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Lord Campbell of Alloway: Having listened to the discussion, can I ask the noble Baroness whether the concerns of my noble friend Lord Howell could be met by an interpretative statement on ratification relevant to elements of crimes?
Lord Avebury: Before the noble Baroness responds to the question put by the noble Lord, could she also respond to a question that I wish to put to her? The noble Baroness mentioned the War Crimes Act 1991 as a precedent for the construction of these clauses. Were equivalent clauses included in the statutes which enabled us to ratify the International Criminal Tribunals on Rwanda and on the former Yugoslavia? Were similar provisions contained in those pieces of legislation?
Baroness Scotland of Asthal: I shall deal first with the point put to me by the noble Lord, Lord Campbell of Alloway. We think that the interpretation has been made clear on the face of the statute. We do not believe that it will cause any difficulty. It is clear that the court would be entitled to take those matters into consideration.
I have just received further briefing. It is true that, in relation to Rwanda and Yugoslavia, judges have elaborated elements themselves, although those have not been renegotiated. I shall clarify the matter more fully and I shall write to the noble Lord in due course.
Lord Howell of Guildford: In the light of what the noble Baroness has said, as well as her comments made after receiving a fresh supply of ammunition to enable her to give the Committee an up-to-date response, I should like to examine carefully what she has said about this matter. Despite the reassurances she has given as regards the elements of crimes and so forth, I am left with the feeling, on which I should like to dwell further, that we could find the statute law of this country being changed in relation to crimes as set down in the statute book in ways that are not consistent with our normal practice of passing primary legislation. Perhaps I have that wrong, but the noble Baroness had to deal with extremely complicated legal points here.
In my earlier remarks I should have commented on Amendments Nos. 117 and 118 which have been included in this grouping. However, they do not address quite the same point. The purpose of those two amendments was to probe whether any person other than the Attorney-General should be able to institute proceedings and where we would stand, once this legislation has been passed, in relation to so-called public interest litigators. They may seek this consent and perhaps move on to question the Attorney-General's decision and then even subject such a decision to judicial review. This is a matter of concern connected with what we have been discussing. However, it raises slightly different issues. Perhaps the noble Baroness covered this point, but if she did not, I should be grateful if she could reiterate that she has noted our concerns on this point and indicate whether she has a response to make to them.
Baroness Scotland of Asthal: I certainly note the concerns expressed by the noble Lord. Perhaps I may make it absolutely clear that as far as we are concerned these provisions are not concerned with retrospection. I think that I said that earlier. The offences were those negotiated in Rome for the statute, not those interpreted elements of crimes. Any new crimes, such as aggression, would require primary legislation in due course. I hope that I am able to reassure the noble Lord in relation to that matter.
Furthermore, perhaps I may remind noble Lords that the UK courts will not be bound by the decisions of other bodies, but it is right that they should be guided by them and be able to take such issues into consideration. I hope that I have now covered the points raised by the noble Lord.
The noble and learned Lord said: This amendment has been tabled in the name of the noble Lord, Lord Avebury. We appear to have been playing a game of "box and cox" throughout these debates. It covers very much the same ground as Amendment No. 110, tabled in the name of the noble Lord, Lord Lester, my noble friend Lord Goldsmith and myself. For that reason, the noble Lord, Lord Avebury, was kind enough to suggest that I might introduce the debate. In order to do that, I understand that at this point I shall have to move Amendment No. 108. I understand that the noble Lord, Lord Lester, is still occupied with the business of the Human Rights Committee. For that reason, he cannot be here to move the amendment himself.
It may be convenient for the Committee if, in moving Amendment No. 108, I speak also to Amendments Nos. 109 to 114 and 120 to 125. All the amendments address the same point, so this is not as complicated as the groupings list might indicate at first sight.
We have discussed the processes of the international court. Now we are discussing amendments to the domestic law of this country. The fundamental principle of the statute, set out in Article 1, is the principle of complementarity. The first question which falls to be decided before a prosecution may proceed is whether a state having jurisdiction in the case is investigating the offence or is already prosecuting. That is the burden of Articles 19 and 20.
It is expected that normally the offences in question shall be dealt with by individual states under their domestic law. It follows that they should make appropriate provision in their domestic law. As my noble friend Lady Scotland pointed out in answer to our previous debate, it is unlikely that there will be a flood of cases before the International Criminal Court because most will be decided elsewhere.
