-state parties, he has not explained why it is necessary to refer to both the subsections and not just to subsection (2).
Lord Williams of Mostyn: That is a legitimate point which, when it is put discreetly, is a better point than the point that my analysis is completely wrong. The analysis I am trying to put is at present based entirely on those who are representatives of non-state parties. I had understood--doubtless wrongly--that the noble Lord, Lord Avebury, and my noble and learned friend Lord Archer of Sandwell objected to both. We now understand the nature of the objection. I am saying that in respect of non-state parties, with which I am now trying to deal, the provision is necessary because our obligations under international law require it.
In respect of subsection (1), it is possible in exceptional circumstances, which I concede are difficult to envisage, that the point might be engaged. I am able to say that as regards the states parties and the non-states parties alike, the views of the ICC and the state concerned would be important factors in any decision. I ought to say what government policy is. It is quite clear that war criminals ought to be brought to justice. That is why--and everyone agrees--the Government have been so vigorous in their work on the statute. I am grateful to both noble Lords for commending us.
There may be exceptional circumstances in which subsection (4) might want to bite. As the way in which the noble Lord, Lord Avebury, has put the matter is a little more focused than the general objection, I shall look again to see whether I can give further assurance. I do not know and I must consult my noble friend Lady Scotland on the matter. I do not resile on the non-states party point.
The noble Lord, Lord Howell, asked a question relating to senior Ministers in high authority. I take his point: the statute, when effective, is entitled to strike the mighty as well as their obedient, or directed, servants. He asked whether it would be the occasion of a parliamentary Answer and I believe that it would be. As any such request is likely to be highly publicised, it seems to me inconceivable that a Question would not be asked about the exercise of the Secretary of State's discretion.
I am standing firm on the non-states parties. I realise that it may not be entirely attractive to both noble Lords. I shall look again at the point relating to subsection (1), although I cannot hold out a real prospect of a change of view. However, I might be able to give a firmer assurance about government thinking.
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