I know of no reason why the opportunity could not have been taken to extend to our domestic courts a universal jurisdiction in respect of offences under the statute. As I recollect, the only reason given in the debate on Second Reading was that the statute does not require it. At a later stage, my noble and learned friend was duly lectured by me on this point; he knows my feelings.
We should not sidle towards the matter at the edge of the crowd; we ought to be looking to give a lead here. However, that is only a subsidiary reason for the step required by this amendment. The fact that the statute does not require the introduction of universal jurisdiction is not a reason for individual states to omit it from their domestic jurisdictions, but to include it. If the offender is physically within the jurisdiction of the English courts, and the international court cannot try him--for example, because his own state is not a party to the statute and does not give consent--it would be a scandal if he were then allowed to go free because we have no jurisdiction to try him in this country.
If the reason for the omission is simply because we have not claimed universal jurisdiction in the past, I believe that there are two responses to that. First, this is not a situation in which the past is a role model for the future. It is a new departure in global affairs. At last the world is beginning to recognise that national sovereignty is not a sanctuary for evil doers. That is why we have a statute.
Secondly, it is not true that this is new to United Kingdom law. The concept of universal jurisdiction is not an alien life form to us. At Second Reading I referred to the Geneva Conventions Act 1957. Other noble Lords gave similar examples. If those who tender advice to my noble friend would find it convenient to have a list of examples of legislation in which accountability in the British courts for criminal offences is not conditional upon being a national of the United Kingdom, I suggest the Sexual Offences Act 1956, the Geneva Conventions Act, which I have mentioned, the Suppression of Terrorism Act 1978, the Taking of Hostages Act 1982, the Internationally Protected Persons Act 1978 and the Criminal Justice Act 1988. Other examples have from time to time been given. However, there may be room for arguing whether they are genuine examples. I believe that the ones I have given are genuine examples. There is no single jurisprudential principle running through them. Each provision has been introduced where it seems necessary to respect our international obligations, or where it is obviously fair and just and needed to protect vulnerable victims.
If the Bill remains unamended, we may prosecute someone for torture. However, if he had committed genocide, he would be immune from prosecution. The withholding of universal jurisdiction from our domestic courts would give rise to a number of anomalies. Let us imagine a situation in which people of various nationalities were involved and a force of mercenaries assembled, supporting one side in a conflict. Let us also suppose that a British and a foreign national were both involved in the same
If a foreign national is accused of an offence against a British national--by no means a fanciful situation in cases of aid workers visiting an increasing number of locations to assist civilians--and the alleged offender is found in the jurisdiction of the British courts, the authorities can take no step to punish the offence against the British victim. They must allow the alleged offender to make his way, possibly unmolested, to some safe haven that is not a signatory to the statute.
Another example arises out of the Pinochet case. If Senator Pinochet is found in our jurisdiction, he may be prosecuted for torture committed abroad. But if, instead, he murders his victims, there is no power to prosecute him for that offence. The list of anomalies is endless. I shall not weary the Committee with all of them. Other noble Lords may cite examples.
However, I should like to tender one more example--a situation in which United Nations workers and representatives of non-governmental organisations together seek to bring relief to the victims of a tragedy and a paramilitary group arranges a mass kidnapping in order to either extract a ransom or some concession from the international community. If any of the offenders are found in the jurisdiction of British courts, they may be prosecuted, under the Taking of Hostages Act 1982, for kidnapping the United Nations workers. However, the mercenaries, unless British subjects, cannot be prosecuted for offences against workers from the British NGOs, such as, for example, Mr Terry Waite.
If the Government's reasons relate to the difficulty of finding and producing evidence of crimes committed abroad, the successful prosecution of Antony Savoniuk should be reputation enough. In that case, the crimes were committed long ago. In cases of alleged offences committed more recently, the evidence would be more readily available. Belgium, Germany, Canada, New Zealand and South Africa appear to have no reservations about their capacity to mount successful prosecutions. Instead of receiving universal acclaim for the part played by the Government in the negotiations leading to the treaty, there is a danger that Britain will acquire a reputation as a safe haven for pariahs who dare not show their faces in any other country.
The human rights NGOs, to whom I referred in an earlier debate, are reinforced in respect of this issue. The Bar Human Rights Committee, of which my noble and learned friend the Attorney-General and my noble friend Lady Scotland will have affectionate recollections, has added its not inconsiderable voice to the debate. My noble friends may have seen a memorandum from Michael Birnbaum QC and Peter Carter QC.
In this venture the Government have many friends who seek to make the process for which we are legislating more effective. They really should listen to them. I beg to move.
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